50 GAME REFUGES. 



deer, 100; grizzly bears, 50; black bears, 100; pumas, 100; gray wolf, 

 none; coyotes, 400; and pelicans, 1,000. 



Mr. Mondell. I do not think I said there were no moose in the 

 Yellowstone Park; I said the moose country. The country in 

 which the moose live, grow, and breed is not by any means wholly 

 in the Yellowstone Park. Of course, the park is right up against 

 it, and the moose in the summer time are all over that entire region. 

 In the winter they are almost wholly south of the park. 



(Thereupon the subcommittee adjourned.) 



MEMORANDUM ON THE CONSTITUTIONALITY OF THE BILL TO ESTABLISH GAME REFUGES 

 IN NATIONAL FORESTS. 



[Submitted by John H. Wallace, jr. , Commissioner Alabama Department of Game and Fish.] 



(1) The fundamental principle underlying the bill, namely, the setting aside by the 

 Government of parts of the public lands for the protection of game, is not new in the 

 legislation of Congress, as witness (a) the act of Jaunuary 24, 1905 (33 Stat. 614), author- 

 izing the President to designate areas in the Wichita Forest Reserve, Kans., "for the 

 protection of game animals and birds and be recognized as a breeding place therefor" ; 

 (6) the act of June 29, 1906 (34 Stat., 607), authorizing the President to designate areas 

 in the Grand Canyon Forest Reserve, Ariz., "for the protection of game animals 

 and be recognized as a breeding place therefor' '; (c) the act of June 28, 1906 (34 Stat., 

 536, now sec. 84 of the Penal Code), prohibiting under penalty, "any person to hunt, 

 trap, capture, willfully disturb, or kill any bird of any kind whatever or take the 

 eggs of such birds on any lands of the United States which have been set apart or re- 

 served as breeding grounds for birds by any law, proclamation, or Executive order, 

 except under such rules and regulations as may be prescribed from time to time by 

 the Secretary of Agriculture." 



(2) The United States with respect to its public lands within a State has all the 

 rights of a private proprietor to maintain its possession and prosecute trespassers and 

 may legislate to this end even though such legislation involve the exercise of police 

 power. (Camfield v. United States, 167 U. S., 518.) 



The provision in the Constitution (sec. 3, Art. IV) providing that "Congress shall 

 have power to dispose of, and make all needful rules and regulations respecting, the 

 territory or other property belonging to the United States," is primarily a grant of 

 power to the United States of control over this property, and this control is exercised 

 by Congress to the same extent that an individual can control his property, and it is 

 for Congress and not for the courts to determine how the public lands shall be admin- 

 istered. (Light v. United States, 220 U. S., 523.) 



(3) A private proprietor of lands in any State has the right, independently of any 

 statute on the subject, to forbid persons coming upon his lands for the .purpose of 

 hunting, and he need give no one a reason for doing so. If the law were otherwise, 

 he would hold his property subject to be used for hunting by others without his per- 

 mission and against Ms interests. Certainly the United States, with respect to its 

 lands, has the same power to forbid persons coming on these lands for the purpose of 

 hunting. That is all that this bill proposes. The question as to who owns the game 

 is as foreign to the question of the right of the United States to prevent hunting on its 

 lands as to the right of the private proprietor to prohibit hunting on his lands. 



It is apprehended that in most, if not all, of the States statutes are in force pres- 

 cribing in what manner the owner of lands shall warn the public not to hunt thereon . 

 These are popularly referred to as "posting laws." It did not require these statutes 

 to enable the owners of the lands to prevent persons from hunting thereon, but inas- 

 much as, unless the lands were posted against hunting persons might not know that 

 the owners objected to their hunting, the statutes prescribe in what manner the owner 

 shall make known his objections. The pending bill, after exercising the right of the 

 United States to prevent hunting upon certain areas in the national forests, provides 

 for the designation of the lands upon which hunting is not to be permitted and for 

 the posting of these areas. 



(4) Former Attorney General Knox, while he was Attorney General, rendered two 

 very exhaustive opinions upon the fundamental principle involved in this bill, and 

 came to the conclusion in both that there was not the slightest doubt of the power of 

 Congress to set aside portions of the public lands for the protection of game. (23 Op. 

 Atty. Gen., 589; H. Doc. No. 321, 57th Cong., 1st sess.) 



