SK Issued June 10, l'J20. UNITED STATES DEPARTMENT OF AGRICULTURE, DEPARTMENT CIRCULAR 102. Contribution from the Office of the Solicitor. ROBERT W. WILLIAMS. Solicitor. THE MIGRATORY BIRD TREATY. Decision of the Supreme Court of the United States sustaining the constitutionality of the Migratory Bird Treaty and Act of Congress to carry it into effect. Supreme Court of the United States. No. 609— October Term, 1919. Appeal from the District Court of the United States The State of Missouri, appellant, vs. Ray p. Holland, United States [ for the Western District of Game Warden. J Missouri. [April 19, 1920.] Mr. Justice Holmes delivered the opinion of the Court. This is a bill in eciuity brought by the State of Missouri to pre- vent a game warden of the United States from attempting to en- force 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 Amenchnent, and that the acts of the defendant done and threatened under that authority invade the sovereign right of the State and contravene its will manifested in statutes. The State also alleges a pecuniary interest as owner of the wild birds within its borders and otherwise, admitted by the Government to be sufficient, but it is enough that the bill is a reasonable and proper means to assert the alleged quasi sovereign rights of a State. Kansas v. Colorado, 185 U. S. 125, 142. Georgia v. Tennessee Cop- per Co., 206 U. S. 230, 237. Marshall Dental Manufacturing Co. v. Iowa, 226 U. S. 460, 462. \ motion to dismiss was sustained by the District Court on the ground that the Act of Congress is con- stitutional. 258. Fed. Rep. 479. Ace. United States v. Thompson, 258 Fed. Rep. 257; Vnited States v. Rockefeller, 260 Fed. Rep. 346. The State appeals. 8970-20 ^ ' ^ ^SSd^onogrrttV^ 2 Drpaiiiucnl CArcular 10'2, T. S. Dept. of Agriciiltnre. On December s. I'M 6, a treaty between the United States and Great Britain was prochiinKMl by tlie President. It recited that many species of birds in their annual migration 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 vegetation, but were in danger of extermination through lack of adequate protection. It therefore provided for specified 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 o, 191 S, entitled an act to give effect to the convention, proiiibited the killing, capturing or selling any of the migratory birds included in the terms of the treaty except as per- mitted l)y regulations comjiatible with those terms, to be made by the Secretar}' of Agriculture, llegulations 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 interference with the rights reserved to the States. To answer this question it is not enough to refer to the Tenth Amendment, reserving 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 maile 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 Gov- ennnent. Tlie language of the Constitution as to the supremacy of treaties ])eing general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed. It is said tliat a treaty can not be valid if it infringes the Consti- tution, 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 can not 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. McCiiUagh, 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. Connecticut, 161 l\ S. 19, this control was one that Congress ha ment is supposed to app y now wi^ iQft^lJil forci OCT 3 1933 ce. The same argu- i \Ci-2 0Ci/ Migratory Bird Treaty. 3 ^ Whether the two cases cited were decided rightly or not they .•can not be accepted as a test of the treaty power. Acts of Congress tare the supreme hiw of the kind only when made in pursuance of ~~the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to cjuestion whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no c{ualifications to the treaty-making power, but they must be ascertained in a different way. It is obvious that there may ha matters of the sharpest exigency for the national well- being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, "a power which must belong to and somewhere reside in every civilized Government" is not to be found. Andrews v. Andrews, 188 U. S. 14, 33. What was said in that case with regard to the powers of the State applies with equal force to the powers of the nation in cases where the States individually are incompetent to act. We are not yet dis- cussing the particuler case before us but only are considering the validity of the test proposed. With regard to that we may add that when we are dealing with words that also are a constituent Act, like the Constitution of the United ^States, we must realize that they have called into life a being the development of which could not have been foreseen completeh' by the most gifted of its begetters. It was enough for them to realize or to hope that the}- had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experi- ence and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohil)itory words to ])e found in the Constitution. The only question is whetlier it is f()rbi(kk^n by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this countiy has l)e- come in deciding what that amendment has reserved. The State, as we have intimated, founds its claim of exclusive authority upon an assertion of title to migratoiy birds, an assertion that is embocUed in statute. No doubt it is true that as l)etween a State and its inhabitants the State may regulate the killing and sale of such l)ii'(ls, but it does not follow that its authority is exclusive of paramount powers. To j)ut the claim of the State upon title is to lean u])on a slender reed. Wild birds are not in the poss(^ssion of nnyone, and possession is the ])egiiniing of owniM'ship. The wlioh^ foundation of the State's rights is the presence within their juris(hction of birds that yesterchiy had not arrived, to-morrow may be in anotlier State, and in a week a tliousand milt^s away. If we 4 Department Circular 102, U. S. Dept. of Agriciiltiirr. are to be accurate we can not put the case of the State upon higher ground than that the treaty deals with creatures that for the moment arc within the State borders, that it must be carried out by officers of the United States within the same territory, and that but for the treaty the State would be free to regulate this subject itself. As most of the laws of the United States are carried out within the States and as many of them deal with matters which in the silence of such laws the State might regulate, such general grounds are not enough to support ^lissouri's claim. Valid treaties of course "are as binchng witliin the territorial limits of the StiJtes as they are effective throughout the dominion of the United States." Bald- win V. Franks, 120 U. S. 678, 683. No doubt the great body of pri- vate relations usually fall within the control of the State, but a treaty may override its power. We do not have to invoke the latter developments of constitutional law for this proposition; it was recog- nized as early as Hophins v. Bell, 3 Cranch. 454, with regard to statutes of limitation, and even earlier, as to confiscation, in Hare V. Hylton, 3 Dall. 199. It was assumed by Chief Justice Marshall with regard to the escheat of land to the State in Chirac v. CTiirac, 2 Wheaton, 259, 275. Hauenstein v. Lynliam, 100 U. S. 483. Oeo^- roii V. Rigfjs, 133 U. S. 258. Blythe v. Hinckley, 180 U. S. 333, 340. So as to a limited jurisdiction of foreign consuls within a State. ^Vildenhus' Case, 120 U. S. 1. See Ross v. Mclntyre, 140 U. S. 453. Further illustration seems unnecessary^, and it only remains to con- sider the application of established rules to the present case. Here a national interest of veiy nearly the first magnitude is in- volved. It can be protected only by national action in concert with that of another power. The subject matter is onl}- transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut ofl^ and the protec- tors of our forests and our crops are destroyed. It is not suffi- cient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forl)idden to act. We are of opinion that the treaty and statute must be upheld. Gary v. South Dalcota, 250 U. S. 118. Decree affirmed. Mr. Justice Van Devanter and Mr. Justice Pitney dissent. WASHINHTOX : (50VERNMENT miXTING OKFICE : 1920 LIBRARY OF CONGRESS 002 903 444 8