MARK MEYERSTEIN, (GEORGE W. LUBKE, and J. D. JOHNSON, of counsel,) for plaintiff in error:

Section 25 of "An act for the protection of game, wild fowl and birds, and to repeal certain acts relating thereto," approved April 28, 1903, in force July 1, 1903, discriminates against non-residents of the State by fixing the license fee per annum to be paid by them at $15 while the fee to be paid by residents of the State is fixed by the section at one dollar. And there is a further discrimination against non-resident owners of lands in Illinois by the proviso to this section, which exempts the owners of farm lands, their children or tenants, from procuring resident's license to entitle them to hunt and kill game on the farm lands of which they are the bona fide owners or tenants, during the season when it is lawful to kill game. Because of these discriminations this section conflicts with section 2 of article 4 and section 1 of the fourteenth amendment of the Federal constitution.

License charges must be uniform as to citizens of the different States. Ward v. Maryland, 79 U. S. 418; Welton v. Missouri, 91 id. 275; Weber v. Virginia, 103 id. 344; Walling v. Michigan, 116 id. 446; Robbins v. Shelby County, 120 id. 489; Caldwell v. North Carolina, 187 id. 622.

All discriminations against the property and persons of non-residents are void. Cooley's Const. Lim. (7th ed.) 568574; Railroad Co. v. Husen, 95 U. S. 465; Bowman v. Railroad Co. 125 id. 465; Voigt v.Wright, 141 id. 62; Brimmer v. Rebman, 138 id. 78; Connolly v. Sewer Pipe Co. 184 id. 539.

Although the legal title to all wild animals is in the State while they are within its boundaries, every land owner, as between him and other land owners, has a qualified ratione soli in such of these animals as may be upon his land. And this qualified property will be protected to the particular land owner by actions in trespass, trover or other suitable remedy. And he has the right also to license other persons to make use of this qualified property right. Blades v. Higgs, 11 H. L.

631; Sutton v. Moody, 1 Raym. 250; Lord Lonsdale v. Rigg, 11 Exch. 654; Goff v. Kilts, 15 Wend. 550; Ferguson v. Miller, I Cow. 244; Idol v. Jones, 2 Dev. 162; Glenn v. Keyes, 1 Ill. App. 479; Ulery v. Jones, 81 Ill. 403.

The defendant, as a stockholder and member of the Grand Pass Shooting Club, had the right, upon the invitation of the club and in company with one of its directors, to hunt upon the lands owned by the club, October 21, 1903, in the open season for hunting, without his having first obtained a non-resident's license, as prescribed by section 25, supra, because the proviso to section 32 of the same act declares that "nothing in this act contained shall apply to persons hunting on the land of another person by invitation of such land owner," and which said proviso expressly exempted defendant from the license. Effect should be given this language because of the rule which requires effect to be given to all the words in a statute rather than that any should perish; and this being a criminal proceeding, the interpretation should be liberal to defendant. St. Louis v. Lane, 110 Mo. 254; Rutherford's Institutes, (2d Am. ed.) 421; Sutherland on Construction of Statutes, sec. 227.

Where there are two provisions, one of which is general and another particular, the particular provision must prevail and must be taken as an exception to the general provision. Dahnke v. People, 168 Ill. 102; People v. Kipley, 171 id. 44.

There is not an irreconcilable repugnancy between this proviso and the body of the act. To render a proviso to a statute invalid it must be so directly repugnant to the purview and body of the act that it cannot be harmonized or reconciled with it or its substantial parts. Here the principle object of the act-the protection and preservation of game— can be accomplished, notwithstanding the restriction of the proviso, by extending to persons hunting on the land of another by invitation, the same right to hunt and kill game, without procuring a license, "during the season when it is lawful to kill game," which section 25 of the act gives to the owners of farm lands, their children and tenants. Endlich on

Interpretation of Statutes, sec. 185, p. 256; Dugan v. Bridge Co. 27 Pa. St. 303; Mason v. Boom Co. 3 Wall. 252; Commercial Ass. v. MacKenzie, 85 Md. 132; In the matter of Swigert, 119 Ill. 83; Church of Holy Trinity v. United States, 143 U. S. 457.

The office of a proviso generally is, either to except something from the enacting clause, to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extending to cases not intended to be included. Huddleston v. Francis, 124 Ill. 195.

H. J. HAMLIN, Attorney General, E. W. PAINTER, State's Attorney, and George B. GILLESPIE, for the People:

Private persons have no absolute and unqualified right to hunt or kill game or to catch fish, but only a privilege granted by the sovereign power of the State, either expressly or impliedly; and it follows that nothing is taken from them when. denied the privilege, at stated seasons, of capturing or killing game or fish. In any view, the question of individual enjoyment is one of public policy, and not of private right. American Express Co. v. People, 133 Ill. 649; Magner v. People, 97 id. 320; People v. Bridges, 142 id. 31; Merritt v. People, 169 id. 219.

The ownership of wild animals, wild fowl and birds being in the people of the State in trust for all its citizens, and no one having a property right in them to be affected, it results that the legislature, as the representative of the people, may withhold or grant to individuals the right to hunt or kill game or qualify and restrict it to certain times of the year, as it may consider will best subserve the public welfare. Magner v. People, 97 Ill. 320; Geer v. Connecticut, 161 U. S. 519.

The title to game being and remaining in the State even after it is separated from the common stock by killing or taking the same into possession, the individual can have no property right therein of which he could be deprived, nor could he, if a citizen of a foreign State, be discriminated

against with respect to such property right and not allowed the equal protection of the law so far as such property is concerned. His right to take game is a mere privilege, granted under such restrictions as the State may elect to impose. People v. Bridges, 142 Ill. 30; Magner v. People, 97 id. 321; Merritt v. People, 169 id. 219.

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 sovereign ownership of animals feræ naturæ 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 is a police regulation within the power of the State, and not in violation of section 2 of article 4 of the Federal constitution or of section I of the fourteenth amendment, although such fee is not required of residents of the State; nor is the validity of such regulation as to a particular individual who is a non-resident of the State affected by the fact that he is a stockholder in a corporation in the State which owns lands maintained as a game preserve. In re Eberle, 98 Fed. Rep. 295.

A law which discriminates against the citizens of foreign States and to some extent interferes with commerce between States, if the regulation is one within the police power and deals directly with the common property of the State, does not conflict with the commerce clause of the Federal constitution. McCready v. Virginia, 94 U. S. 397.

A stockholder in a corporation is not the owner of the property of the corporation, but merely the owner of stock in the corporation, in the proportion that the stock held by him bears to the total corporate stock. The property of the corporation belongs to the legal entity, the corporate body, -and is in no sense the property of the stockholders. The stockholders of the corporation are not partners, even as between themselves, nor are they co-tenants of real estate owned by the corporation. Baker v. Backus, 32 Ill. 83; Russell v. McLellin, 14 Pick. 63; Dyckman v. Valiente, 43 Barb. 131; Pratt v. Bacon, 10 Pick. 123.

The ownership of stock in a game preserve in Illinois does not constitute the owner a landholder in the State of Illinois. Even if the plaintiff in error, by virtue of being a land owner, would be exempt from prosecution under the provision of section 25, he is not in a position to claim that exemption by being merely the holder of stock in a corporation which owns land in Illinois; and the statute does not discriminate against him as a non-resident land owner, for the reason that the ownership of stock in the Grand Pass Shooting Club does not constitute him a land owner. In re Eberle, 98 Fed. Rep. 295.

A proviso which is repugnant to the body of an act or its general purview is itself void and can be given no effect. Endlich on Interpretation of Statutes, sec. 185; Mason v. Boom Co. 3 Wall. 252; Donegan v. Bridge Co. 27 Pa. St. 303; Ex parte Mayor's Court, 4 Clark, 315; Penick v. High Shoals Manf. Co. 113 Ga. 592.

The proviso to section 32 of the Game law of 1903, providing "that nothing in this act contained shall apply to persons hunting on the land of another person by invitation of such land owner," is void.

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no

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, 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