Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1914-08-13
STATE OFFICIALS RECEIVE COP.
les OF ADVERSE COURT
DECISION.
PRESIDING JUDGE SUGGESTS
APPEAL TO HIGH COURT
Right OF, Federal Regulation Of Misra-
tory Birds Questioned and Doubt
Cast Upon Powers Of Government to
Control Without Amendment Of the
Constitution.
Special to Times-Republican.

Des Moines, Aug 13.-Fate of migra-
tory birds in the United States will de-
pend on the century old controversy
between broad construction and mar
row construction of he United States
constitution Before another season
the courts will have the matter
thrashed out to finish.
Last spring when the question came
up to the state game warden as to
whether he should issue orders TO have
employees of the state undertake the
enforcement OF a regulation of the
agricultural department az Washington
ton forbidding spring shooting O.
ducks, he sought legal advice in the
proper way. No formal opinion was
rendered but c. A Robbins. assistant
attorney general, facetiously reported
that about the only support in the con-
stitution he was able to find for the
migratory game law was a clause Civ
ing congress the right TO make regula-
tions for capture on land and sea" Az
least he wasn't able to say that as
matter of law. persons in the employ
port a doubtful regulation on birds.
This week the lawyers have received
in the Federal Reporter the tex, of a
very interesting decision on the migra-
tory bird law by federal court.
One H C. Shaver was indicated for
violation Of the migratory bird law
and demurred to the indictment before
Judge Trieber OF the eastern district
of Arkansas, and judge sustained the
demurrer. holding the entire law I'M
constitutional. On rehearing and pre-
senting additional arguments he adj
hered to his opinion, and advised 60
ing TO the higher courts.
Birds Property of States.
The first claim Of the government at
torney's. In support Of the law and
regulations. was that migratory birds
are the property of the nation. But the
courts have all held that wild animals
are "owned by the states, not as pro-
prietors, but in their sovereign capacity
as the representatives for the benefit
of the people IN common"
Then there was the claim that the
law was IN accord with one of those
implied attributes Of sovereignty in
which the national government has
concurrent jurisdiction with the states;
but this is rejected at once
The question of application OF the in
terstate commerce clause came up on
demurrer and the Judge quoted from
decisions Of the supreme court show
ing this would not apply at all. a wild
game case having been decided years
ago
The police power Of the nation was
cited as sufficient to carry the regula-
lions. as exercised in lottery acts. anti
trust acts, the safety appliance acts, the
pure food laws, the white slave acts,
etc; but the court pointed out that
these were all upheld under some
special clause OF the constitution.
ut may be-" said the Judge, "as con-
tended on behalf Of the government
that only by national legislation can
migratory wild game and fish be pre-
served to the people, but that is not a
matter for the courts. 1t is the people
who alone can amend the constitution
to grant congress the power to enact
such legislation as they deem neces-
sary All the courts are authorized 20
determine is whether congress. under
the constitution as It IS, possesses the
power to enact the legislation in con-
troversy; their power does not extend
20 the matter Of expediency. II con-
gress has not the power the duty of
the court is to declare the act void. The
court is unable TO find any provision
in the constitution authorizing con-
gress. either expressly or by necessary
implication, to protect or regulate the
shooting Of migratory wild game when
IN a state. and is therefore forced &c
the conclusion that the act is uncon.
stitutionaL''