Opinion on Rehearing
Per Curiam:On July 22, 1960, claimants filed their petition for a rehearing, and, as grounds for such, suggest the following:
1. The Court has entirely overlooked the theory of nuisance under which claimants were alternatively proceeding.
2. The Court, while disregarding Judge Schuman’s prior opinion, has not, in any way, distinguished it, or demonstrated that such opinion was incorrect or wrong.
3. While it may be correct that the Federal government does not own migratory water fowl, the Game Code of Illinois has always categorically stated that the State of Illinois has title to and owns such birds. Therefore, such State property must be so managed and controlled as not to injure others.
4. Presidential proclamation No. 2748 and the Governor’s proclamation are of significance only as to the issue of claimants’ contributory negligence. Since such proclamations rendered claimants defenseless against geese depredations, claimants could not be charged with contributory negligence.
5. To now say that the Presidential proclamation No. 2748 was in effect, while the Governor’s proclamation was an idle gesture, is to overlook entirely the fact that the actions of the United States and the State of Illinois were coordinated to the day and almost the hour and were joint, and that the validity and efficacy of both proclamations were upheld in Lansden, Et Al vs. Hart, 168 F. (2d) 409.
6. The Court seems to think that an exercise of a valid police power absolves the State from all liability. However, negligent exercise of such power is the very basis and one of the chief reasons for the creation and existence of the Illinois Court of Claims.
7. The Court apparently feels that a governmental function is involved. Under the present Court of Claims Act and since 1945 this is immaterial.
8. The Court has entirely disregarded the trend in Illinois toward the complete abolition of governmental immunity for wrongs committed against its citizens.
As to the first point, the Court does not agree with claimants that the evidence in this case supports the theory of nuisance. To the contrary, the maintenance of Horseshoe Lake Carne Preserve was of economic importance to claimants for a number of years.
As to the second point mentioned above, the Court did not disregard the opinion of Judge Schuman, but considered it with all other evidence introduced in said case. It is to be noted that respondent filed a motion to dismiss the complaint. The only question before the Court at that time was the legal sufficiency of the complaint. The Court in its opinion used the language “for the purpose of passing on this motion, etc.,” the motion is denied. In denying the motion to strike the complaint, the Court did nothing more than rule that the complaint stated a cause of action. Thereafter answers were filed by respondent, replies were filed by claimants, the cases were tried, a whole day was devoted to oral arguments, and elaborate briefs were filed by both parties.
As to the third point mentioned in the petition, the word “owner” has been construed by the Supreme Court of Illinois in the case of Bridges vs. The People, 142 Ill. 30, to mean that the sovereign authority holds wild life in trust for all the people, rather than physical ownership as such.
As to the fourth point, there is no finding of contributory negligence in this case by the Court so as to bar a recovery by claimants.
As to the fifth point regarding the legal effect of the Presidential proclamation and the Governor’s proclamation being issued on the same day, it suffices to say that the ruling in Missouri vs. Holland, 252 U.S. 416, establishes the paramount authority of the United States to regulate under the Migratory Bird Treaty Act of 1918. Any proclamation of the Governor, issued before or after the date of the Presidential proclamation No. 2748, could not affect the finality of the President’s act.
As to the remaining objections, claimants contend that the failure of the State to protect the claimants from the depredations of the geese was an act of negligence, and this Court should recognize the trend toward abolition of governmental immunity. As was pointed out in the opinion, the Court recognized that claimants suffered losses. However, this Court may no longer make an award on the basis of equity and good conscience, but must hear and determine all claims on the basis of the law as determined by our Courts.
It seems to be well settled law that a State, acting in its sovereign capacity and as a trustee of wild life, may legislate to the detriment of an individual in the protection of wild life, and such detriment is not compensable (Barrett vs. State, 220 N.Y. 423).
The petition for rehearing is, therefore, denied.