{
  "id": 2636845,
  "name": "Nelson Card et al. v. Hubert A. McCaleb et al.; Same v. Same",
  "name_abbreviation": "Card v. McCaleb",
  "decision_date": "1873-09",
  "docket_number": "",
  "first_page": "314",
  "last_page": "317",
  "citations": [
    {
      "type": "official",
      "cite": "69 Ill. 314"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "13 Ill. 728",
      "category": "reporters:state",
      "reporter": "Ill.",
      "opinion_index": 0
    },
    {
      "cite": "38 Ill. 274",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        428220
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/38/0274-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 339,
    "char_count": 6099,
    "ocr_confidence": 0.55,
    "pagerank": {
      "raw": 1.1294490217544538e-07,
      "percentile": 0.5754503447884414
    },
    "sha256": "a704d3d8fe5319c77aa160b50f81a7315302717b39051d20d347f40c619a15cd",
    "simhash": "1:b544e130f5420498",
    "word_count": 1087
  },
  "last_updated": "2023-07-14T19:22:57.309600+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Nelson Card et al. v. Hubert A. McCaleb et al. Same v. Same."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Scott\ndelivered the opinion of the Court:\nThe same questions being presented in each of these causes, they have been consolidated, by consent of parties, and will be heard as one cause. The confusion appearing in the record has been removed by stipulation, so that really the only point for decision is, whether the lease of the date of October 17, 1871, conferred upon appellants the exclusive right to cut and remove all ice that should form on that portion of the Illinois and Michigan Canal described in the declaration, with the privilege to control the feeder and side cuts of the canal located in Ottawa: The lease was made in consideration of an annual rental to be paid by appellants, and by its terms was to run for a period of seven years.\nIt is claimed the commissioners derived the power to make the lease under the second section of the act of 1871, which authorizes them \u201cto take charge of and exercise full control over the Illinois and Michigan Canal.\u201d Among the duties specified in that section, there is no specific authority given to lease or sell the ice that might form in any portion of the canal.\nThe object the legislature had in the passage of that act was, \u201cto settle up and close the trust of the board of trustees.\u201d This is the purpose expressed in the title, and it was not contemplated it would apply to the general management of the affairs of the canal.\nThe act of April 7, 1872, defines more minutely the duties of the commissioners, yet it confers no express authority to sell or lease the ice. Whilst all other duties required of them to be performed are specifically set forth, there is no allusion to the subject of renting the privilege of taking ice from the canal, nor do we find in it any grant of power that necessarily includes it.\nThere is certainly nothing in either act alluded to incompatible with the law of 1869. It provides : \u201cAll parties resident upon the line of the Illinois and Michigan Canal shall be allowed to cut and remove ice from the said canal, its feeders, side cuts and basins, free of charge.\u201d This law is not inconsistent with the acts of 1871 and 1872, and is not, therefore, expressly or by implication, repealed by anything contained in either of these enactments. Each may stand and be construed to be in force for the purposes intended. No intention was manifested by the General Assembly to repeal the law of 1869. And in The City of Chicago v. Quimby, 38 Ill. 274, it was declared, a repeal by implication only takes place where the provisions of two enactments are repugnant; but wherever a reasonable construction can be given, by which both acts may stand, it will be done. Tyson v. Postlethwaite, 13 Ill. 728.\nIt is objected, it does not appear in the declaration the defendants are \u201cresident upon the line\u201d of the canal, and that the court will not take judicial notice of the fact. The objection is hypercritical. Any one living so near the canal as to desire to avail of the privilege given by the statute, will be deemed to \u201clive upon the line,\u201d within the meaning of the law.\nThe State had previously granted the privilege to all who desired to avail of it, to cut and remove ice from the canal, its feeders, side cuts and basins. That privilege had never been retracted, and the commissioners possessed no power to sell the exclusive right to appellants to remove the ice from a-ny distinct portion of the canal, to the exclusion of other parties resident upon its line. This is a subject over which the State has plenary power, and, until it withdraws the privilege granted, all persons have an equal right to cut and remove any ice that may there be formed.\nThe rulings of the court on the demurrers filed were correct, and its judgments are affirmed.\nJudgments affirmed.",
        "type": "majority",
        "author": "Mr. Justice Scott"
      }
    ],
    "attorneys": [
      "Messrs. Eldridge & Lewis, for the appellants.",
      "Messrs. Bushnell & Bull, for the appellees."
    ],
    "corrections": "",
    "head_matter": "Nelson Card et al. v. Hubert A. McCaleb et al. Same v. Same.\n1. Illinois and Michigan Canal\u2014power of commissioners to sell or lease right to take ice from. Neither the act of 1871 nor that of April 7, 1872, relating to the Illinois and Michigan Canal, gives any specific authority, or contains any grant of power, from which any authority in the commissioners can be inferred to sell or lease the right to take the ice that may form in any portion of the canal.\n2. Same\u2014persons upon its line have a free right to take ice formed on it. There is nothing in either of the acts of 1871 or 1872 relating to this canal which is inconsistent with, or which, by implication, repeals the privilege given in the act of 1869 to all persons resident upon the line of the canal to cut and remove ice from the same, its feeders, side cuts and basins, free of charge.\n3. Same\u2014meaning of the words \u201cresident upon the line of the\u201d canal. Under the act of 1869, providing that \u201call parties resident upon the line of the Illinois and Michigan Canal shall be allowed to cut and remove ice from the said canal,\u201d etc., any person living so near the canal as to desire to avail of the privilege given, will be deemed to live upon the line, within the meaning of the law.\n4. Statute\u2014repeal by implication. A repeal by implication only takes place where the provisions of two enactments are repugnant; but whenever a reasonable construction can be given by which both acts may stand, it will be done.\nAppeal from the Circuit Court of LaSalle county ; the Hon. Edwin S. Leland, Judge, presiding.\nThese two cases were actions of trespass, brought bv Nelson Card and Owen W. Huff, partners, etc., against Hubert A. McCaleb and Henry Holmes. The plaintiffs claimed the exclusive right to cut and remove the ice from a certain part of the Illinois and Michigan Canal, under a lease giving such right from the Board of Canal Commissioners of the State of Illinois, and these actions were brought by them against the defendants for entering and removing ice from that portion so leased to the plaintiffs. The court below sustained a demurrer to the plaintiffs\u2019 declaration, and rendered judgment in favor of the defendants, from which the plaintiffs prosecuted appeals.\nMessrs. Eldridge & Lewis, for the appellants.\nMessrs. Bushnell & Bull, for the appellees."
  },
  "file_name": "0314-01",
  "first_page_order": 314,
  "last_page_order": 317
}