People v. Diekmann

• Decision Date: 21 October 1918
• Docket Number: No. 12028.,12028.
• Citation: 285 Ill. 97,120 N.E. 490
• Parties: PEOPLE v. DIEKMANN.
• Court: Illinois Supreme Court

285 Ill. 97

120 N.E. 490

PEOPLE

v.DIEKMANN.

No. 12028.

Supreme Court of Illinois.

Oct. 21, 1918.

Appeal from Tazewell County Court; J. M. Rahn, Judge.

Remmer Diekmann was convicted of violating the act for the conservation of game, etc., and he appeals to the Supreme Court upon constitutional questions. Affirmed.

Scholes & Pratt, of Peoria (A. M. Otman, of Peoria, of counsel), for appellant.

Edward J. Brundage, Atty. Gen., E. E. Black, State's Atty., of Pekin, and Edward C. Fitch, of Chicago, for the People.

STONE, J.

The state's attorney of Tazewell county filed an information in the county court of said county under section 47 of an act entitled ‘An act for the conservation of game, wild fowl, birds and fish in the state of Illinois, for the appointment of a commission and staff for the enforcement thereof, and to repeal certain acts relating thereto,’ approved June 23, 1913, in force July 1, 1913 (Laws 1913, p. 363), against Remmer Diekmann, appellant, charging that Diekmann had in his possession an unlawful device, to wit, a seine, and that he was unlawfully using said seine for catching fish in a duly established fish preserve in the waters of Illinois, as authorized by section 25 of said act as amended in 1915 (Laws of 1915, p. 455; Hurd's Rev. St. 1917, c. 56), and praying the confiscation and sale of said seine. The defendant made a motion to quash the information on the ground that section 25 of said act is in violation of section 22 of article 4 of the Constitution of the state of Illinois, in that said act vests in the game and fish commission of the state of Illinois power to set aside certain waters as a state fish preserve, and for the further reason that it vests said commission with arbitrary discretion, which may be exercised in the interest of a favored few, affording opportunity for unjust discrimination, and also that said commission, by its proceedings as such political body, did not properly organize and declare the waters in question to be a fish preserve. The court overruled the motion to quash, to which exception was preserved. The defendant filed his plea of not guilty, whereupon the cause was tried by the court without a jury. The defendant introduced no evidence on the hearing. At the close of the evidence introduced on behalf of the people, the defendant moved the court to dismiss the cause of action, which motion was overruled by the court and exception preserved. Motions for new trial and in arrest of judgment were also overruled and exception preserved. The judgment of the court ordered that the seine be sold in the manner provided by law. As a question of the constitutionality of said section 25 of said act is involved, the cause, on appeal, comes direct to this court.

No proposition of law was submitted by either party to the trial court on the hearing other than the foregoing motion to dismiss.

Section 25 of the Fish and Game Law is as follows:

‘The commission shall have power and authority to set aside, at its discretion, such waters within the jurisdiction of this state as they may judge best as state fish preserves, in which it shall be unlawful to fish with any device except hooks and lines. The commission shall post such waters at the outlet, and at highway crossings of the same, by conspicuous notice, and shall publish such notice once in a newspaper published in each of the counties in which such waters are located. If there be no newspaper published in such county, then the publication shall be made in like manner and for a like period in a county nearest to such waters, wherein a newspaper is being published. Any person taking, catching or killing, or attempting to take, catch or kill, any fish with any device or by any method, except hooks and line in any waters, set apart under the provisions of this section, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be sentenced, for the first offense, to pay a fine of the less than fifty ($50) dollars, nor more than one hundred ($100) dollars, and for the second offense shall be fined not less than one hundred ($100) dollars nor more than two hundred ($200) dollars; and in either case shall stand committed to the county jail, there to remain until such fine and costs are fully paid: Provided, that the commission shall have the power to issue permits as they see fit, to take from such waters with seine or other device, such rough fish as they may designate: Provided, further, that it shall be unlawful to catch or take at any time with any device any fish within one hundred (100) feet from any dam across any stream. It shall be the duty of the commission to select suitable locations for state fish hatching and breeding establishments, take all measures within their means for the propagation and increaseof the native food fishes and also for the introduction of new varieties of food fishes into the waters of the state and upon the best terms possible to employ a practical and competent fish culturist who shall perform all such duties as the commission shall direct.’

Appellant contends that said section, in giving power to the state game and fish commission to set apart certain waters as state fish preserves, is unconstitutional, in that it conflicts with that part of section 22 of article 4 of the Constitution prohibiting the enactment of local or special laws ‘for the protection of game or fish,’ for the reason that said law is a local law. A ‘local’ statute is a statute that relates only to a portion of the territory of the state, while ‘special’ laws are those which grant some special right, privilege or immunity or impose some particular burden upon some portion of the people of the state...