no doubt could exist that it was the intention to make this act retrospective. In our judgment the Legislature by the act of 1905 intended that it should be a mere continuance of the main features of the former act, with some modifications as to details, which would not require foreign corporations already doing business in the state to requalify or pay again the license fee already paid before they could do business in the state. Appellant, by its license issued under the act of 1897, was authorized to bring this suit. tion of it at the same time, the re-enactment | rations then doing business. If such a proneutralizes the repeal so far as the provi- vision had been included in the act of 1905, sions of the old law are contained in the new one. As to the portion unchanged in form or substance, the amendatory act is a mere continuation of the original act. People v. Zito, 237 Ill. 434, 86 N. E. 1041; 1 Lewis' Sutherland on Stat. Const. (2d Ed.) § 238; Haspel v. O'Brien, 218 Pa. 146, 67 Atl. 123, 11 Am. & Eng. Ann. Cas. 470, and notes; Baker v. Shinkle, 249 Ill. 154, 94 N. E. 58. Officers are not lost (State v. Baldwin, 45 Conn. 134), statutory rights are not defeated (Capron v. Strout, 11 Nev. 304), statutory powers are not taken away (Middleton v. N. J. W. L. R. R. Co., 26 N. J. Eq. 269), or criminal charges affected (State v. Gumber, 37 Wis. 298) by such repeal and re-enactment of the law on which they, respectively, depend. It has been held by the Supreme Court of Massachusetts that the repeal of a general incorporation law by a statute substantially re-enacting its provisions does not terminate the existence of the corporations organized under it. United Hebrew Benevolent Ass'n v. Benshimol, 130 Mass. 325. [2] The general rule to be applied in the construction of statutes is that they should be given a prospective rather than a retrospective or retroactive operation, unless there is language found in the statute which is so clear that it will admit of no other than the retroactive construction. People v. Lower, 236 Ill. 608, 86 N. E. 577, and cases cited; 2 Lewis' Sutherland on Stat. Const. (2d Ed.) § 642. [3] There is nothing in the act of 1905 that states specifically that this act shall apply to foreign corporations already licensed under the previous act. On the contrary, comparing this act on this point with the provisions of the acts of 1899 and 1897, it seems quite clear that the Legislature did not so intend. The earlier acts provided, in terms, that every foreign corporation, "before it shall be authorized or permitted to transact business in this state, or to continue to do business therein, if already established, shall," etc. There is no provision in the law of 1905 as to corporations "continuing to do business" in this state. The Legislature, by leaving this provision out of the new act, manifestly intended to treat the foreign corporations already doing business in a manner different than the former acts treated foreign corpo Without attempting to discuss the added requirements of the law of 1905, we deem it proper to state that they plainly apply to the corporations doing business in the state previous to the enactment of the later law, for the law of 1899 provided, as we have seen, that the foreign corporations, when licensed, should be subjected to all liabilities, restrictions, and duties which might be imposed upon corporations of like character organized under the general laws of this state and should have no other or greater powers. Then, too, sections 9 and 26 of the general incorporation act (Hurd's Stat. 1909, pp. 560, 562) specifically provide that the charters of all corporations shall be subject to such changed regulations as may be deemed advisable by the Legislature. The conclusions reached render it unnecessary to consider whether, if the Legislature had attempted to require the license fees to be again paid and new licenses taken out before foreign corporations doing business under the former laws could continue in business, such an act would interfere with the contract rights of the appellant under the reasoning of American Smelting & Refining Co. v. Lindsley, 204 U. S. 103, 27 Sup. Ct. 198, 51 L. Ed. 393, or whether such a provision in the law would be simply additional regulations of such corporations which could be enforced by the state authorities under the holding in Hammond Packing Co. v. State, 212 U. S. 322, 29 Sup. Ct. 370, 53 L. Ed. 530. The judgments of the Appellate Court and of the circuit court of Pulaski county will be reversed and the cause remanded to said circuit court for further proceedings in harmony with the views herein expressed. Reversed and remanded. (252 III. 421.) CITY OF MARION v. SISNEY et al. (Supreme Court of Illinois. Dec. 21, 1911.) 1. MUNICIPAL CORPORATIONS (§ 296*)-LOCAL IMPROVEMENTS-ESTIMATE OF COST. The itemized estimate of the cost of a local improvement, required by Local Improvement Act, § 7 (Hurd's Rev. St. 1909, c. 24, § 513), requiring the board of local improvements to cause an estimate of the cost of the improvement to be made by the public engineer, which shall be itemized to the satisfaction of the board, and which shall be made a part of the record of the resolution for the improvement, is a necessary part of the record of the resolution for a local improvement. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 792-795; Dec. Dig. § 296.*] 2. MUNICIPAL CORPORATIONS (§§ 304, 493*)— LOCAL IMPROVEMENTS - - PRIMA FACIE EVI DENCE-BURDEN OF PROOF. An objector, charging that the preliminary requirements of the local improvement act (Hurd's Rev. St. 1909, c. 24) for a local improvement have not been complied with, must overcome the prima facie proof created by section 9, providing that the recommendation of the board of local improvements shall be prima facie evidence of compliance with the preliminary requirements; but where there is a substantial variance between the estimate of the cost of the improvement and the ordinance, it defeats a confirmation of an assessment for the improvement. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 811-816; Dec. Dig. §§ 304, 493.*] 3. MUNICIPAL CORPORATIONS (§ 296*)-LOCAL IMPROVEMENTS ESTIMATES. The estimate of the cost of a local improvement, required by Local Improvement Act, 10 (Hurd's Rev. St. 1909, c. 24, § 516), providing that an estimate of the cost of the improvement as originally contemplated, or as modified at a public hearing, shall be filed, together with the ordinance for the improvement and recommendation, must be substantially the same as that required by section 7, requiring the board of local improvements to cause the public engineer to make an itemized estimate of the cost, unless at the public hearing a change is made in the estimate, in which case the estimate as finally adopted at the hearing must substantially conform to the estimate attached to the petition for the confirmation of an assessment for the improvement. assessment for paving certain streets. The city appeals. The objections sustained stated that the estimates of the engineer as to certain sidewalks, the description of material for sewer pipes, combined curbs and gutters, and false curbs and gutters, and for several other items, did not comply with the statute. The estimated cost of the entire improvement was over $52,000, of which the portion objected to composed a large part. Counsel for the city concede that, if the estimate which must accompany the ordinance when presented by the board of local improvements to the city council must be itemized substantially the same as the estimate requir ed by section 7 of the local improvement act (Hurd's Rev. St. 1909, c. 24, § 513), then the objections here in question were rightly sustained. They insist, however, that the esti mate required under section 10 of that act need not set out the quality or kinds of material in such detail as required in the first estimate under section 7; that the reasons for setting out all these details in the first estimate, as stated by repeated decisions of this court, do not exist with reference to the oth er estimate; that, if the ordinance contains sufficient details, there is no necessity of having those details repeated in the estimate. [1] This argument furnishes its own answer; for, carried to its logical conclusion, there would then be no necessity for any estimate to be part of the petition, if the ordinance set out all the details required in that estimate. The wording of the statute as to the two estimates is practically the same. Section 7 provides that the estimate to be prepared for the board of local improvements and made a part of the resolution "shall be itemized to the satisfaction of said board." Section 10 states that "an estimate of the cost of such improvement, as originally contemplated, or as changed, altered or modified at the public hearing, itemized so far as the board of local improvements shall think necessary," shall be filed, together with the ordinance and recommendation. The first estimate has been held by this court to be a necessary [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 296.*] Appeal from Williamson County Court; W. part of the record of the resolution. Jones F. Slater, Judge. Proceeding by the City of Marion for the confirmation of an assessment for paving streets. From a judgment sustaining objections interposed by G. W. Sisney and others, and dismissing the petition, the city appeals. Affirmed. W. W. Skaggs, City Atty. (Hosea V. Ferrell and R. P. Hill, of counsel), for appellant. Sawyer & Kimmel, for appellees. CARTER, C. J. The county court of Williamson county sustained certain legal objections and dismissed the petition of the city of Marion, asking for the confirmation of an v. City of Chicago, 213 Ill. 92, 72 N. E. 798. and cases cited. [2] Section 9 provides that the recommend ation of the board "shall be prima facie evidence that all the preliminary requirements of the law have been complied with, and if a variance be shown on the proceedings in the court, it shall not affect the validity of the proceeding, unless the court shall deem the same willful or substantial." Objectors, claiming that the preliminary requirements of the statute have not been complied with, must overcome the prima facie proof made by this recommendation of the board of local improvements. Yaggy v. City of Chicago, 192 Ill. 104, 61 N. E. 494: Madderom v. City of Chicago, 194 Ill. 572, 62 N. E. 846. If, however, there was a substantial variance shown between the estimate and the ordinance, it would defeat the confirmation of the assessment. City of Chicago v. Soukup, 245 Ill. 634, 92 N. E. 564. This court held, under the local improvement act as originally passed, that the estimate which accompanies the ordinance should conform to and be the same as the estimate made by the board of local improvements for the public hearing. City of Chicago v. Wilder, 184 Ill. 397, 56 N. E. 395; Berry v. City of Chicago, 192 Ill. 154, 61 N. E. 498. The decisions just cited also hold that, while the estimate in the two sections must agree, it does not follow that they must bear the same date. [3] It is plain, however, from the reading of these decisions, that it was intended to hold that one should be a substantial copy of the other. The law has since been amended, so that the estimate as first made for the board of local improvements may be modified at the public hearing. Judged by the record before us, it appears that this case was heard in the trial court on the theory that the estimate attached to the petition was the same as the estimate made for the board of local improvements. Be that as it may, manifestly the Legislature intended that the estimate required by section 10 should be substantially the same as that required by section 7, unless at the public hearing a change was made in the estimate, and then the estimate as finally adopted at the public hearing should substantially conform to the estimate attached to the petition filed in court. Appeal from Piatt County Court; Elim J. Hawbaker, Judge. Action by the People, on the relation of Ona L. Cline, County Collector, for judgment for taxes against the Wabash Railroad Company. From a judgment overruling objections to the taxes, and entering judgment against the property, defendant appeals. Affirmed. C. F. Mansfield and F. M. Shonkwiler (N. S. Brown, of counsel), for appellant. Hicks & Doss, for appellee. DUNN, J. An additional road and bridge tax of 25 cents on each $100 valuation was extended against the property of the appellant in Sangamon township, in Piatt county, upon the certificate of the highway commissioners and consent of the board of town auditors that such additional rate was required "for the specific and sole purpose of building a bridge and approaches in Madden Lane road across Madden run, in said town; emergency having arisen for the construction of said bridge by reason of a former bridge across said Madden run having been destroyed and swept away by a freshet." This appeal is from the judgment of the county court overruling the appellant's objection to the tax so extended and entering judgment against its property. Section 14 of chapter 121 of Hurd's Statutes of 1909 provides for the levy of an additional road and bridge tax in view of some contingency, upon the certificate thereof by the highway commissioners, with the consent of a majority of a board consisting of the The conclusion that we have reached makes board of town auditors and the assessor. unnecessary any discussion of the various The certificate of the commissioners must points raised with reference to the estimate. | state that the tax is desired to meet a conThe judgment of the county court must be affirmed. Judgment affirmed. (252 1. 316.) PEOPLE ex rel. CLINE, County Collector, v. WABASH R. CO. (Supreme Court of Illinois. Dec. 21, 1911.) HIGHWAYS (8 127*)-TAXES - ADDITIONAL TAXES CERTIFICATE OF HIGHWAY COMMISSIONERS REQUISITES "CONTINGENCY." The certificate of highway commissioners, within Hurd's Rev. St. 1909, c. 121, § 14, providing for an additional road and bridge tax, in view of a "contingency," on the certificate thereof by the highway commissioners, with the consent of a majority of the board of town auditors and the assessor, must state what the contingency is, which must be in the nature of a casualty and a certificate for an additional tax to build a bridge swept away by a freshet shows such a contingency. [Ed. Note.-For other cases, see Highways, Dec. Dig. § 127.* For other definitions, see Words and Phrases, vol. 2, pp. 1497, 1498.] tingency, and must state what the contingency is, and the contingency must be some unusual or extraordinary event in the nature of a casualty, which does not happen regularly and in the ordinary course. People v. Lake Erie & Western Railroad Co., 248 Ill. 32, 93 N. E. 288. The contingency here fulfilled this requirement. Heavy rains and freshets or floods may be expected at certain seasons of the year. They are usual occurrences, and so are the resulting consequences of damage to roads, washing out of grades and culverts, and undermining of foundations and embankments. People v. Toledo, St. Louis & Western Railroad Co., 249 Ill. 175, 94 N. E. 16. Such results of storms or floods as may usually be anticipated as likely to occur from year to year are not extraordinary, and the repairs required in consequence of their happening must be provided for out of the ordinary tax. But a freshet, which results in the carrying away and destruction of a bridge, is out of the ordinary course. It does not ordinarily happen, and cannot be anticipated. People v. Illinois Central Rail road Co., 249 Ill. 142, 94 N. E. 100. The certificate stated such a contingency as authorized the levy of the additional tax. Judgment affirmed. (252 Ill. 376.) PEOPLE ex rel. CLINE, County Collector, v. Application by the People, on the relation of Ona L. Cline, County Collector, for judgment for taxes against the property of the Illinois Central Railroad Company. From a judgment for the taxes, defendant appeals. Affirmed. C. F. Mansfield and F. M. Shonkwiler (John G. Drennan, of counsel), for appellant. Hicks & Doss, for appellee. PER CURIAM. This appeal is from the judgment of the county court of Piatt county overruling the objection of appellant to the excess of the road and bridge tax above 36 cents on each $100 of the assessed valuation of its property in the town of Sangamon, and in entering judgment as applied for by the county collector. The record in this case is identical with that in People v. Wabash Railroad Co., 96 N. E. 861, and the questions in volved are the same. For the reasons there stated, the judgment in this case is affirmed. Judgment affirmed. (252 Ill. 447.) LIVINGSTON v. MOORE. (Supreme Court of Illinois. Dec. 21, 1911.) 1. EJECTMENT (§ 9*)-TITLE TO SUPPORT PURCHASE AT EXECUTION SALE. Where the purchaser at an execution sale brings ejectment against the defendant in execution and shows a valid judgment and execution and a sheriff's deed to himself, he has established title in himself to whatever title the defendant had in the premises. [Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 16-29; Dec. Dig. § 9.*] 2. EXECUTION (§ 275*) - SALE-EFFECT NONPAYMENT OF EXEMPTION. OF Hurd's Rev. St. 1909, c. 52, § 11, provides that, where the premises are valued at more than $1,000 and cannot be divided, a copy of the appraisal shall be delivered to the execution debtor with notice that, unless the officer is paid the surplus above $1,000 on the amount of the execution within 60 days, the premises will be sold, and section 12 provides that, on failure to pay, the officer may advertise and sell the premises, and out of the proceeds pay to the execution debtor the sum of $1,000 and apply the balance on the execution. Held, that it was the officer's duty to pay the $1,000 to the execution debtor, and that his neglect after receiving the amount from the execution creditor could not defeat the sale and deprive the purchaser of the right to a deed to the premises which would entitle him to possession. [Ed. Note. For other cases, see Execution, Cent. Dig. 88 791-796; Dec. Dig. § 275.*] Error to Circuit Court, Cook County; Samuel C. Stough, Judge. defendant, after the overruling of a motion to set aside the judgment and to grant a new trial, brings writ of error. Affirmed. This was an action of ejectment commenced by the defendant in error in the circuit court of Cook county against the plaintiff in error to recover in fee certain premises situated in the city of Chicago. The general issue was pleaded, and upon the cause being called for trial the defendant failed to appear in person or by attorney, and, the issues having been submitted to a jury, a verdict was returned in favor of the plaintiff, upon which verdict the court rendered judgment. Thereupon the defendant moved the court to set aside the judgment and to grant a new trial, which motion was overruled, and the defendant has sued out this writ of error to review the action of the trial court in denying said motion. The plaintiff, to show title in himself, offered in evidence a judgment of the circuit court of Cook county in his favor, against the defendant, for the sum of $1,864.40, and an execution issued thereon by the clerk of the said court to the sheriff of Cook county. The return showed that said execution had been levied upon the premises described in the declaration; that the sheriff had duly advertised said premises for sale under said execution; that the plaintiff had purchased said premises at such sheriff's sale for the sum of $1,978.51; and that a sheriff's deed was executed to the plaintiff after the period of redemption had expired. It also appeared from the return of the sheriff that the premises were the homestead of the defendant; that the sheriff caused the same to be appraised by commissioners, who reported the same were worth more than $1,000, and that they were not susceptible of division, and that they were of the value of $7,500; that the sheriff thereafter delivered a copy of said appraisement to the defendant, with a notice thereto attached that, unless the defendant should pay to him the surplus over and above $1,000 on the amount due on said execution within 60 days thereafter, said premises would be sold by him to satisfy said execution. The appraisement was had, and a copy thereof, with the notice aforesaid, was served on the defendant 60 days prior to the sale of the said premises to satisfy said execution. It further appears that after the payment of the costs 'and expenses of sale the sheriff reported that he paid the amount remaining in his hands to the attorney of the plaintiff in full satisfaction of said execution, and that the plaintiff, by his attorney, paid to the sheriff the sum of $1,000 in cash with which to pay and satisfy the homestead right of said defendant in said premises. Ejectment by Louis Livingston against L. H. Craig, for plaintiff in error. RichHonorah Moore. Judgment for plaintiff, and ard H. Peterson, for defendant in error. HAND, J. (after stating the facts as v. Graham, 3 Caines (N. Y.) 188; Sherry v. above). The defendant prayed an appeal Denn, 8 Blackf. (Ind.) 552. The doctrine of from the order of the court overruling her all the cases on this point is that the purmotion to set aside the judgment and grant chaser comes into exactly such estate as the a new trial, which prayer for an appeal was debtor had, and if it was a tenancy the denied, and the action of the court in that plaintiff will be tenant also, and estopped in regard has been assigned as error. The de- a suit by the landlord from disputing his fendant had made a motion to set aside the right, in the same manner as the original judgment and grant a new trial at an ear- tenant, who becomes quasi tenant at will to lier day of the term, based on different the purchaser." In Osgood v. Blackmore, grounds from the motion the overruling of supra, on page 264; "It is believed to be a which was sought to be reviewed by appeal, rule, without exception, that when a plaintiff and it seems to have been the view of the in ejectment seeks to recover land against trial court that, if the defendant desired to the defendant in execution, or when it bereview its action in refusing to set aside the comes necessary to rely on a sheriff's deed judgment and grant a new trial, an appeal as a link in his chain of title, he is only reshould have been prosecuted from the order quired to produce a judgment, an execution of the court in overruling the first motion, thereon, and the sheriff's deed for the premand for that reason declined to grant an ap- ises. This rule is so familiar that it repeal from the order overruling the second quires no citation of authorities in its supmotion. Whether the court erred in declin- port." See, also, Gould v. Hendrickson, 96 ing to grant the defendant an appeal from its Ill. 599; Anderson v. Gray, 134 Ill. 550, 25 second order overruling the motion to set N. E. 843, 23 Am. St. Rep. 696; Keith v. aside the judgment and grant a new trial Keith, 104 Ill. 397; Woods v. Soucy, 184 need not be now determined, as the entire Ill. 568, 56 N. E. 1015. record is now before us for review upon this writ of error, and every question has been raised upon this record which could have been raised by the defendant had an appeal from said order been granted. [1] It is next contended that the court erred in rendering judgment against the defendant, as it is said the plaintiff did not show a connected chain of title in himself from the general government or from a common source of title with the defendant. It was not necessary that the plaintiff show a connected chain of title in himself from the general government or from a common source of title with the defendant, as the rule is well settled in this state that, where the purchaser at an execution sale in an action of ejectment against the defendant in execution shows a valid judgment and execution and a sheriff's deed to himself, he has established title in himself to whatever title the defendant had in the premises. Ferguson v. Miles, 3 Gilman, 358, 44 Am. Dec. 702; Hayes v. Bernard, 38 Ill. 297; Osgood v. Blackmore, 59 Ill. 261. In the Ferguson Case, on page 365 of 3 Gilman, it was said: "The law is that in an action of ejectment instituted by the purchaser at a sheriff's sale against the defendant in the execution the defendant cannot controvert the title. The plaintiff is only required to produce the judgment, execution, and sheriff's deed." In Hayes v. Bernard, supra, on page 301 of 38 Ill.: "It is the general rule, when a defendant in execution, when land has been sold thereunder, is sued in ejectment by the purchaser under the execution to recover the possession, he cannot dispute the plaintiff's title. The books are full of cases conceding this proposition. Ferguson v. Miles, 3 Gil [2] It is finally contended that the sheriff's sale was invalid because the sheriff did not pay to the defendant $1,000 as and for her homestead in said premises out of the proceeds of said sale. The statute is as follows: "In case the value of the premises shall, in the opinion of said commissioners, be more than $1,000, and cannot be divided as is provided for in this act, they shall make and sign an appraisal of the value thereof, and deliver the same to the officer, who shall deliver a copy thereof to the execution debtor, or to some one of the family of suitable age to understand the nature thereof, with a notice thereto attached that unless the execution debtor shall pay to said officer the surplus over and above $1,000 on the amount due on said execution, within sixty days thereafter, that such premises will be sold." Hurd's Stat. 1909, ch. 52, § 11. "In case such surplus, or the amount due on said execution, shall not be paid within the sixty days, the officer may advertise and sell the said premises, and out of the proceeds of such sale pay to such execution debtor the said sum of $1,000, and apply the balance on said execution." Id., § 12. The amount was paid to the sheriff by the plaintiff with which to pay the defendant for her homestead right in the premises, and the fact that the defendant, at the time the ejectment suit was commenced, had not received the money, would not defeat the sale under the execution. It is manifest from the terms of the statute the duty devolved upon the sheriff, and not upon the plaintiff in execution, to pay to the execution debtor the $1,000 for her homestead, and the neglect of duty by the sheriff or the obstinacy of the defendant in refusing to accept the money could not defeat the sale and |