U.S. Supreme Court State of Missouri v. Holland, 252
U.S. 416 (1920) 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. P. 252 U. S.
431 .

															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. P. 252 U. S.
432 . Page 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. P. 252 U. S.
432 .

															258 Fed. Rep. 479, affirmed.

															The case is stated in the opinion. Page 252 U. S. 430 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 Page 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 , 185 U. S. 142 . Georgia v. Tennessee Copper Co., 206 U.
S. 230 , 206 U. S. 237 . Marshall Dental Manufacturing Co. v. Iowa, 226 U.
S. 460 , 226 U. S. 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 Page 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. Page 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 , 188 U. S. 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 Page 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 , 120 U. S. 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 Page 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, 15 U. S. 275 . Haguenstein v. Lynham, 100 U. S. 483 . Geofroy v. Riggs, 133 U. S. 258 . Blythe v. Hinckley, 180 U. S. 333 , 180 U. S. 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.