The opinion
On Motion for Rehearing.
TRIEBER, District Judge.
The motion for a rehearing is based upon three grounds:
1. It is claimed that, the act having been enacted by Congress and approved by the executive, the court should respect their action, unless it is so plain that they transcended their powers that the duty to declare the act void cannot be avoided.
2. It is claimed that the United States is the owner of all migratory birds when they leave one state and go into another, and as such Congress has the power, under the provisions of subsection 2, section 3, article 4, of the Constitution, to make all needful regulations respecting them.
3. It is claimed that the act is authorized by the commerce clause of the Constitution.
. As to the first proposition, the court fully agrees with the learned counsel for the government, and so held in its former opinion.
As to the second proposition, no authorities have been cited to the court which have not been considered by it in its former opinion, and although in full sympathy with all measures" tending to preserve the wild game for the benefit of all the people, the court can find no valid reason for changing the conclusions reached at the former hearing.
[7] The last contention was not insisted on at the former hearing, but, on the contrary, it was conceded that the act cannot be sustained under the commerce clause of the Constitution. But it is now argued that:
“A migratory bird, from one state into another, passes from the ownership of the former into that of the latter state. If this be true, a thing recognized by the courts as an article of commerce, when passing between individuals, passes from the ownership of individuals in their collective capacity' to other *161 individuals in their collective capacity, the ownership of the state being merely ownership in trust for their respective citizens.”
This same contention was made? in Geer v. Connecticut, 161 U. S. 519, 530 , 16 Sup. Ct. 600, 605 ( 40 L. Ed. 793 ), and was.decided adversely. The court there said:
“But the errors which this argument involves are manifest. It presupposes that, where the hilling of game and its sale within the state is allowed, it thereby becomes commerce in the legal meaning of that word. In view of the authority of the state to affix conditions to the killing and sale of game, predicated as is this power on the peculiar nature of such property and its common ownership by all the citizens of the state, it may well be doubted whether commerce is created by an authority given by a state to reduce game within its borders to possession, provided such game be not taken, wnen killed, without the jurisdiction of the state. The common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose. * * * Passing, however, as we do, the decision of this question, and granting that the dealing in game killed within the state, under the provision in question, created internal state commerce, it does not follow that such internal commerce became necessarily the subject-matter of interstate commerce, and therefore under the control of the Constitution of the Uhited States.”
After quoting from Gibbons v. Ogden, 9 Wheat. 1 , 6 L. Ed. 23 , and The Daniel Ball, 10 Wall. 557 , 19 L. Ed. 999 , it proceeds :•
“The fact that internal commerce may be distinct from interstate commerce destroys the whole theory upon which the argument of the plaintiff in error proceeds.”
The principle there established has never been questioned nor modified by any later decisions of that court. On the contrary, it has been consistently adhered to. The latest case on that subject is Silz v. Hesterburg, 211 U. S. 31, 41 , 29 Sup. Ct. 10, 53 L. Ed. 75 , where Geer v. Connecticut, supra, is reaffirmed.
• For this court to disregard these decisions of the highest tribunal of the land would be an assumption of authority not only unwarranted, but improper. The Supreme Court is the only tribunal which possesses that power, and it exercises it very sparingly. Fortunately, this question can be reviewed by that court on error, and it is hoped that the government will take proper steps to have it done.
The motion for a rehearing is denied.