Cummings v. People

• Decision Date: 24 October 1904
• Citation: 211 Ill. 392,71 N.E. 1031
• Parties: CUMMINGS v. PEOPLE.
• Court: Illinois Supreme Court

211 Ill. 392

71 N.E. 1031

CUMMINGS

v.PEOPLE.

Supreme Court of Illinois.

Oct. 24, 1904.

Error to Circuit Court, Greene County; O. P. Thompson, Judge.

Henry J. Cummings was convicted of violating the game law, and he brings error. Affirmed.Mark Meyerstein (George W. Lubke and J. D. Johnson, of counsel), for plaintiff in error.

H. J. Hamlin, Atty. Gen., E. W. Painter, State's Atty., and Geo. B. Gillespie, Asst. Atty. Gen., for the People.

On October 22, 1903, plaintiff in error, Henry J. Cummings, was fined $25 by a justice of the peace of Greene county for hunting game with a gun without having a license, as prescribed by section 25 of chapter 61 of Hurd's Revised Statutes of 1903. From this judgment he prayed an appeal to the circuit court, where the case was heard by the court without a jury, upon an agreed state of facts, which is substantially as follows: ‘That the defendant, on the 21st day of October, 1903, before that day, and ever since, has been and is a resident of the city of St. Louis, in the state of Missouri; that the defendant, on or about the 21st day of October, 1903, was hunting with a gun for game on the premises owned in fee simple, in said county of Greene, by the Grand Pass Shooting Club, a corporation organized and acting under the laws of the state of Illinois, and that said corporation has been so incorporated and acting as such corporation for several years past, and has been the owner in fee simple of about twelve hundred acres of land situated in the Illinois river bottom, in said Greene county, and that defendant, on the date above stated, did so hunt for game on said land, and at no other place whatsoever; that the defendant, Henry J. Cummings, on the day when he was so hunting on said premises, and for which this prosecution has been instituted, and for some time previous thereto, was a member of said corporation and a bona fide stockholder in said corporation; that said corporation, on the 12th day of September, 1903, adopted a resolution authorizing and inviting each member and stockholder of said corporation at any time thereafter during the ensuing year to visit said club and to hunt for game with a gun on the lands of said corporation above stated, and so situated in Greene county; that the said defendant, Henry J. Cummings, in company with one of the directors of said corporation, on the date above stated, was on said premises, in said Greene county, with said director, on the above date stated, and with said director, and by reason of the resolution referred to above, and by reason of being a member of said corporation and a stockholder thereof, on said premises, with a gun, for the purpose of hunting, and was then and there so hunting. It is admitted that the Grand Pass Shooting Club is a corporation organized under the laws of the state of Illinois, and has been such corporation since August 27, 1887; that said corporation for several years last past, and up to this date, has been continuously, and is now, the owner in fee simple of about twelve hundred acres of land situated in the Illinois river bottom, in said Greene county, which it has inclosed, and on which it has erected a club house and other improvements; that the said corporation, in September, 1903, as such corporation, adopted a resolution of record inviting all the members and stockholders of the said corporation to hunt at any time thereafter during the ensuing year, with a gun, for game, during the proper season, on the said premises of the said corporation in said Greene county; that the said defendant, Henry J. Cummings, did so hunt with a gun on the said premises on the date claimed by the people-that is to say, within eighteen months past-for game on said premises, and by reason of the resolution adopted by said corporation, as above stated; that the said Henry J. Cummings, at said time last named, had not procured from the proper authorities of the state of Illinois a license to hunt, pursue, or kill with a gun any of the wild animals, fowl, or birds that were then protected by the laws of the state of Illinois.’

Upon the submission of the case on the above state of facts, no other evidence being offered by either party, the defendant submitted to the court the five following propositions of law, which he asked to have held as the law applicable to the case: ‘(1) That the proviso to section 25 of the act for the protection of game, etc., in force July 1, 1903, is valid and binding. (2) That the proviso to section 32 of the same act is also valid and binding. (3) That the defendant, Henry J. Cummings, being a member and stockholder of the Grand Pass Shooting Club, had a right to hunt with a gun on the premises owned by the said Grand Pass Shooting Club, and violated no law in so doing at the time alleged in the complaint. (4) That the defendant, Henry J. Cummings, being a member and a stockholder of the Grand Pass Shooting Club, and being invited by the resolution of said corporation to hunt on the premises owned by the said corporation, in said Greene county, with a gun, for game, on the lands of said corporation in said Greene county, and having so hunted on said lands within proper season by such invitation, is not guilty of the charge alleged against him in this cause. (5) That under the evidence in this case the defendant, Henry J. Cummings, is not guilty of the charge alleged against him in the complaint in this cause.’ The court marked the first proposition ‘Held’ and the others ‘Refused,’ and found the defendant guilty as charged in the complaint. He entered his motions for a new trial and in arrest of judgment, but both motions were overruled, and thereupon the court rendered judgment against him for a fine and costs, to which he then and there excepted.

WILKIN, J. (after stating the facts).

Section 25 of chapter 61 provides as follows: ‘For the purpose of increasing the game protection, * * * no person or persons shall at any time hunt, pursue or kill with gun any of the wild animals, fowl or birds that are protected during any part of the year, without first having procured a license so to do, and then only during the respective periods of the year when it shall be lawful. Said license shall be procured in the following manner: * * * And said applicant, if a non-resident, shall pay to the county clerk the sum of $15, together with the sum of fifty cents as the fee of the county clerk, and, if a resident, shall pay to the clerk of any city, town or county the sum of one dollar as a license fee, together with the sum of ten cents as the fee of the city, town or county clerk for issuing such license: * * * provided, that the owner or owners of farm lands their children or tenants shall have the right to hunt and kill game on the farm lands of which he or they are the bona fide owners or tenants, * * * without procuring such resident license.’ As shown by the foregoing statement, the court below held said section valid at the request of the defendant, but it is now attempted to be maintained by his counsel that it is unconstitutional and void, first, because, it is in conflict with section 2 of article 4 of the federal Constitution, which declares that ‘the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states,’ this section of the statute providing for a different fee to be paid by non-residents from the fee charged to residents; second, because it is in conflict with section 1 of the fourteenth amendment to the federal Constitution, which provides that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws'; third, because it infringes upon the exclusive power of Congress, under section 8 of article 1 of the federal Constitution, to regulate commerce among the several states.

An examination of these several objections to the validity of the statute will lead to the conclusion that neither of them can be sustained, and we are clearly of the opinion that the trial court ruled properly in holding the statute valid. Upon this record, however, that question is not before us for decision. That a party to a suit cannot ask the trial court to hold a proposition of law applicable to his case, and then assign for error such holding is too clear for argument. The validity of section 25 was not questioned upon the trial by proper propositions of law, and it cannot, therefore, be questioned here. Mechanics' Savings Ass'n v. People, 184 Ill. 129, 56 N. E. 346;People v. McCoy, 132 Ill. 138, 23 N. E. 344;Chicago, Burlington & Quincy Railroad Co. v. City of Ottawa, 165 Ill. 207, 46 N. E. 213;Farwell & Co. v. Shove, 105 Ill. 61;Chiniquy v. People, 78 Ill. 570;New York Life Ins. Co. v. People, 195 Ill. 430, 63 N. E. 264;Board of Supervisors v. Commissioners of Highways, 164 Ill. 574, 45 N. E. 983. No attempt was made to...