The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-05-28
GAME BIRD MIGRATION Law
According 20 the Best Authorities the
Lacey Act Is Unconst ItutIonal.

|
To THE EDITOR OF THE suN--Sr. My
sympathies are so much with pr. Horn
aday and other enemies of the game hog
that regret that II is impossible to think
that the Lacey act, imposing certain re-
strictions by the United States on hunters
| within the States. can be sustained, even
under the commerce clause Of our national
| Constitution
love the woods and fields and their
inhabitants as much as the distinguished
naturallsts. and | have never. In a long
experience, shot game except for food for
the camp; and IL I could would entirely
prevent the sale of game for food at all.
But we gain nothing by blinking the facts,
and In this case they are that the United
states has no power to regulate the sub
Ject at all.
As long ago as 1895 the Supreme Court
or the United States, In Geer VS. State OF
Connecticut. 161 U. s., b19, held that game.
even after 1t was killed. was not the sub
Ject OF interstate commerce. The whole
subject was discussed. and II was held
that the killing and transportation OF
game was subject to State rules. and that
the states might make such enactments
as they pleased Mr.. Justice White, now
our distinguished Chief Justice. wrote the
prevailing opinion. The language used is
not merely inferential hut IL the basis of
decision. Further. II was to the police
power OF the State that the regulation OF
the subject was ascrhed the decisions
are uniform that the United States has
no police powers The court said:
The adJudlcated cases recognizing the
right of tho States to control and regulate
the common property in game are numerous
In McGrady vs.. Virginia % u. s.. 3e5. the
power OF the state Of Virginia to prohibit
citizens OF other states from planting
oysters within the tide waters Of the State
was upheld by this court In Manchester
va. Massachusetts. l3e U. Is, $40. the author
ity OF the state Of Massachusetts to control
and regulate the catching OF fish within the
bays OF the state was also maintained.
The common ownership. and its
resulting responsibility In the state, Is thus
stated in well considered opinion OF tho
Supreme Court Of California; The wild
game within a state belongs to the people
In their collective sovereign capacity. II Is
not the subject OF private ownership, except
In 80 far as the people may elect TO make
II so; and they may, II they see nj. ALSO
iutely prohibit the taking Of II, or traffic
and commerce In II. II II IN deemed neces-
sary for the protection or preservation OF
the public good" tEx parte Mailer, 100 Cal.
476) The same view has been expressed by
the Supreme Court OF Minnesota, AS follows:
I'VE take II to be the correct doctrine In
this country that the ownership Of Wild ami
mails. so far as they are capable OF owner
ship. is In the state. not as a proprietor
puN III It's rNNtItlkU NNpdNlNN M lle rtpIe-
sentative and for the benefit Of all It's people
in common" State VS. Rodman, IS MINI.
500
After noticing and disposing of certain
argumentative propositions the court pro-
ceeds:
Granting that tho dealing with game
killed within the State, under the pro-
vision In question. created internal state
commerce. II does not follow that such in
ferual beCanR ueCpssarliy 10
subject matter OF interstate commerce. and
therefore under the control OF the Constitu-
ton OF the United States. The distinction F..
between Internal and external and Interstate I
commerce Is marked, and has always been /
recognized by this court.
In the whole case the court used the ,
word state" in It's well known sense OF a
State OF the American Union, and not In |
the sense Of the internationai law writer's .
an independent power or nation. In |
deed, the whole opinion proceeds upon the .
distinction between State and national |
powers, as outlined In the Constitution : |
while to strengthen its conclusion IT refers !
IN the latter part of the opinion to the |
fact that the right of the State to regulate |
the whole subject was based on its police /
power. over long period the Supreme |
Court OF the United States has dist!n- |
guished between the States and the United !
States by reason of the former possessing /
police power and the latter not having II.
II says:
The right to preserve game nows from the |
undoubted existence in the State OF a police |
power to that end, which may be none tho .
less er,ciently called into play, because. by |
doing so. Interstate commerce may be re-
motely and indirectly affected.
Indeed. It staggers the Imagination to |
hold that the migration Of game birds. |
which has heretofore been the smile for .
all that was uncontrolled and uncon-
trollabe by man. IL commerce at all, |
do not believe that any court, much less
court like the Supreme Court OF the
United States. will ever so hold. Not even
the warped intelligence OF expansionists
has discovered any clause other than the
commerce clause to Justify the Lacey act.
NEW YORK. May 81. T. J. JOHNSTON.