Supreme Court of the United States.

OCTOBER TERM, 1919.

No. 609.

THE STATE OF MISSOURI, Appellant,

VS.

RAY P. HOLLAND, United States Game Warden.

APPEAL FROM THE DISTRICT COURT OF THIE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI.

BRIEF OF APPELLANT.

STATEMENT.

This suit involves the constitutionality of the "Migratory Bird Treaty Act" and is an endeavor upon the part of the State of Missouri, appellant, to preserve intact its sovereignty and to retain unimpaired the powers reserved to it by the tenth amendment to the Federal Constitution.

The bill (Printed Abstract, pp. 2 to 4, inclusive) alleges the arrest and prosecution of citizens of Missouri and the threatened arrest and prosecution of other citizens by the United States Game Warden, for violations of the Migratory Bird Treaty Act, and seeks, on account of the unconstitutionality of such act, to enjoin such arrests and prosecutions and the enforcement of the act in any wise, upon the following grounds:

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(a) That the arrests and prosecutions and threatened arrests and prosecutions by the Game Warden constitute an invasion of the sovereignty of the state of Missouri and a violation of the laws of Missouri upon the subject.

(b) That the enforcement of the Federal act constitutes an interference with the property right of the people, held in trust by the State, to the wild game within its borders.

(c) That the arrest and prosecution of citizens of Missouri for the exercise of lawful privileges conferred by the state prevented the discharge of the duty of the State to protect its citizens in the enjoyment of such privileges.

(d) That the destruction of the revenues of the State derived from hunters' licenses was threatened by the enforcement of the Federal act.

United States Game Warden Holland, by Mr. Francis M. Wilson, United States District Attorney, moved to dismiss for want of equity in the bill, which said motion (Printed Abstract, pp. 5 and 6) was sustained; and thereupon, complainant declining to plead further, judgment and decree dismissing the bill was entered.

The cause involving the construction and application of the Constitution of the United States and the constitutionality of a law of the United States and the validity and construction of a treaty made under the authority of the United States being drawn in question, appellant prosecutes its appeal from said judgment to this Court.

Subsequent to the enactment by Congress of the above Migratory Bird Treaty Act, to-wit: on the 31st day of July, 1918, the President of the United States issued his proclamation approving and proclaiming certain regulations made by the Secretary of Agriculture pursuant to the provisions of said above Migratory Bird Treaty Act. Under said regulations the open season in Missouri for waterfowl (except wood duck, eider ducks, and swans), coot, gallinules, and Wilson snipe and jacksnipe, is fixed as from September 16th to December 31st. (Post. page 16.)

The state of Missouri, by virtue of its trust right as sovereign and in the exercise of its reserved powers of police, has, in fact, since at least the year 1874 (Laws of Missouri,

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1874, page 108), continuously asserted and exercised the absolute control of wild game within her own borders. Article II of Chapter 49, Revised Statutes of Missouri, 1909, and an act for the preservation of fish and game, approved March 24, 1915, Laws of Missouri, 1915, pages 289 to 296, inclusive, prohibits the taking of wild game, including the aforesaid waterfowls specified in said proclamation of the President of the United States, except by persons who have been granted permission or license for such purpose, and the taking of said wild game is prohibited during certain seasons of the year. Under the provisions aforesaid the taking, killing and using of the aforesaid waterfowls is permitted and is lawful between the 15th day of September of each year and the 30th day of April of the following year. (Post. page 13.)

It thus appears that the provisions of the federal law and the provisions of the laws of the state of Missouri, relating to the taking, killing and use of migratory game birds, are in direct conflict.

Appellant contended below, and contends here, that the authority of the state over wild game within its borders is paramount under either of two views:

First. The trust right of the state, which in its sovercign capacity as the representative of and for the use and benefit of all its people in common, holds the title to all wild game within its borders, the ownership of such wild game being that of its people in their united sovereignty.

Second. The police power of the state.

This contention of the power of the state over wild game within its borders necessarily draws in question the validity and construction of a treaty relating to migratory game birds, made between the United States of America and Great Britain on the 16th day of August, 1916, and proclaimed December 8th, 1916. (Post. page 5.)

It involves also the construction and application of the Constitution of the United States, particularly Article X of the amendments thereto, and the constitutionality of a law of the United States known as the "Migratory Bird Treaty Act," approved July 3rd, 1918, U. S. Compiled Statutes, 1918, page 1795. (Post. page 9.)

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This is true because the treaty between the United States of America and Great Britain, and the Migratory Bird Treaty Act of Congress upon their face apparently assume and assert the paramount authority and power of the Federal Government over migratory game birds within the borders of any state of the United States of America; consequently, by necessary implication, they deny to the state of Missouri and to each of the several states of the Union the right of sovereignty and the possession of reserved power, in so far as such sovereignty and reserved power affect the taking, killing and use of wild game within the borders of such states.

The Honorable Arba S. Van Valkenburgh, Judge of the District Court, in his opinion filed in this case, said that the issues tendered by the pleadings present two questions:

(1) the validity of the law (Migratory Bird Treaty Act) standing by itself, as affecting the relative power of the Federal Government and of the states;

(2) the other, the status of the treaty (between the United States of America and Great Britain), to give effect to which the so-called Migratory Bird Treaty Act, was passed. (Printed abstract of record, page 8).

In this opinion the District Court held:

First, that upon authority and principle the Migratory Bird Treaty Act, in the absence of treaty, would be unconstitutional and invalid.

Second, that the Migratory Bird Treaty Act, being in aid of the treaty between the United States of America and Great Britain, became, by virtue of such treaty, constitutional and valid.

The latter holding, as applied to the internal affairs of a state, we believe involves a fundamental contradiction. Under the facts of the instant case, the appellant contends that, in its ultimate analysis, such holding leads directly to the elimination of all reserved and unsurrendered powers belonging to the several states of the Union. It annuls the tenth amendment to the Constitution of the United States and annihilates the idea that the Constitution reserves to the states any powers which the Federal Government under the guise of a treaty may not usurp.

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The treaty between the United States of America and Great Britain, relating to migratory game birds, formal parts omitted, is as follows:

CONVENTION BETWEEN UNITED STATES

OF AMERICA AND GREAT BRITAIN.

"ARTICLE I.

The High Contracting Powers declare that the migratory birds included in the terms of this convention shall be as follows:

(a) Anatidae, or waterfowl, including brant, wild ducks, geese and swans.

. (b) Gruidac, or cranes, including little brown, sandhill, and whooping cranes.

(c) Rallidae, or rails, including coots, gallinules, and sora, and other rails.

(d) Limicolae, or shore birds, including avocets, curlew, dowitchers, godwits, knots, oyster catchers, pharlaropes, plovers, sandpipers, snipe, stilts, surf birds, turnstones, willet, woodcock and yellowlegs.

(e) Columbidae, or pigeons, including doves and wild pigeons.

2. Migratory insectivorous birds: Bobolinks, catbirds, chickadees, cuckoos, flickers, flycatchers, grossbeaks, humming birds, kinglets, martins, meadowlarks, nighthawks or bullbats, nuthatches, orioles, robins, shrikes, swifts, tanagers, titmice, thrushes, vireos, swallows, warblers, waxwings, whippoorwills, woodpeckers, and wrens, and all other perching birds which feed entirely or chiefly on insects.

3. Other migratory nongame birds: Auks, auklets, bitterns, fulmars, gannets, grebes, guillemots, gulls, herons, jacgers, loons, murres, petrels, puflins, shearwaters and terns.

ARTICLE II.

The High Contracting Powers agree that, as an effective means of preserving migratory birds, there