consigned to a bona fide consignee, such consignee may give a written order to another person to receive the liquor.

§ 265. Common Carrier, Etc., Not to Collect Purchase Price of Interstate Shipment of Intoxicating Liquors. All railroads and express companies, common carriers, or other persons engaged in interstate commerce, cannot, in any way, aid in the transaction of the so-called C. O. D. liquor business, since the passage of Section 239 of the new Code, which is new legislation, in the following words:

"Sec. 239. Any railroad company, express company, or other common carrier, or any other person who, in connection with the transportation of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State, Territory, or District of the United States, or place non-contiguous to but subject to the jurisdiction thereof, into any other State, Territory, or District of the United States, or place non-contiguous to but subject to the jurisdiction thereof, or from any foreign country into any State, Territory, or District of the United States, or place non-contiguous to but subject to the jurisdiction thereof, shall collect the purchase price or any part thereof, before, on, or after delivery, from the consignee, or from any other person, or shall in any manner act as the agent of the buyer or seller of any such liquor, for the purpose of buying or selling or completing the sale thereof, saving only in the actual transportation and delivery of the same, shall be fined not more than five thousand dollars."

It will be noted that no part of the purchase price shall be collected by the carrier from the consignee before delivery, at the time of delivery, or after delivery; nor can such collection be made from any other person. It will also be noted that the carrier cannot, in any manner, act as the agent of the buyer or seller of any such liquor, for the purpose of buying or selling, or completing the sale. In other words, the carrier must engage only in the transportation and delivery of the same.

§ 265a. Decisions. This statute creates a new crime and prescribes a punishment for an act and series of acts that were not theretofore inhibited by any law. Complaints were made that shipments of liquor would be made from one State to another, in which the sale of liquor was pro

hibited, and that the bill of lading would be attached to a draft, and forwarded through banks for collection, the consignee to secure the bill of lading upon payment of the draft. The scope of the statute and the desire to remedy the evil occasioned a diversity of opinion among the Courts. The case of Danciger vs. Stone, decided by Judge Campbell in 188 Federal, 511, held that under the foregoing state of facts the bank situated in the dry territory was not liable to prosecution under this Statute, while Judge Amidon held in U. S. vs. First National Bank of Anamoose, 190 Federal, 336, that under a state of facts which is substantitally mentioned, the collecting bank would be liable to prosecution and would be guilty of a violation of the statute. Judge Amidon reviews in his opinion the anti-liquor agitation and the evil that the law was intended to remedy. After these two nisi prius decisions the Circuit Court of Appeals for the Eighth Circuit, speaking through Judge Sanborn in First National Bank of Anamoose vs. U. S., 206 Federal, 374, in reversing Judge Amidon's decision, held that a collection by a bank of a sight draft for the purchase price of liquor transported in interstate commerce and the delivery to the consignee of a bill of lading attached to the draft, the possession of which bill was necessary to enable the consignee to obtain a delivery of the liquor, does not subject the bank to find under Section 239, and thus the old criminal doctrine that a case must be a strong one indeed which would justify a Court in departing from the plain meaning of words in search of an intention which the words themselves do not suggest was again christened.

§ 266. Packages Containing Intoxicating Liquors Shipped in Interstate Commerce to be Marked as Such. Other new legislation upon the subject of interstate carriage of intoxicating liquors is Section 240, which reads as follows:

"Sec. 240. Whoever shall knowingly ship or cause to be shipped, from one State, Territory, or District of the United States, or place non-contiguous to but subject to the jurisdiction thereof, into any other State, Territory, or District of the United States, or place non-contiguous to but subject. to the jurisdiction thereof, or from any foreign country into any State, Territory, or District of the United States, or place non-contiguous to but subject to the jurisdiction

thereof, any package of or package containing any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, unless such package be so labeled on the outside cover as to plainly show the name of the consignee, the nature of its contents, and the quantity contained therein, shall be fined not more than five thousand dollars; and such liquor shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the seizure and forfeiture of property imported into the United States contrary to law."

While Sections 238 and 239 fix penalties for certain transgressions by the carrier, Section 240 creates a new offense for the shipper and does not relate, in any sense, to the carrier. Under other internal revenue decisions, the marking and branding of this Section will be construed to mean upon the outside of the package, so as to be plainly seen at all times. Such mark or label must show the name of the consignee, the nature of the contents of the package, and the quantity of the contents.

§ 267. Importation of Certain Wild Animals, Birds, and Reptiles Forbidden.-The Act of May 25, 1900, 31 Statute at Large, 188, Second Supplement, 1174, becomes Section 241 of the new Code, as follows:

"Sec. 241. The importation into the United States, or any Territory, or District thereof, of the mongoose, the socalled "flying foxes" or fruit bats, the English sparrow, the starling, and such other birds and animals, as the Secretary of Agriculture may from time to time declare to be injurious to the interests of agriculture or horticulture, is hereby prohibited; and all such birds or animals shall, upon arrival at any port of the United States, be destroyed or returned at the expense of the owner. No person shall import into the United States or into any Territory or District thereof, any foreign wild animal or bird, except under special permit from the Secretary of Agriculture: Provided, that nothing in this section shall restrict the importation of natural history specimens for museums or scientific collections, or of certain cage birds, such as domesticated canaries, parrots, or such other birds as the Secretary of Agriculture may designate. The Secretary of the Treasury is hereby authorized to make regulations for carrying into effect the provisions of this section."

§ 267a. Migratory Game Birds.-Deemed under protection of the United States-closed seasons, etc.-"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 90 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 non-migratory 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." This Act was passed on March 4, 1913, 37 Stats. L., 847.

Judge Trieber in United States vs. Schauver, 214 Federal, 154, held the Act to be unconstitutional. He holds that migratory birds are not, when on their usual migration, the property of the United States within sub-section 2 of Section

3 of Article 4 of the Federal Constitution which empowers Congress to adopt rules respecting the territory or other property of the United States, but they are the property of the States in their sovereign capacity, as the representatives and for the benefit of all their people in common, and the Act protecting these birds cannot be sustained as an exercise by Congress of the right to adopt regulations for its property.

§ 268. Transportation of Prohibited Animals. Taken from the same Act, will be found the substance of Section 242 of the new Code, which is in the following words:

"Sec. 242. It shall be unlawful for any person to deliver to any common carrier for transportation, or for any common carrier to transport from any State, Territory, or District of the United States to any other State, Territory, or District thereof, any foreign animals or birds, the importation of which is prohibited, or the dead bodies or parts thereof of any wild animals or birds, where such animals or birds have been killed or shipped in violation of the laws of the State, Territory, or District in which the same were killed, or from which they were shipped: Provided, That nothing herein shall prevent the transportation of any dead birds or animals killed during the season when the same may be lawfully captured, and the export of which is not prohibited by law in the State, Territory, or District in which the same are captured or killed: Provided further, That nothing herein shall prevent the importation, transportation, or sale of birds or birds' plumage manufactured from the feathers of barnyard fowls.'

The section, as it now exists, meets the objections, and remedies the defects, noted in United States vs. Thompson, 147 Federal, 637, wherein District Judge Amidon discovered and held that the references to Section 1 of the original Act was a clerical error, such section having no relation to the subject matter, because Section 3 was manifestly intended. Forms for indictment under the section as it now exists will be found after noticing the criticisms of the Courts thereon, at page 637 of the 147 Federal, U. S. vs. Thompson, and page 423 of the 115 Federal, United States vs. Smith. In the last case, the Court held that it was essential, to constitute the offense under the provisions of the section, that the prohibited game should either have been shipped, or delivered to the carrier for shipment, and an indictment which charged the defendant with intent to ship it by interstate com