People v. Wilcox

• Decision Date: 15 December 1908
• Citation: 237 Ill. 421,86 N.E. 672
• Parties: PEOPLE v. WILCOX.
• Court: Illinois Supreme Court

237 Ill. 421

86 N.E. 672

PEOPLE

v.WILCOX.

Supreme Court of Illinois.

Dec. 15, 1908.

Appeal from Circuit Court, Schuyler County; Harry Higbee, Judge.

Amos Wilcox was charged with violating Act June 5, 1907 (Laws 1907, p. 335), relating to fishes, and the Board of Fish Commissioners appeal from a judgment of the circuit court quashing the complaint and discharging accused on his appeal from a conviction in justice court. Affirmed.

Chiperfield & Chiperfield, for appellant.

L. A. Jarman, for appellee.

VICKERS, J.

Amos Wilcox was charged before a justice of the peace of Schuyler county with the violation of section 21 of the act of June 5, 1907 (Laws 1907, p. 343), entitled ‘An act to encourage the propagation and cultivation and to secure the protection of fishes in all the waters under the jurisdiction of the state of Illinois, defining the duties of the fish commissioners, fixing their compensation and providing penalties for the violation of the provisions thereof.’ Appellee was convicted before the justice of the peace before whom the prosecution was commenced, and he took an appeal to the circuit court of Schuyler county. In the circuit court appellee made a motion to quash the complaint on the ground that said section 21 is invalid, null, and void, in that it violates section 22 of article 4 of the Constitution, which provides that the General Assembly shall not pass local or special laws for the protection of game or fish. This motion was by the circuit court sustained, the complaint quashed, and appellee discharged. Exceptions were duly preserved to this action of the court by the people, and the fish commissioners of the state, by virtue of section 13 of said act, have prosecuted an appeal to this court.

The only question raised on this appeal is the constitutionality of section 21 of the act above referred to. Section 21 provides that any person desiring to fish in any of the waters, as provided for in section 1 of said act, within the jurisdiction of this state, with hoop net or with seine or trammel net, shall first obtain a license from a city or county clerk, who are authorized by said act to issue such license. The license fee is fixed at 50 cents for each hoop net and $5 per 100 yards of seine or trammel net. The act provides that the fish commissioners shall prescribe a uniform style and pattern of metal tags which shall be attached to hoop nets and each 100 yards of seine or less, or trammel nets, in such manner as to be at all times exposed to public view, and that any person using any hoop net, seine, or trammel net which has no tag attached, as provided by said act, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not less than $25 nor more than $100, and such untagged net or seine shall be forfeited to the state. A proviso added to said section excludes Lake Michigan from its operation, and it is this proviso that is supposed to render said section unconstitutional under that clause of section 22 of article 4 of the Constitution of 1870 which prohibits the passage of local or special laws for the protection of game or fish. All of the objections urged may be considered together.

When reduced to their final analysis, the several contentions made against the validity of this statute amount simply to this: That the Legislature has no constitutional power to pass a law for the protection of fish, impose penalties for its violation, and restrict the operation of such law to a particular portion of the waters of the state. Section 22 of article 4 of the Constitution of 1870 provides that the General Assembly shall not pass local or special laws on certain specified subjects enumerated in said section, and it is provided, further, that no local or special law shall be passed on any other subject where a general law can be made applicable. Concerning the subject as to which local or special laws are interdicted the Constitution is mandatory, and any act falling within the description of local or special legislation must be held unconstitutional, whatever may be the character of the law in other respects. A special act of the Legislature upon a subject other than those specified in this section may be constitutional, since the determinationof the Legislature that a general law cannot be made applicable to such subject is not open to review. City of Mt. Vernon v. Evens Brick Co., 204 Ill. 32, 68 N. E. 208.

The words ‘local’ and ‘special’ are frequently used interchangeably, although it is clear that they do not have the same meaning. The word ‘local’ signifies belonging to or confined to a particular place. When applied to legislation, it signifies such legislation as relates to only a portion of the territory of a state. Bouvier's Law Dict.; Burrill's Law Dict.; People v. O'Brien, 38 N. Y. 193;People v. Newburgh, etc., Railroad Co., 86 N. Y. 1;Ellis v. Frazier, 38 Or. 462, 63 Pac. 642,53 L. R. A. 454. The word ‘local’ is used as a counter term to ‘general.’ The word ‘special’ appears to be more appropriately applied to laws that grant some special right, privilege, or immunity or impose some particular burden upon some portion of the people of the state less than all. State v. Corson, 67 N. J. Law, 178, 50 Atl. 780. Special as well as local laws are forbidden under our Constitution respecting the several enumerated subjects in section 22. Upon other subjects special laws may be constitutional where they apply to all members of a designated class, where the classification rests upon some disability, attribute, or classification marking them as proper objects for the operation of special legislation. Gillespie v. People, 188 Ill. 176, 58 N. E. 1007,52 L. R. A. 283, 80 Am. St. Rep. 176;Ruhstrat v. People, 185 Ill. 133, 57 N. E. 41,49 L. R. A. 181, 76 Am. St. Rep. 30;Starne v. People, 222 Ill. 189, 78 N. E. 61,113 Am. St. Rep. 389;Off & Co. v. Morehead, 235 Ill. 40, 85 N. E. 264. Since our Constitution prohibits both local and special legislation in the specified cases, an act that falls under either classification must be held void. The words ‘local’ and ‘special’ as used by the framers of our Constitution, were designed to remedy different evils. Judge John Scholfield, who afterwards as a member of this court did much towards settling the construction of our Constitution, introduced the resolution which finally became section 22 of article 4. In discussing this section before the constitutional convention Judge Scholfield said: ‘It was said by the gentleman from Grundy (Mr. Peirce), however, that our present Constitution provides for the passage of general laws and prohibits special legislation. It does so, but in such a manner as that the prohibition is practically ineffectual. It leaves the judgment of the Legislature to be final and conclusive on the question of whether the object sought can be accomplished by a general law or whether it must be accomplished by a special law, and therefore, whenever a Legislature assumed to pass a special law, it follows that the Legislature had exercised its judgment upon a question, and that is conclusive. It was not, however, the people that demanded the special laws. The thousands of private charters that have been passed by former Legislatures of the state were not demanded by the people as a body politic at all. They were satisfied with general laws upon the subject. It was in most instances individuals who demanded these special laws-individuals who were not satisfied to do business upon a broad and honest basis upon which all might be equal, but who wanted special favoritism, chances to plunder the public treasury or their fellow men, covered up by a private charter to avoid detection or punishment. Those were the men who demanded these special laws, and at their bidding and by their behests they were passed. It was they who filled our lobby with the instruments and appliances of corruption. It was the applicants for these special favors that made legislation profitable, and enabled legislators, on a salary of $2 per day, to at the end of a session display their wealth like successful gamblers.’ 1 Debates of the Const. Convention, p. 512.

Hon. Jonathan Merriam, a member of the constitutional convention from the Twenty-Seventh district, in discussing the clause of the Constitution now under consideration, on page 576 of the same work, said: ‘Mr. Chairman, the report of the legislative committee simply trims off a few of the branches of this Upas tree of special legislation. I, sir, [237 Ill. 426]am in favor of laying the ax at the root of the tree. We want no half-way measures about this matter. If there be any one thing that the people are agreed upon, it is that the...