State of Missouri v. Holland

No. 609

Argued March 2, 1920

Decided April 19, 1920

252 U.S. 416

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF MISSOURI

Syllabus



Protection of its quasi-sovereign right to regulate the taking of game

is a sufficient jurisdictional basis, apart from any pecuniary interest,

for a bill by a State to enjoin enforcement of federal regulations over

the subject alleged to be unconstitutional.



The Treaty of August 16, 1916, 39 Stat. 1702, with Great Britain,

providing for the protection, by close seasons and in other ways, of

migratory birds in the United States and Canada, and binding each power

to take and propose to their lawmaking bodies the necessary measures for

carrying it out, is within the treaty-making power conferred by Art. II,

 2, of the Constitution; the Act of July 3, 1918, c. 128, 40 Stat. 755,

which prohibits the killing, capturing or selling any of the migratory

birds included in the terms of the treaty, except as permitted by

regulations compatible with those terms to be made by the Secretary of

Agriculture, is valid under Art. I,  8, of the Constitution, as a

necessary and proper means of effectuating the treaty, and the treaty

and statute, by bringing such birds within the paramount protection and

regulation of the Government do not infringe property rights or

sovereign powers respecting such birds reserved to the States by the

Tenth Amendment.   [252 U.S. 417]



With respect to right reserved to the State, the treaty-making power is

not limited to what may be done by an unaided act of Congress.



258 Fed. Rep. 479, affirmed.



The case is stated in the opinion. [252 U.S. 430] HOLMES, J., lead

opinion



MR. JUSTICE HOLMES delivered the opinion of the court.



This is a bill in equity brought by the State of Missouri to prevent a

game warden of the United States from attempting to enforce the

Migratory Bird Treaty Act of [252 U.S. 431] 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 Amendment, 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 Copper Co., 206 U.S. 230, 237.  Marshall

Dental Manufacturing Co. v. Iowa, 226 U.S. 460, 462.  A motion to

dismiss was sustained by the District Court on the ground that the act

of Congress is constitutional.  258 Fed. Rep. 479.  Acc., United States

v. Thompson, 258 Fed. Rep. 257; United States v. Rockefeller, 260

Fed.Rep. 346.  The State appeals.



On December 8, 1916, a treaty between the United States and Great

Britain was proclaimed by the President.  It recited that many species

of birds in their annual migrations traversed certain 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 seasons 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 3, 1918, entitled an act to

give effect to the convention, prohibited the killing, capturing or

selling any of the migratory birds included in the terms of the treaty

except as permitted by regulations compatible with those terms, to be

made by [252 U.S. 432] the Secretary of Agriculture.  Regulations 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,  2, the power to make treaties is delegated

expressly, and by Article VI treaties made 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,  8, as a necessary and proper means to execute

the powers of the Government.  The language of the Constitution as to

the supremacy of treaties being general, the question before us is

narrowed to an inquiry into the ground upon which the present supposed

exception is placed.



It is said that a treaty cannot be valid if it infringes the

Constitution, 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

cannot 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. McCullagh, 221

Fed.Rep. 288.  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 U.S. 519, this control was one that Congress had no

power to displace.  The same argument is supposed to apply now with

equal force. [252 U.S. 433]



Whether the two cases cited were decided rightly or not, they cannot be

accepted as a test of the treaty power.   Acts of Congress are the

supreme law of the land 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 question 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 qualifications to

the treaty-making power, but they must be ascertained in a different

way.  It is obvious that there may be matters of the sharpest exigency

for the national wellbeing 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 States applies with equal

force to the powers of the nation in cases where the States individually

are incompetent to act.  We are not yet discussing the particular 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 completely by the most gifted of

its begetters.  It was enough for them to realize or to hope that they

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

experience, and not merely in that of what was said a hundred years ago.

 The treaty in question does not contravene any prohibitory words to be

found in the Constitution.  The only question is whether [252 U.S. 434]

it is forbidden by some invisible radiation from the general terms of

the Tenth Amendment.  We must consider what this country has become 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 migratory birds, an assertion that is

embodied in statute.  No doubt it is true that, as between a State and

its inhabitants, the State may regulate the killing and sale of such

birds, but it does not follow that its authority is exclusive of

paramount powers.  To put the claim of the State upon title is to lean

upon a slender reed.  Wild birds are not in the possession of anyone,

and possession is the beginning of ownership.  The whole foundation of

the State's rights is the presence within their jurisdiction of birds

that yesterday had not arrived, tomorrow may be in another State, and,

in a week, a thousand miles away.  If we are to be accurate, we cannot

put the case of the State upon higher ground than that the treaty deals

with creatures that, for the moment are 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 Missouri's claim.  Valid treaties, of course, "are as binding

within the territorial limits of the States as they are elsewhere

throughout the dominion of the United States."  Baldwin v. Franks, 120

U.S. 678, 683.  No doubt the great body of private relations usually

fall within the control of the State, but a treaty may override its

power.  We do not have to invoke the later developments of

constitutional law for this proposition; it was recognized as early as

Hopkirk v. Bell, 3 Cranch 454, with regard to statutes [252 U.S. 435] of

limitation, and even earlier, as to confiscation, in Ware 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. Chirac, 2 Wheat. 259, 275. 

Haguenstein v. Lynham, 100 U.S. 483.  Geofroy v. Riggs, 133 U.S. 258. 

Blythe v. Hinckley, 180 U.S. 333, 340.  So as to a limited jurisdiction

of foreign consuls within a State.  Wildenhus' Case, 120 U.S. 1.  See

Ross v. McIntyre, 140 U.S. 453.  Further illustration seems unnecessary,

and it only remains to consider the application of established rules to

the present case.



Here, a national interest of very nearly the first magnitude is

involved.  It can be protected only by national action in concert with

that of another power.  The subject matter is only 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 off and the protectors of our forests and our

crops are destroyed.  It is not sufficient to rely upon the States.  The

reliance is vain, and were it otherwise, the question is whether the

United States is forbidden to act.  We are of opinion that the treaty

and statute must be upheld.  Carey v. South Dakota, 250 U.S. 118.



Decree affirmed.



MR. JUSTICE VAN DEVANTER and MR. JUSTICE PITNEY dissent.

