heretofore existed. The Secretary of Agriculture shall from time to time collect and publish useful information as to the propagation, uses, and preservation of such birds. And the Secretary of Agriculture shall make and publish all needful rules and regulations for carrying out the purposes of this Act, and shall expend for said purposes such sums as Congress may appropriate therefor. [31 Stat. L. 187.] This and the following section 5 are from the Act known as the "Lacey Law." The other sections of this Act, sections 2, 3, and 4 were incorporated in the Penal Laws of 1909, ch. 9, §§ 241-244, and repealed by section 341 thereof. See PENAL Laws. SEC. 5. [Animals, etc., subject to laws of State into which transported.] That all dead bodies, or parts thereof, of any foreign game animals, or game or song birds, the importation of which is prohibited, or the dead. bodies, or parts thereof, of any wild game animals, or game or song birds transported into any State or Territory, or remaining therein for use, consumption, sale, or storage therein, shall upon arrival in such State or Territory be subject to the 'operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such animals or birds had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise. Stat. L. 188.] See the note to the preceding section 5 of this Act. [31 A further provision of this section that "this Act shall not prevent the importation, transportation, or sale of birds or bird plumage manufactured from the feathers of barnyard fowl," was incorporated in the Penal Laws of 1909, ch. 9, § 242. See PENAL LAWS. Dead bodies or parts thereof. The expression "that all dead bodies or parts thereof, of any foreign game animals, or game or song birds, the importation of which is prohibited," etc., refers to the animals and birds the importation of which, if living, is prohibited by the second section of this Act, and does not prohibit the importation of "all dead bcdies of any foreign game animals," etc. (1900) 23 Op. Atty.-Gen. 213. Imported game subject to police power of state. This section places the game imported into any state under the police power of that state, and makes it lawful for the state to legislate with reference thereto. Jonesboro, etc., R. Co. v. Adams, (1915) 117 Ark. 54, 174 S. W. 527. Validity of state laws as to interstate shipments. This section confers on any state the right to enact laws prohibiting the possession of dead game within certain periods, whether taken within or without the state. People v. Hesterberg, (1906) 184 N. Y. 126, 76 N. E. 1032, 6 Ann. Cas. 353, 3 L. R. A. (N. S.) 163. In State v. Heger, (1905) 194 Mo. 707, 93 S. W. 252, it was held that the Missouri statute (Laws of 1905, p. 162, § 18) prohibiting the sale of game, whether taken within or without the state, is not invalid as a regulation of interstate commerce, in view of this section providing that dead bodies of foreign game animals transported into any state shall, on arrival in the state, be subject to the operation of the laws of the state, enacted in the exercise of its police power. An Act To regulate the introduction of eggs of game birds for propagation. [Act of June 3, 1902, ch. 983, 32 Stat. L. 285.] [Eggs of game birds — importation for propagation.] That from and after the passage of this Act the Secretary of Agriculture shall have the power to authorize the importation of eggs of game birds for purposes of propagation, and he shall prescribe all necessary rules and regulations governing the importation of eggs of said birds for such purposes. [32 Stat. L. 285.] [SEC. 1.] [Protection of migratory birds.] All wild geese, wild swans, brant, wild ducks, snipe, plover, woodcock, rail, wild pigeons, and all other migratory game and insectivorous birds which in their northern and southern migrations pass through or do not remain permanently the entire year within the borders of any State or Territory, shall hereafter be deemed to be within the custody and protection of the Government of the United States, and shall not be destroyed or taken contrary to regulations hereinafter provided therefor. The Department of Agriculture is hereby authorized and directed to adopt suitable regulations to give effect to the previous paragraph by prescribing and fixing closed seasons, having due regard to the zones of temperature, breeding habits, and times and line of migratory flight, thereby enabling the department to select and designate suitable districts for different portions of the country, and it shall be unlawful to shoot or by any device kill or seize and capture migratory birds within the protection of this law during said closed seasons, and any person who shall violate any of the provisions or regulations of this law for the protection of migratory birds shall be guilty of a misdemeanor and shall be fined not more than $100 or imprisoned not more than ninety days, or both, in the discretion of the court. The Department of Agriculture, after the preparation of said regulations, shall cause the same to be made public, and shall allow a period of three months in which said regulations may be examined and considered before final adoption, permitting, when deemed proper, public hearings thereon, and after final adoption shall cause the same to be engrossed and submitted to the President of the United States for approval: Provided, however, That nothing herein contained shall be deemed to affect or interfere with the local laws of the States and Territories for the protection of nonmigratory game or other birds resident and breeding within their borders, nor to prevent the States and Territories from enacting laws and regulations to promote and render efficient the regulations of the Department of Agriculture provided under this statute. [37 Stat. L. 847.] This is from the Agricultural Appropriation Act of March 4, 1913, ch. 145. Constitutionality. This Act has been declared unconstitutional by state and federal courts. Thus in U. S. v. McCullagh, (D. C. Kan. 1915) 221 Fed. 288, wherein the court, adverting to the fact that it is indisputably established that the title and exclusive power over wild game coming within the borders of a state resides in the state and not in the nation, said: "The act challenged is believed to be the single instance in the entire legislative or judicial history of this nation, or the composing states, in which a contrary view has been expressed. Unless a departure, as radical in theory as it is important in its effects, is to be made from fundamental principles long established by our laws, and long acquiesced in by our people, the act in question must be held incapable of support by any provision of the organic law of our country. If the act in question shall, on any ground, or for any reason, be upheld and enforced, it must surely follow that many laws of the separate states of this Union must hereafter be held inoperative, for there can be no divided authority of the nation and the several states over the single subject matter in issue, with either safety to the nation or security to the citizen. And this for the reason, although a power of control be delegated by the Constitution to the national government, still such power may be exercised by the states until Congress acts. But so soon as Congress, in pursuance of its delegated power, occupies the field, all state laws become automatically suspended and inoperative. Not only is this true, but the argument of necessity, so strongly urged on the part of the government at the hearing, to preserve the migratory bird life of the country from extinction, would seem to the thoughtful mind more fanciful than real, and for this reason: The several states, as has been seen, possess the most absolute and plenary power of control over the subject-matter of wild animal and wild bird life within their territorial domains it is possible to either conceive or to grant. In the exercise of this unlimited power the states acting together may beyond all question prohibit absolutely and unconditionally the taking of any such wild life in any part of this country, either temporarily or for all time. Hence, it turns out, the argument of necessity for action on the part of the government arises, not so much from any want of power to control on the part of the several states as from dissatisfaction as to the manner in which such plenary power possessed by the several states is exercised. It is quite obvious differences of opinion and difficulties of the nature involved are inherent in the very form and structure of this government, subject to change or correction, however, only in the manner prescribed by its founders." See to the same effect State v. McCullagh, (1915) 96 Kan. 786, 153 Pac. 557. 66 In State v. Sawyer, (1915) 113 Me. 458, 94 Atl. 886, L. R. A. 1915F 1031, which also held that this Act was unconstitutional, the court said: In State v. Snowman, [1900] 94 Me. 99, 111, 46 Atl. 815, 818, 80 A. S. R. 380, 50 L. R. A. 544, our court said: The fish in the waters of the state and the game in its forests belong to the people of the state in their Sovereign capacity, who, through their representatives, the legislature, have sole control thereof and may permit or prohibit their taking.' This doctrine is recognized by all the American courts and has had the uniform approval of the Supreme Court of the United States whenever the question has been considered by it. In Geer v. Connecticut, (1896) 161 U. S. 519, 16 S. Ct. 600, 40 U. S. (L. ed.) 793, the leading case perhaps on the subject, Mr. Justice White (now the Chief Justice) learnedly analyzed the principles upon which this doctrine rests and exhaustively reviewed the precedents in which it is securely established. And it would be needless, indeed, to cite here the many authorities supporting this unquestioned principle that the states, prior to the formation of the national legislature, had the 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? If so, it must be found in either what is called the commerce clause or the general welfare clause of the Federal Constitution. The commerce clause authorizes Congress 'to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.' Const. art. 1, § 8. Certainly the passage of wild birds in their flight from one state to another is not commerce between the states. However difficult it may be to define with precision the term 'commerce,' as used in that clause of the national Constitution, it is undoubtedly limited to the acts of man, and does not include the natural and uncontrolled movements of wild game. Nor can we perceive any reasonable ground for a contention that the commerce clause confers on Congress power to regulate the taking of wild game within the states. Indeed, it would seem that all possible contention on this score has been already held untenable by the Supreme Court of the United States in several cases where the question has been exhaustively considered. In the case of Geer v. Connecticut, supra, the validity of a statute of that state, which prohibited the transportation of game out of the state, was involved. The case was carried to 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 out of the state was in violation of the commerce clause of the national Constitution. But the court decided otherwise, holding that the wild animal and bird life within a state belongs to the state in trust for the people of the state, and that the state has the authority to legislate for its protection and preservation for the common good, and that such power of legislation embraces game that has been reduced to the possession of an individual by lawfully killing it in the state; or, in other words, that, in view of the peculiar nature of such property and its ownership by the state for the benefit of all its citizens, the state may prohibit its transportation out of the state, although lawfully killed within the state, because such a prohibition may tend to restrict its lawful killing within the state, and the better preserve it for its own people. And it was there held that while game, taken lawfully, might be considered a subject of commerce within the state where taken, it did not become the subject of interstate commerce, within the commerce clause of the federal Constitution. See, also, New York v. Hesterberg, (1908) 211 U. S. 34, 29 S. Ct. 10, 53 U. S. (L. ed.) 75, where it is held that a statute of New York prohibiting the possession of certain game during closed time did not violate the commerce clause of the federal Constitution. In Judson on Interstate Commerce, § 11, the author says: Thus the wild game within a state, at common law, belongs to the sovereign, and in this country to the people, in their collective capacity, and the state therefore has a right to say that it shall not become the subject of commerce. Our conclusion, therefore, is that the power to legislate 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 we find such power in the general welfare clause. We have already herein before pointed out, as the universally accepted doctrine, that the ownership of wild game, so far as it is capable of ownership, is in the states for the benefit of all their people in common. It follows, therefore, that Congress acquired no power under the general welfare clause to make regulations concerning wild game, because wild game is not property belonging' to the United States. And we need here only repeat what has been before said in substance, that the basic principle on which all the decisions of both the state and federal courts upholding the state game laws rest is that the state is the owner of the wild game within its borders, and that principle has been consistently adhered to. The ques tion of the constitutionality of the act of March 4, 1913, and the regulations thereunder, has been directly considered in two recent cases in the federal courts, viz., U. S. v. Shauver, (E. D. Ark. 1914) 214 Fed. 154, decided by the District Court for the Eastern District of Arkansas, and U. S. . McCullagh, (D. C. Kan. 1915) 221 Fed. 288, decided by the District Court for the District of Kansas. In each of those cases, in an exhaustive opinion, the court reaches the same conclusion here reached, that Congress has not the power to regulate the taking of migratory game birds within the states, and that therefore the act of March 4, 1913, is unconstitutional. In each of those cases the respondent was prosecuted in the federal court for a specific violation of the federal regulations." See also U. S. v. Shauver, (E. D. Ark. 1914) 214 Fed. 154, wherein the court said: "Are migratory birds, when in a state on their usual migration, the prop erty of the United States or of the states where they are found? If they are the property of the nation, the states would have no power to regulate, control, or prohibit the hunting or killing of them. But the rule of law which all the American courts have recognized is that animals feræ naturæ, denominated as game, are owned by the states, not as proprietors, but in their sovereign capacity as the representatives and for the benefit of all their people in common. This principle has not only been maintained by all the highest courts of the states in which the question has arisen, but has had the approval of the Supreme Court of the United States in every case which has come before it. It may be, as contended on behalf of the government, that only by national legislation can migratory wild game and fish be preserved to the people, but that is not a matter for the courts. It is the people who alone can amend the Constitution to grant Congress the power to enact such legislation as they deem necessary. All the courts are authorized to do when the constitutionality of a legislative act is questioned is to determine whether Congress, under the Constitution as it is, possesses the power to enact the legislation in controversy; their power does not extend to the matter of expediency. If Congress 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 Congress, either ex-, pressly or by necessary implication, to protect or regulate the shooting of migratory wild game when in a state, and is therefore forced to the conclusion that the act is unconstitutional." GARNISHMENT R. S. 935. Garnishees in Suits by United States, on Notes etc., 417. CROSS-REFERENCE See ATTACHMENT. Sec. 935. [Garnishees in suits by the United States, on notes, etc.] In any suit by the United States against a corporation for the recovery of money upon a bill, note, or other security, the debtors of the corporation may be summoned as garnishees; and it shall be the duty of any person so summoned to appear in open court and to depose, in writing, to the amount which he was indebted to the said corporation at the time of the service of the summons and at the time of making such deposition; and judgment may be entered in favor of the United States for the sum admitted by such garnishee to be due to the said corporation, in the same manner as if it had been due to the United States: Provided, That no judgment shall be entered against any garnishee until after judgment has been rendered against the corporation defendant to the said action, nor until the sum in which the garnishee stands indebted is actually due. [R. S.] Act of April 20, 1818, ch. 83, 3 Stat. L. 443. Sec. 936. [Issue tendered when garnishee denies indebtedness.] When any person summoned as garnishee deposes in open court that he is not, and was not at the time of the service of the summons, indebted to such corporation, an issue may be tendered by the United States upon such demand, and if, upon the trial of that issue, a verdict is rendered against the garnishee, judgment shall be entered in favor of the United States, pursuant to such verdict, with costs of suit. [R. S.] Act of April 20, 1818, ch. 83, 3 Stat. L. 443. Sec. 937. [Garnishee failing to appear.] If any person summoned as garnishee, as aforesaid, fails to appear at the term of the court to which he is summoned, he shall be subject to attachment for contempt of the court. [R. S.] Act of April 20, 1818, ch. 83, 3 Stat. L. 444. GEARY ACT See CHINESE EXCLUSION GENERAL ALLOTMENT ACT See INDIANS |