Appeals from the District Court of the United States for the Southern District of Illinois, Southern Division; Charles G. Briggle and J. Earl Major, Judges.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
These appeals are from judgments wherein fines were imposed upon the court's finding the appellants guilty of violating the Migratory Bird Treaty Act (16 U.S.C.A. § 703 et seq.). The informations charged that appellants did hunt unlawfully "with and by aid of corn and rye, * * wild ducks, migratory game birds included within the terms of the convention between the United States and Great Britain * * (and) contrary to the statute * *." Appellants pleaded not guilty and waived jury trials and demurred to the informations.
The demurrers challenged the constitutionality of the Migratory Bird Treaty Act because violative of the Tenth Amendment and not authorized by the treaty. The informations charge a violation of the Regulations. The Regulations are attacked because not supported, as required by statute, by findings of fact by the Secretary of Agriculture, and also because such regulations go beyond their intended scope as laid down by the statute. They therefore violate Article 1 of Section 1 of the Constitution which vests legislative powers in Congress alone and thereby forbids delegation of such powers. The statute is also challenged as invading states' powers in the matter of regulating hunting migratory birds.
The case is of importance, not only to hunters, but to the public at large. For if the appellants are successful in their attack, protection of game birds is impossible, and all migratory animals will either disappear or become increasingly rarer.
While appellants assail only certain phases of the regulations which deal with the hunting of ducks and geese, they will, if successful, strike down all Federal restrictions upon duck and geese (and other migratory bird) hunting.
The facts are few. Two game officers observed two employees of the Crane Lake Gun Club dump corn, on successive days in Horn Lake, about 150 yards from a duck blind (with fifteen to eighteen wooden decoys) occupied by appellant Cochrane and his son, and across the lake from the blind occupied by appellant Fellows. Appellants were attired for hunting and possessed shotguns and duck hunting licenses. About three per cent. of the corn floated on the surface of the water (which varied from an inch to several feet in depth). The current of the lake carried about fifteen of these kernels near appellant Cochrane's blind. While the corn was being unloaded the officers heard a gun shot and saw the ducks "flare up". There was no evidence as to whether any ducks were killed, but there was evidence that the range of such a shotgun is one hundred yards, and the grain was dumped one hundred and fifty yards from appellant Cochrane's blind and much farther from appellant Fellows' blind.
At the time, the hunting season was open.
The questions involved are materially, if not controllably, affected by a treaty negotiated between Great Britain, the Dominion of Canada, and the United States Government (39 Stat. 1702) the essential articles of which are set forth in the margin.*fn1 Subsequent to the adoption of this treaty, Congress enacted the Migratory Bird Treaty Act (16 U.S.C.A. § 703 et seq.), pursuant to which the Secretary of Agriculture promulgated regulations which define migratory game birds, insectivorous birds, and migratory nongame birds. See 16 U.S.C.A. § 704.
Regulation No. 2 defines such terms as take, hunt, kill, and capture.
Regulation No. 3, for violation of which these prosecutions were begun, reads as follows:
"Regulation 3. -- Means by Which Migratory Game Birds May Be Taken.
"The migratory game birds for which open seasons are specified in regulation 4 hereof may be taken during such respective open seasons with a shotgun only, not larger than no. 10 gage, fired from the shoulder, except as specifically permitted by regulations 7, 8, 9, and 10 hereof, but they shall not be taken with or by means of any automatic loading or hand-operated repeating shotgun capable of holding more than three shells, the magazine of which has not been cut off or plugged with a one-piece metal or wooden filler incapable of removal through the loading end thereof, so as to reduce the capacity of said gun to not more than three shells at one loading; they may be taken during the open season from the land or water, with the aid of a dog, and from a blind, boat, or floating craft except sinkbox (battery), powerboat, sailboat, any boat ...