The Audubon Societies 



193 



Supreme Court of the United States 

 No. 609. October Term, 1919. 



The State of Missouri, Appellant 



V 



Ray P. Holland, United States Game- 

 Warden 



Appeal from the District Court of the 

 United States for the Western District 

 of Missouri. 



(April 19, 1920) 



Mr. Justice Holmes deliv^ered the opinion 

 of the Court. 



This is a bill in equity brought by the 

 State of Missouri to prevent a game-war- 

 den of the United States from attempting 

 to enforce the Migratory Bird Treaty Act 

 of July 3, 1918, c. 128, 40 Stat. 755, and 

 the regulations made by the Secretary of 

 Agriculture in pursuance of the same. The 

 ground of the bill is that the statute is an 

 unconstitutional interference with the 

 rights reserved to the States by the Tenth 

 Amendment, and that the acts of the de- 

 fendant done and threatened under that 

 authority invade the sovereign right of 

 the State and contravene its will mani- 

 fested in statutes. The State also alleges 

 a pecuniary interest, as owner of the wild 

 birds within its borders and otherwise, ad- 

 mitted by the Government to be sufficient, 

 but it is enough that the bill is a reason- 

 able and proper means to assert the alleged 

 cjuasi sovereign rights of a State. Kansas v. 

 Colorado, 185 U. S. 125, 142. Georgia v. 

 Tennessee Copper Co., 206 U. S. 230, 237. 

 Marshall Dental Manufacturing Co. v. 

 Iowa, 226 U. S. 460, 462. A motion to 

 dismiss was sustained by the Dis-trict 

 Court on the ground that the Act of 

 Congress is constitutional. 258 Fed. Rep. 

 479. Ace. United States v. Thompson, 258 

 Fed. Rep. 257; United States v. Rockefeller, 

 260 Fed. Rep. 346. The state appeals. 



On December 8, 1916, a treaty between 

 the United States and Great Britain was 

 proclaimed by the President. It recited 

 that many species of birds in their annual 

 migrations traversed many parts of the 

 United States and of Canada, that they 

 were of great value as a source of food and 

 in destroying insects injurious to vegeta- 

 tion, but were in danger of extermination 

 through lack of adequate protection. It 

 therefore provided for specilred close sea- 

 sons and protection in other forms, and 

 agreed that the two powers would take or 

 propose to their lawmaking bodies the 

 necessary measures for carrying the treaty 

 out. 39 Stat. 1702. The above mentioned 

 act of July 3, 1918, entitled an act to give 

 effect to the convention, prohibited the 

 killing, capturing or selling any of the 

 migratory birds included in the terms of 



the treaty except as permitted by regula- 

 tions compatible with those terms, to be 

 made by the Secretary of Agriculture. 

 Regulations were proclaimed on July 31, 

 and October 25, 1918. 40 Stat. 1812; 1863. 

 It is unnecessary to go into any details, 

 because, as we have said, the question 

 raised is the general one whether the 

 treaty and statute are void as an inter- 

 ference with the rights reserved to the 

 States. 



To answer this cjuestion it is not enough 

 to refer to the Tenth Amendment, reserv- 

 ing the powers not delegated to the United 

 States, because by Article II, Section 2, 

 the power to make treaties is delegated 

 expressly, and by Article VI treaties made 

 under the authority of the United States, 

 along with the Constitution and laws of 

 the United States made in pursuance 

 thereof, are declared the supreme law of 

 the land. If the treaty is valid there can 

 be no dispute about the validity of the 

 statute under Article I, Section 8, as a 

 necessary and proper means to execute the 

 powers of the Government. The language 

 of the Constitution as to the supremacy 

 of treaties being general, the question be- 

 fore us is narrowed to an inquiry into the 

 ground upon which the present supposed 

 exception is placed. 



It is said that a treaty cannot be valid 

 if it infringes the Constitution, that there 

 are limits, therefore, to the treaty-making 

 power, and that one such limit is that what 

 an act of Congress could not do unaided, 

 in derogation of the powers reserved to the 

 States, a treaty cannot do. An earlier act 

 of Congress that attempted by itself and 

 not in pursuance of a treaty to regulate the 

 killing of migratory birds within the States 

 had been held bad in the District Court. 

 United States v. Shauver, 214 Fed. Rep. 

 154. United States v. McCuUagh, 221 Fed. 

 Rep. 285. Those decisions were supported 

 by arguments that migratory birds were 

 owned by the States in their sovereign 

 capacity for the benefit of their people, 

 and that under cases like Geer v. Con- 

 necticut, 161 U. S. 19, this control was 

 one that Congress had no power to dis- 

 place. The same argument is supposed to 

 apply now with equal force. 



Whether the two cases cited were de- 

 cided rightly or not they cannot be accepted 

 as a test of the treaty power. Acts of 

 Congress are the supreme law of the land 

 only when made in pursuance of the Con- 

 stitution, while treaties are declared to be 

 so when made under the authority of the 

 United States. It is open to question 

 whether the authority of the United States 

 means more than the formal acts pre- 

 scribed to make the convention. We do 

 not mean to imply that there are no quali- 



