760 
FOREST AND STREAM 
Dec. 13, 1913. 
Published Weekly by the 
Forest and Stream Publishing Company 
Chas. A. Hazen, President 
W. G. Beecroft, Secretary. Charles L. Wise, Treasurer. 
22 Thames Street, New York. 
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Entered in New York Post Office as Second class matter. 
Attorney General Carmody Says: 
“On November 5th, 1913, at the request of 
the Conservation Commission, I rendered an 
opinion to the effect that the Federal Migratory 
Bird Law, known as the McLean Bill, is an in¬ 
valid exercise of federal power, inasmuch as the 
subject of the control of birds while resident in 
the state is entirely a subject of state regulation. 
That opinion was immediately attacked by officers 
of the New York Zoological Society and their 
criticisms sent broadcast throughout the state, in 
which the point of the opinion was entirely over¬ 
looked. The opinion was criticized as presump¬ 
tuous, as rendered in the interest of pot hunters, 
game hogs, etc., and as tending to defeat legisla¬ 
tion that has been carefully prepared and for 
many years urged before Congress. 
"These criticisms, no doubt arising from very 
worthy motives, are nevertheless doing a great 
deal of harm, in that they tend to bring chaos 
into the administration of the game laws in the 
State of New York. The McLean Law itself is 
an unfortunate result of the enthusiasm, ungov¬ 
erned and undirected by legal considerations, of 
those who are behind it. 
The State of New York has an elaborate and 
■complete system of laws governing game birds, 
.■song birds and wild birds of all kinds. Closed 
■seasons have been established in respect thereto 
and severe penalties imposed for violation of 
these laws. These laws go so far, in addition to 
■protecting birds native to this state, or stopping 
-within the state in their migrations, as to abso¬ 
lutely prohibit the importation into this state 
from any other state or territory, of the skin or 
foody or plumage of any birds coming from 
without the state, belonging to the same family 
•as those inhabiting the state. These laws also 
prohibit the offering for sale within this state for 
food purposes, whether killed within t'he state 
or without the state, of the dead bodies of game 
birds, except under license. 
“I mention these extreme cases as showing 
the extent to which the state has gone in pro¬ 
tecting birds covered by the McLean Law. These 
state laws have been passed largely because of 
the influence of members of the Zoological and 
other societies organized for the protection of 
birds and game. The Legislature, regardless of 
the party dominating it, has, according to the 
history of this legislation, responded to every 
sensible demand made upon it until, as a result, 
we have an advanced system of laws, carefully 
adjusted to our climate and to the birds and 
game within our state, whether permanently lo¬ 
cated there or located only during migrations 
from state to state. 
"These laws have been bitterly attacked from 
time to time, and have been defended by the state 
and upheld by its courts and by the federal courts 
as valid enactments within the police powers of 
the state. The last one to be attacked was that 
which was fathered by the zoological and orni¬ 
thological societies of the state and nation, a 
portion of which is above quoted, which prohibits 
the importation of the plumage, skin or carcasses 
of certain classes of birds, whether inhabitants of 
the state or not, provided they belong to the same 
family as those inhabiting the state. That law 
was attacked by millinery associations which had 
on hand very valuable quantities of plumes af¬ 
fected by this decision, and which it was claimed 
would be confiscated were the constitutionality 
of that law upheld. United with the millinery 
associations in that attack were several other or¬ 
ganizations representing a vast amount of capital 
and represented by the ablest lawyers in the coun¬ 
try. I defended the constitutionality of that Act 
and it was upheld by the United States Circuit 
Court as a valid exercise of the police power of 
the state. 
"Now, after all this has been done, after the 
Legislature has done its part and the courts of 
the state and Nation have ratified its work, after 
the subject has long been recognized as one for 
state, and not for federal, control, the Federal 
Government enacts a law in some respects less 
stringent and in others more stringent than our 
state laws for the protection of migratory and in¬ 
sectivorous birds. 
“What, then, is to become of the administra¬ 
tion of the statutes of New York State in the 
future? The Federal Government declared in 
the McLean Law that migratory game birds and 
insectivorous birds that do not remain perma¬ 
nently the entire year within the borders of any 
state or terirtory, ‘shall hereafter be deemed to 
be within the custody and protection of the Gov¬ 
ernment of the United States and shall not be 
destroyed or taken contrary to regulations here¬ 
inafter provided therefor.’ 
"This declaration upsets the decisions of all 
of the state courts and of the federal courts, 
holding that this is a subject for state, and not 
federal, control. This I pointed out at considera¬ 
ble length in the opinion I rendered the Con¬ 
servation Commission, citing numerous decisions 
of the United States Supreme Court upon similar 
subjects, upholding state and denying federal 
jurisdiction. It is fundamental that federal 
power and state power do not extend to the same 
subject. Where the one exists, the other is non¬ 
existent. 
"This is declared by Article X of the Federal 
Constitution, which reads: ‘The powers not dele¬ 
gated to the United States by the Constitution 
nor prohibited by it to the states are reserved to 
the states respectively, or to the people.’ 
“Nowhere in the Federal Constitution is such 
a power found as is declared by the McLean Law. 
From the beginning of our Government this and 
kindred powers have been recognized as belong¬ 
ing to the states, coming under their police pow¬ 
ers. Now, what happens? This is upset by a 
declaration of the Federal Government, carried 
into effect by the Federal Department of Agricul¬ 
ture, establishing, contrary to state legislation, 
regulations respecting the taking of migratory 
game birds. The practical effect of it is this: 
The State of New York, through its Conserva¬ 
tion Commission, is seeking to enforce the game 
laws of the state. A bureau of the Attorney 
General’s Office is engaged in prosecuting viola¬ 
tions of those laws. Suppose an arrest is made 
under the state law for an offense which would 
not be a violation of the federal law. The person 
arrested would immediately raise the question 
that, under the federal law, he has committed no 
crime, because the Federal Government has de¬ 
clared that hereafter this subject would be under 
the control of the Federal Government. Suppose, 
on the other hand, he is arrested under the fed¬ 
eral statute for an offense which would not be 
an offense under the state law. He immediately 
raises the question that he is not liable to a pen¬ 
alty under the state law, and we will have this 
state of affairs constantly before us and the 
courts constantly called upon to decide which 
jurisdiction is paramount, and instead of being 
able to enforce a law which we understand and 
have been enforcing for years, and which has 
been sufficient and effective, the whole subject is 
thrown into confusion. 
“Take one isolated case. The federal law 
provides that the open season for water fowl, in¬ 
cluding geese, brant, swan and river and sea 
ducks, is from September 16th to December 15th, 
except in Long Island, where it runs from Octo¬ 
ber 1st to January 15th. The state law provides 
that the open season runs from September 16th 
to January 10th, inclusive, except in Long Island, 
where it runs from October 1st to January 10th. 
In other words, the state law extends the season 
nearly a month longer than the federal law. In 
respect to some other kinds of game the open 
season is shorter under the New York statute. 
“The New York Law, it is proper to observe, 
is a scientific adjustment to our climate, made by 
our Legislature, which is supposed to understand 
the subject. The federal statute is an adjustment 
by those outside of the State of New York, who 
presumably have not the same knowledge as to 
the needs of our climate. It must necessarily 
follow that so long as these inconsistencies exist, 
neither game law will be effectively enforced. 
“It is undoubtedly necessary that the game 
laws of the various states should be brought into 
harmony, but this can not be done by superimpos¬ 
ing upon state authority, an authority that can 
not effectively foe enforced. 
“The ornithological societies and others who 
have criticized my opinion are mistaken in the 
effect which they give to that opinion. I have 
only stated in advance the dangers that lie in 
the way. The questions will be raised by those 
who are arrested during these conflicting periods, 
and the courts will have to determine the question 
and in my mind will determine, as the courts 
have all along determined, that the Federal Gov¬ 
ernment has no power of legislation over this 
subject. In its present stage it is a subject that 
should not be confused by pedantry or sentiment. 
It is a plain question of law upon an exceedingly 
important subject, and must be thus disposed of. 
I have offered to have a test case made at once, 
so as to have the legal questions settled. This 
the defenders of the law have declined. They 
answer that, whether the law be constitutional 
or not, it is humanitarian in its purposes and 
must not be attacked, and they threaten me with 
their organized hostility should I take any steps 
to have the legality of this law determined. Their 
threats will receive the consideration that they 
deserve. The subject, however, now has a far 
more important aspect than one that is personal 
to me or to the zoological societies. That ques¬ 
tion is: Shall the whole subject of game regula¬ 
tion be thrown into utter confusion by the mis¬ 
guided enthusiasm of its friends? 
“A law that is passed without jurisdiction is 
a bad law. It will not stand. It should not stand. 
However noble the purposes of the Migratory 
Bird Law, if it is in excess of federal power, it 
is a bad law. There is no question about the 
power of the states to deal with this subject. 
Here is where the influence of the friends of 
this measure should be exercised. That influence 
has always found, in this state, at least, a prompt 
response, whatever the situation be elsewhere.” 
