AGRICULTURE APPROPRIATION BILL, 1917.

PROTECTION OF MIGRATORY BIRDS.

MAY 22, 1916.

UNITED STATES SENATE,

COMMITTEE ON AGRICULTURE AND FORESTRY,

Washington, D. C. The committee met at 2.30 o'clock p. m. in committee room, Capitol, pursuant to adjournment, Senator Thomas P. Gore presiding.

Present: Senators Gore (chairman), Smith of Georgia, Shafroth, Thompson, Johnson of South Dakota, Wadsworth, and Warren; also Senator Reed.

The committee proceeded to the further consideration of the bill (H. R. 12717) making appropriations for the Department of Agriculture for the fiscal year ending June 30, 1917, and for other purposes, having under consideration the following item:

For all necessary expenses for enforcing the provisions of the act approved March fourth, nineteen hundred and thirteen (Thirty-seventh Statutes at Large, pages eight hundred and forty-seven and eight hundred and forty-eight), relating to the protection of migratory game and insectivorous birds, and for cooperation with local authorities in the protection of migratory birds, and for necessary investigations connected therewith, $50,000.

The CHAIRMAN. Senator Reed, do you desire to make any statement to the committee?

Senator REED. Let me present, before the witness comes, my objection to an appropriation with respect to migratory birds.

In the first place, when this bill was passed, the author of the bill admitted that its constitutionality was a matter of great doubtSenator SHAFROTH. That was Senator McLean, of Connecticut? Senator REED. Yes. It slipped through the Senate at a time when there was hardly anybody there, when I did not dream of its coming up. It was called up in some way out of order and went through. The Department of Justice knew that this bill was unconstitutional, and I am warranted in saying that because certain sportsmen in Kansas City and elsewhere, being advised that the law was unconstitutional, sought to get a test case made in order to determine the question of its constitutionality. I went before the Attorney General and presented to him affidavits to show that the law had been. violated. I presented letters from responsible men-one of them was the president of the First National Bank in Kansas City-saying that they were prepared, and upon an indictment or information brought in respect to it, that they would admit that they had killed. a bird in the manner and form charged in the indictment, thus rais

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ing the constitutionality of the act. I could not get the Department of Justice to move. They replied that they were not in favor of making a moot case, and I called their attention to the fact that it was not a moot proposition; that it involved this law. I then sent to the Agricultural Department the same admission. I have the correspondence here to show all of this. They declined to move. I then learned through the district attorneys that they had been instructed to file no informations and to permit no test of this law, and I then was importuned by Dr. Hornaday, who claims to represent a society, the Audibon Society, or some other society. He came to me to beg and implore that these men be induced to obey this law, regardless of its constitutionality, and not to raise the question. At that time, as at the present time, Dr. Hornaday and his crowd, were running the Department of Agriculture with respect to this bill. The Department of Agriculture, as I understand and I only state this as a matter of understandung-have done this remarkable thing: They have created an advisory council, consisting of Dr. Hornaday and some more of those gentlemen of like ilk, who propose to proceed to advise the Agricultural Department as to the rules and regulations which it shall make, and they are in fact the real executive arm of the Government in the enforcement of this act. That is the matter that I desired to go into.

But now I am coming to the question of this act. Finally somebody down in Arkansas got arrested and proceeded to test the law, and Judge Triber, United States district judge, in a very exhaustive and a very lawyer-like opinion, held that the law was absolutely unconstitutional; that there was not a leg for it to stand on; that the property of all game was in the States, and that the Government, therefore, could not assume the power to control the killing of it any more than they could control any other property of a citizen within a State, and that there was no power vested in Congress under the interstate commerce act, because it is absurd to say that a bird flying from one State to another was engaged in interstate commerce. Now that decision was not rendered, if my recollection serves me right, prior to the last appropriation bill. I desire to file with the committee Judge Pollock's opinion. Judge Pollock is the United States judge for Kansas. He has held squarely that this law is unconstitutional and his opinion is unanswerable. It is unanswerable in its logic.

Senator WARREN. Do they quote or allude to the race-horse case that the Supreme Court had up some 15 or 18 years ago?

Senator REED. Yes, sir; they allude to it, and allude to a great number of cases. I am not going to take up the time of the committee in reading them, but I would like to have this paper go into the committee's report or have the document handed back to me. If there is no objection, I will put it in the record.

(The paper referred to is here printed in full, as follows:)

In the District Court of the United States for the District of Kansas, first division. United States of America, plaintiff, . George L. McCullagh, defendant. No. 4197Criminal. Memoranda of decision on demurrer to information.

The information filed against defendant in this case reads as follows: "Comes now Fred Robertson, United States attorney for the district of Kansas, leave of court having first been obtained and by authority and direction of the Attorney General gives the court to understand and be informed, upon the oath of A. S. Rickner, a Federal game warden for the United States Department of Agriculture, that in the