322 



Bird - Lore 



THE FEDERAL MIGRATORY- BIRD LAW IN THE COURTS 



Two prosecutions for violation of the 

 McLean Migratory-Bird Law, which 

 have come into the federal courts of late, 

 have attracted much attention because of 

 their bearing on the much-mooted ques- 

 tion, whether the law is constitutional. 

 In one of these cases, the presiding judge 

 declared in favor of the law, while the 

 other held the act to be unconstitutional, 

 and, therefore, not binding on the people. 

 The facts of these cases briefly are as 

 follows : 



On April i8, 1914, Alfred M, Shaw, a 

 banker and prominent resident of Del- 

 mont. South Dakota, was arraigned before 

 Judge J. D. Elliott in the federal court, 

 and pleaded guilty to an indictment 

 charging him with violation of the United 

 States laws regarding the shooting of 

 migratory game-birds. He was fined $100. 

 The fine is the first obtained for violations 

 of the law in that state. A lawyer ques- 

 tioned the constitutionality of the law, 

 but the court held that there was little 

 doubt of its validity. 



The other case occurred in Arkansas. 

 On May 28, 1914, Judge Jacob Trieber, 

 in the United States District Court for 

 the Jonesboro Division of the Eastern 

 District of Arkansas, rendered an opinion 

 adverse to the law. The case is recorded 

 as United States vs. Harvey C. Shauver. 

 Shauver killed birds in violation of the 

 McLean law, and was indicted for the 

 offense. The Government was represented 

 by W. H. Martin, United States District 

 Attorney, and by Col. Joseph H. Acklen, 

 of Tennessee, a member of the Advisory 

 Board of Directors of the National Asso- 

 ciation. 



The defendant demurred to the indict- 

 ment, and this was sustained by the 

 Judge. His decision was written at con- 

 siderable length, in which he cited many 

 previous court-decisions. In summing up, 

 he states, in part: 



The claim that the migratory birds are 

 the property of the United States must 

 be held untenable. It is also argued that 

 Congress has frequently exercised the 



power to regulate matters which could 

 only have been done under the general 

 police power, and the validity of these 

 acts, when attacked, as beyond the power 

 of Congress, has been upheld. Counsel 

 refers to the lottery acts, the anti-trust 

 acts, the national railway legislation, the 

 safety-appliance act, the quarantine laws, 

 the pure food and drug act, the act regu- 

 lating mailable articles, and other acts 

 of similar nature. But every one of these 

 acts was upheld under some provision of 

 the constitution, either that of the Post- 

 office Department, the commerce clause, 

 the taxing power, or some other grant. 

 Whenever Congress or the head of a 

 department went beyond that power, as 

 by including intrastate carriage with 

 interstate, the acts were declared uncon- 

 stitutional. 



It may be, as contended on behalf of 

 the Government, that only by national 

 legislation can migratory wild game and 

 fish be preserved to the people, but that 

 is not a matter for the court. It is for the 

 people, who alone can amend the consti- 

 tution, to grant Congress the power to 

 enact such legislation as they deem 

 necessary. All the courts are authorized 

 to do, when the constitutionality of legis- 

 lative acts is questioned, is to determine 

 whether Congress, under the constitu- 

 tion as it is, possesses the power to enact 

 the legislation in controversy; their 

 power does not extend to the matter of 

 expediency. If Congress has not the 

 power, the duty of the court is to declare 

 the act void. The court is unable to find 

 any provision in the constitution authoriz- 

 ing Congress, either expressly or by 

 necessary implication, to protect or regu- 

 late the shooting of migratory wild game 

 when in a state, and is, therefore, forced 

 to the conclusion that the act is uncon- 

 stitutional. The demurrer to the indict- 

 ment will be sustained. 



About three weeks after rendering the 

 above opinion. Judge Trieber, yielding to 

 the plea of counsel, agreed to re-open the 

 case, so there is a possibility that in the 

 end he may be led to reverse his own 

 former decision. 



Now what will be the practical effect of 

 these two decisions? In the North Dakota 

 case, a precedent has been established, 

 which all bird-protectionists will applaud, 

 and which will have a tendency to 

 strengthen the law. In the other case, 

 it will mean that probably no further 



