Cummings v. People

Mr. Justice Wilkin

delivered the opinion of the court:

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 üde 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. v. People, 184 Ill. 129; People v. McCoy, 132 id. 138; Chicago, Burlington and Quincy Railroad Co. v. City of Ottawa, 165 id. 207;

Farwell & Co. v. Shove, 105 id. 61; Chiniquy v. People, 78 id. 570; New York Life Ins. Co. v. People, 195 id. 430; Board of Supervisors v. Commissioners of Highways, 164 id. 574.) No attempt was made to question its validity, even in the motion for a new trial, which was based on the three grounds: First, that the court erred in holding the proviso to section 32 valid; and second and third, the finding of the court was contrary to the evidence and the law. And the same may be said of the motion in arrest of judgment. The attempt, therefore, is to raise the question for the first time in this court,—and that, too, in the face of the holding of the trial court, on the defendant’s own request, that the statute is valid. It is fundamental that the question of the constitutionality of a statute cannot properly be raised for the first time in a court of review, but must have been called to the attention of the trial court and ruled upon by it, and the person challenging its validity must have preserved proper exceptions to such ruling. (Mechanics' Savings Ass. v. People, supra; People v. McCoy, supra; Chicago, Burlington and Quincy Railroad Co. v. City of Ottawa, supra.) It would be a travesty upon justice to hold otherwise, and permit a party, after procuring the court to hold a proposition in his favor, to assign error upon that ruling. And again, it is a rule of universal application that the reversal of a judgment cannot be urged upon a ground not submitted to the trial court, and upon which it did not and was not asked to decide.

The next ground of reversal is, that the decision of the court below was contrary to the law and the evidence, for the reason that the defendant, being an, owner of stock in the Grand Pass Shooting Club, was an owner of real estate belonging to that corporation, and by virtue of such ownership acquired an equitable title to the game on the land of the corporation, which he had a right to take independently of the provisions of the statute. The proviso to section 25, as shown above, is, “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 ñde owners or tenants, during the season when it is lawful to kill game, without procuring such resident license.” This provision having been held valid with the other parts of section 25, the defendant could only avail himself of the exception by bringing himself within its limitations, and this he failed to do for several reasons. First, being a stockholder in the corporation gave him no right, title or interest in the real estate owned by the corporation. “A share of stock may be defined as a right which its owner has in the management, profits and ultimate assets of the corporation.” (Cook on the Law of Stock and Stockholders, sec. 5.) “With reference more particularly to the essential nature of shares of stock, it has been well settled that such property is personalty, and not realty. It is said that a share of stock is not real estate; has nothing to give it the character of real estate; is not land, nor a hereditament, nor an interest in either of them.” (Ibid. sec. 6.) “It is now a well established principle that the shares of the capital stock of corporations are personal property. And this applies equally to all corporations, including those whose property consists of real estate, although attempts were formerly made to give to the stock of those companies the character of an interest in real estate. Sales of stock are therefore excluded from the provisions of the Statute of Frauds regulating conveyances of real estate or interests in real estate.” (Beach on Private Corporations, sec. 612.) “A stockholder has no legal title to the corporation property, or to any separate part thereof, until a division is made on the winding up or dissolution of the corporation, and prior to that time he has no right to take any of the corporate property for his own purpose.” (26 Am. & Eng. Ency. of Law,—2d ed.—p. 946.) The assets of a private corporation, whether consisting of real estate or personal property, belong to the corporate body, and the stockholders are not in any sense the owners thereof. We think this proposition so well established that the citation of authorities in support of it is unnecessary.

The language of the court in In re Eberle, 98 Fed. Rep. 197, is applicable to the present case. There the defendant was arrested for hunting in a preserve in Henderson county, this State, and brought habeas corpus proceedings in the United States District Court for the Northern District of Illinois. The land upon which he was charged with hunting was owned by a corporation in which he held stock, as the defendant did in the case at bar. There the defendant was a non-resident, and contended that, being an owner of land in Illinois, he could not be put on a different footing from residents, and that the attempt to discriminate against him deprived him of the equal protection of the law. The court, in the decision' of the case, said: “In his petition he states that he is a member of and stockholder in an Illinois corporation, which corporation is the owner of land on which he was hunting at the time it is alleged he violated the statute. Without, therefore, determining whether a non-resident land owner would be relieved from the provisions of the statute in question when shooting wild game upon his own premises, I deny the petition on the ground that the allegations thereof do not entitle the petitioner to the relief prayed. * * * The sovereign ownership of wild game is in the State, in trust for the benefit of its citizens, and a statute requiring the payment of a license by a non-resident for the privilege of hunting such game within the State is a police regulation within the power of the State, and not in violation of article 4, section 2, of the Federal constitution, or of section 1 of the fourteenth amendment, although said fee is not required of residents of the State.” We concur in the reasoning and conclusion thus announced.

In the next place, it does not appear that the lands upon which the defendant was charged with hunting without a license were farm lands, but, on the contrary, the agreed statement of facts tends to show that the twelve hundred acres owned by the shooting, club were a game reservation owned and used by it as such. It will be seen that the proviso above quoted permits the bona ñde owners of farm lands, or their tenants, during the season, etc., to hunt on the same “without procuring such resident license.” The title to wild game is in the State, without reference to the ownership of the lands upon which it may be found, and the State has the undoubted right, therefore, to protect and prohibit or regulate the taking or killing of the same. “And a game law is not invalid because it provides greater restrictions and severer penalties against non-residents than against residents.” (Allen v. Wyckoff, 48 N. J. L. 90.) The manifest intention of the legislature in adopting the proviso to section 25 was to permit the owners of farm lands residing in this State, and their children or tenants, to hunt upon those lands, within the other limitations of the statute, without obtaining a resident license so to do, and not to extend that privilege to residents of other States or countries.

-It is again insisted, that even though section 25 is valid and the plaintiff in error does not come within its proviso as an owner, still the court below erred in refusing to hold that section 32 was valid, and that under the proviso thereto the defendant should have been acquitted. That section provides for the repeal of laws previously passed for the protection of game, and the last clause is as follows: “Provided, that nothing in this act contained shall apply to persons hunting on the land of another person by invitation of such land owner.” The circuit court held this provision invalid, and the defendant preserved exceptions to such holding. The question for our decision on this branch of the case is whether such exception or proviso is so repugnant to the balance of the act as to be invalid.

It is a well settled principle of law that án act of the legislature shall be construed, if possible, so as to give effect to the intention of the law-makers, which intention must be ascertained from the language of the act itself, if it be possible to do so, and if it consists of several sections, they must be considered and construed together in order to arrive at such intention. By section 25 it was the manifest purpose of the legislature to require persons residing out of this State, owning land here, to obtain a non-resident license to hunt or take game on such land, and it certainly was not the intention to require an owner of farm land who was a nonresident of the State to pay a license fee of $15 for hunting upon his own land, and at the same time permit him to authorize others, by mere invitation, to do so without a license. But that proviso is not limited to section 25. It is general, and applies to every section in the.act which contains anything in conflict with it. If valid, so construed, a person would be authorized to hunt at any season of the year, in any manner, without limit as to the amount of game killed or taken, if, forsooth, the owner of the land on which he hunted had invited him to do so. To give it that construction would lead to a defenseless incongruity.

It is a well known rule applicable to the construction of statutes, that a saving clause must be rejected when it is directly repugnant to the purview or body of the act and cannot stand without rendering the act inconsistent and destructive of itself. (1 Kent’s Com. 522; 26 Am. & Eng. Ency. of Law,—2d ed.—681.) We are of opinion that the last clause of section 32, which expressly exempts persons who are hunting on the land of another by invitation of such land owner, from taking out a license, literally construed, is so repugnant to the balance of the statute as to render all of the statute ineffective, and as this was manifestly not the intention of the legislature the clause must be held invalid, except in so far as it can be given a limited effect. The purpose of the legislature doubtless was to authorize the owner of lands to invite another person to do that which he might himself lawfully do, and so construed the proviso can be sustained, but as applicable to the ’facts of this case the court was clearly right.in holding it invalid.

We find no reversible error in this record, and the judgment of the circuit court will be affirmed.

Judgment affirmed.