Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1915-07-21

ehss Qut4ASous l0t8B funQ0~
mental and universally admitted principles
should DC kept In saind, that the federal
government IL one OF enumerated powers,
possessing SUCH powers only as nave been
actually granted TO it. and that ali other
powers OF legislation, though not enumer-
atcd and defined because It was unnecessary
ana perhaps 'nexpedient that they should be,
were retained by the states and remained in
'ne states after the adoption OF the fedsfai
constitution rs before. except so far as they
we're abridged by it,
II must also be admitted rs fundamental,
that before the federal government was created
the states had the right to exercise almost
every Legislative power, and among them,
undoubtedly, that Of establishing laws and
regulations Tor the preservation Of the wild
game within their borders for the common
good OF their people. = doctrine which seems
never TO heve been questioned il any juris-
dietion.
In State Snowman (si Maine. SO, IN, our
court said; THE fish In the waters OF the
State and the game in the forests belong to
the people of the State 10 their sovereign
capacity, who, through their representatives,
the legislature, have sole control thereof and
may permit or prohibit their taxing" This
doctrine is recognized BY all the American
courts aud has had the uniform approval of
the supreme court Of the United states whe n
ever the question has been considered by IL.
In Geer Connecticut nsi q. 8. sis). the lead
ing case perhaps on the subject. MIR. Justice
White Lnow the chief iusticel learnedly
snaiyred the principles upon which this
doctrine rests aud exhsustiveIy reviewed the
presidents In which it Is securely es.a hlished.
And Il would be needless indeed to cite here
tbs many authorities supporting this un-
questioned principle. that the states. prior to
the formation Of the national legislature. had
tbs power TO make laws and regulations for
the protection and preservation OF the Wild
game within their borders.
Has that power been granted to the federal
government II so, IL must be found in either
what is called the commerce clause. or the
general welfare clause, of the federal consti-
tuition.
The commerce clause authorizes Congress
ito regulate commerce with foreign nations,
and among the several states. and with the
Indian tribes. Certainly the passage OF wild
birds In their flight from one state TO another
10 not commerce between the states. How
ever difficult IL may be 10 define with pre-
eision tss term commerce as used In that
clause of the national constitution, &c Ia un-
donbtrsily limited TO the acts OF man, and
does not include the natural and uncon-
srollca movements Of Wild game. Nor can we
perceive any reasonable ground Tor a eon,eh-
,ioa that the commerce clause coniers on
Congress powers to regulate the taxing OF
Wild game within the states. Indeed. IL
wauld seem that all passioie contention on
ihis scoFs has been already held aatenahle by
the supreme court OF the United States in
several cases where the question has been sx-
hssstixeiy considered.
In the case OF Gecr y Connectfea,, supra,
the validity of statute of that state. which
prohibited the transportation of game out Of
the state, was involved. The case was carried
10 the Supreme court Of the United States on
the sole ground that as the game In question
was killed in the state lawfully, the statute
prohibiting its transportation ont of the state
vas in violation Of the commerce clause Of
the national constitution. But the court de-
eided otherwise, holding that the Wild animal
and bird life within . state belongs TO the
state in trust for the people OF the state, and
that the state has the authority to legislate
Tor its protection and preservation for the
com mon good. aud that such power Of legis-
lation embraces game that has been reduced
to the possession OF an individual by Ia ~fuliy
sIliiox IL In the state, or In other words. that
In view Of the peculiar nature OF such property
snd 1t ownership by the state for the benefit
OF all Its citizens, the state may prohibit Its
nsportation out of the state although law
fully killed within the state, because sueh n
prohibition may tend 70 restrict its lawful
killing within the state. ard the better pre-
serve IL for Its own people. And IL MAS there
held that while game. taken lawfully,
might be considered . subject Of commerce
within the state where taken, IL did not become
the sub beet Of interstate commerce within the
com mesce clause OF the federal constitution.
See also New York Ex. Rel. Siix Herterburg,
al U. y. ~, where IL 10 held that = statute OF
Ssw York prohibiting the possession OF GER
tai game during closed time did not violate
the commerce clause Of the federal eonstitu-
ton.
In Judson on interstate commerce. sec.
II, the author says; Thus the wild game
within state, ~ common law, belongs to the
sovereign, and In this country to the people
In their collective capacity, and the state.
therefore. has q right TO say that 1t shall not
become the subject OF commerce"
Our conclusion, therefore. Is thai the power
to iegisiate respecting the protection and
preservation OF Wild game within the states
was not conferred upon Congress through
the commerce clause Of the constitution.
Nor do VIC ind such power In the general
welfare clause, which reads As follows; THE
Congress shall have power to dispose Of and
make all needfai rules and regulations re-
specting the territory or other property be-
longing TO the United States; and nothing
in this constitution shall be construed as
TO prejudice any claims of the United States,
or OF any particular state"
We have already hereinbefore pointed out
as the universally accepted doctrine. that the
ownership OF wild game, so far as IL is capa-
bic of ownership, IL in the states for the
beusdt Of all their people in common. IL
follows, therefore, that Congress acquired no
power under the general welfare clause to
make regulations concerning wild game, be-
cause wild game IL not property belonging"
to the United States. And we need here only
repeat what has been before said In sub
stance, that the basic principle on which all
,hs dsrY sfona of both the state and feder