this city, not engaged in the giving of such entertainments, as a business, no license shall be required. 909. Each license shall express for what it is granted, and the time it is to continue, and the following tax to license fee, shall be imposed upon each license, granted as aforesaid, and paid to the city collector, on the granting of such license, as follows, to-wit: (1) For entertainments of the first class, ten dollars for every performance or exhibition. (2) For entertainments of the second class, ten dollars for every performance or exhibition. (3) For entertainments of the third class, the following sums: For each circus, or circus or menagerie, seventy-five dollars for each day; for each menagerie, fifty dollars for each day; for each side-show with any circus or menagerie, ten dollars for each and every day of exhibition; for each concert, musical or minstrel entertainment, given under a covering of canvas, ten dollars for each day. (4) For each variety and minstrel show, athletic, ball or similar games of sport, ten dollars for each day; and exhibition of monsters or freaks of nature, and all other exhibitions, performances and entertainments not hereinbefore enumerated, given in a building, hall or under canvas or other cover, or within any inclosure, the sum of twenty dollars for each week or part thereof; but if such exhibition or show shall continue for a whole month or more, then at the rate of fifty dollars per month. (5) For the exhibition, show or device of the fourth class, or any entertainment or other exhibition not herein before otherwise designated, ten dollars for each and every month or part thereof." "911. The mayor shall determine in every case where application for a license under this chapter is made, the class to which the entertainment belongs, and the person or persons to whom the license may be granted shall pay the license tax or fee herein fixed for such license." It does not seem to be questioned that if the foregoing provisions of the ordinance are valid, and can be held to apply to horse races, the defendant was properly convicted. It follows that the construction and validity of the ordinance are the only matters presented for our consideration.

The first question, then, is whether horse races are among the amusements or public entertainments which the ordinance undertakes to license or tax. It, of course, must be admitted that they are not specifically named, and therefore, unless they can be held to come within the general description found in the third division or class, viz. "all other exhibitions, performances and entertainments given in any building, hall, or under canvas or other cover, or within any inclosure," they can scarcely be held to come within the terms of the ordinance. We may take judicial knowledge of the fact that horse races taking place in inclosed grounds, and which, as the evidence shows was the case here, 4,000 to 5,000, and sometimes as

many as from 8,000 to 10,000, people attended, paying an admission fee for the privilege of so doing, were "exhibitions, performances, or entertainments," within the proper meaning of those terms. And such, we think, is the interpretation which must be given them, unless their meaning must be held to be restricted by the preceding words of the same paragraph, upon the principle noscitur a sociis. It is a general rule applicable to the construction of statutes, contracts, and other instruments, that where an enumeration of specific things is followed by general words or phrases, the latter are held to refer to things of the same kind as those specified. In re Swigert, 119 Ill. 83, 6 N. E. 469; Shirk v. People, 121 Ill. 61, 11 N. E. 888. But this is only one of many rules of construction, all of which are to be employed for the attainment of the same end, viz. that of ascertaining the intention of the legislature or the contracting parties, as expressed in the statute or contract sought to be construed; and where, from the whole instrument, a larger intent may be gathered, the rule under consideration will not be applied in such manner as to defeat such large intent. Bish. Cont. § 409. "Where the general word which follows particular and specific words of the same nature as itself, takes its meaning from them, and is presumed to be restricted to the same genus as those words; or, in other words, as comprehending only things of the same kind as those designated by them, unless, of course, there be something to show that a wider sense was intended." End. Interp. St. § 405. The rule is no different where the statute to be construed is penal. Thus, in Foster v. Blount, 18 Ala. 687, it was held that the rule that where, in penal statutes, general words follow an enumeration of words of a particular and specific meaning, such general words are to be held as applying only to persons or things of the same kind as those designated by the particular words, is but a rule of construction, to enable the court to ascertain the intention of the legislature, and, when that intention is apparent, can no more be allowed to govern in the exposition of penal than any other statutes. See, also, State v. Williams, 2 Strob. 474. In this case the general intention of the city council in passing the ordinance is clearly manifested by the language of the first clause of section 907. It is there declared that the division of amusements, exhibitions, etc., into four classes is "for the purpose of providing for the licensing and taxing of theatricals, shows, amusements, and all public exhibitions for gain, in a just and equitable manner." The intention of the ordinance, as thus declared, then, is to license and tax, not only theatricals, shows, and amusements, but all public exhibitions for gain. That horse races conducted as were those exhibited at the racecourse of the Garfield Park Club were public exhibitions for gain is not, and cannot

be, successfully denied. It follows that the imposition upon such horse races of a license fee or tax was clearly within the general intention of the ordinance. Keeping this general intention in view, it is not difficult to interpret the language used in designating and determining what should belong to and be known as entertainments or exhibitions of the third class. To constitute that class, specific enumeration is made of circuses, menageries, caravans, side shows, and concerts, minstrel or musical entertainments, given under a covering of canvas, exhibitions of monsters or of freaks of nature, variety and minstrel shows, athletic, ball, or similar games of sport, to which is added, "and all other exhibitions, performances and entertainments not here enumerated, given in any building, hall. or under canvas or other cover or within any inclosure." That the operation of this general and sweeping clause is not to be restricted by an application of the maxim ejusdem generis is, we think, very obvious. To apply that maxim would defeat the wider intent already expressed, and would do violence to the language of the clause itself. The words used, if given their natural and obvious import, apply, not to other exhibitions, performances, and entertainments of the same genus with those previously specified, but to all other exhibitions, performances, and entertainments not there enumerated, given within any inclosure, etc. And especially, when taken in connection with the wider intent already expressed, there can be no doubt that they were intended to embrace all exhibitions and performances coming within their general scope, whether belonging to the same genus as those specifically enumerated or not. Our conclusion then is, that the horse races exhibited within the inclosure of the Garfield Park Club were included among the exhibitions, performances, and entertainments which, by the terms of the ordinance, constituted the third class.

But it is contended, in the next place, that the crdinance itself is invalid. That the city council had power to provide by ordinance for licensing and taxing horse races and other exhibitions and amusements is, we think, scarcely open to question. The fortyfirst subdivision of section 1 of article 5 of the general statute for the incorporation of cities and villages vested in city councils power to license, tax, regulate, suppress, and prohibit "theatricals and other exhibitions, shows and amusements." We entertain no doubt that horse races exhibited within inclosures, and to which the public are admitted upon the payment of an admission fee, are shows and amusements, within the meaning of this statute.

But it is urged that the ordinance is invalid by reason of ambiguity and uncertainty in its classification of the various amusements upon which it imposes a license fee, and because it delegates legislative power to

the mayor by section 911, which authorizes him to determine, in every case where application for a license is made, the class to which the entertainment belongs and the person or persons to whom the license may be granted. Upon this branch of the case, all we need say is that it is wholly unnecessary for us to pass upon the objections to the ordinance thus raised. Even if there is uncertainty as to the class to which certain other amusements properly belong, there is none as to the class in which horse races are included. And even if section 911 should be held to be invalid by reason of its making an improper delegation of legislative power to the mayor,-a matter as to which we express no opinion,-the validity of those provisions of the ordinance by which a license fee is imposed upon horse races is in no degree impaired, as the class to which horse races belong is clearly determined, and there is therefore no occasion for any action by the mayor by way of assigning them to their proper class, and the license fee to be charged is also fixed and ascertained by the ordinance itself. In our opinion, none of the points raised by counsel for the defendant, in support of their assignments of error, are tenable, and the judgment of the appellate court will therefore be affirmed.

CHICAGO, R. I. & P. RY. CO. v. CITY OF CHICAGO.1

(Supreme Court of Illinois. Jan. 16, 1894.) EMINENT DOMAIN-JUDGMENT-PRACTICE. 1. After damages have been assessed, and judgment of condemnation entered, the court cannot, at a subsequent term, dismiss the proceedings on motion of the petitioner.

2. Where, after such attempted dismissal,

a second action has been begun to condemn the same land for the same purpose, such second action may be dismissed on the defendant's motion, the order dismissing the former case being treated as a nullity.

Appeal from circuit court, Cook county; Frank Baker, Judge.

Condemnation proceedings by the city of Chicago against the Chicago, Rock Island & Pacific Railway Company. There was judgment of condemnation. Defendant appeals. Reversed.

Robert Mather and H. S. Waldron, for appellant. Adolph Kraus, for appellee.

made motions to dismiss the proceeding for the reasons hereinafter stated, but said motions were overruled, a jury was impaneled, who returned a verdict finding the amount of just compensation to be paid, and, after the overruling of a motion in arrest of judgment, judgment was rendered upon said verdict. The present appeal is prosecuted from said judgment, and the main error assigned is the overruling of said motions to dismiss. The reasons upon which the motions were based are substantially as follows: The portion of the right of way across which it was proposed to open Sixtieth street lies in the former town of Lake, which was annexed to the city of Chicago under the annexation law of 1889. By original ordinance passed on August 5, 1885, and an amended ordinance passed on October 27, 1886, by said town of Lake, provision was made for opening said Sixtieth street, from State street to Wentworth avenue, upon the same route, and over the same portion of said right of way, which is described in said ordinance of the city of Chicago passed on January 27, 1890. In pursuance of said ordinance of said town of Lake, said town filed an amended petition on November 5, 1886, in the superior court of Cook county, to ascertain the just compensation to be paid for opening said street across the same portion of appellant's right of way which is sought to be taken or damaged by said petition of said city filed in the circuit court on July 18, 1890. In said proceeding instituted by the town of Lake, a jury was waived, and the cause was submitted, by agreement, to the court for trial, who found the amount of just compensation to be paid; and judgment was rendered upon said finding by said superior court on January 12, 1889, adjudging that the amount so found was a just compensation, and that the owner should accept it, and that upon its payment into court by said town of Lake for the use of the owners, or upon proof of its payment to the owner, the town should have a right to take possession, etc. No appeal was taken from this judgment by the town, nor any writ of error prosecuted to review it; but on July 15, 1890, after said town had been annexed to the city of Chicago, an order was entered in said suit so instituted by the town of Lake, dismissing it. The written reasons filed by the company in support of the motions to dismiss the present proceeding charge that said dismissal of said proceeding instituted by the town of Lake was without the consent of the company, and without notice to it, and that "said superior court had no jurisdiction to dismiss said cause after judgment rendered therein; and the said alleged order of dismissal is utterly void, and of no effect. The motion to dismiss the present proceed. Ing instituted by the city of Chicago is based upon the ground, as alleged in said reasons, that the judgment recovered by the town of Lake was final and conclusive, against the town of Lake and the city of Chicago, as to

the damages to the company caused by the proposed opening of said street, and that said city is barred and estopped thereby from prosecuting the present proceeding. After the filing, on January 20, 1891, of the first motion to dismiss, the appellant filed a bill in chancery for an injunction against the prosecution of this proceeding, for the same reasons set forth in said motions. Said motion was overruled while said bill was pending. A demurrer to said bill was sustained, and it was dismissed for want of equity. Upon appeal to this court, said decree of dismissal was affirmed, as will appear by reference to the case of Chicago, R. I. & P. Ry. Co. v. City of Chicago, 143 Ill. 641, 32 N. E. 178. After the filing of the opinion in the last-named case, the motion to dismiss was renewed on December 8, 1892, as above stated. From the reasoning of the decision in Chicago, R. I. & P. Ry. Co. v. City of Chicago, supra, it would appear that the motion to dismiss should have been allowed. The material point in that case was as to the power of a court of chancery to enjoin a condemnation proceeding, and it was there held that a bill for injunction would not lie in such case, because there was an adequate remedy at law. Such remedy was there stated to be a motion to dismiss in the condemnation proceeding itself; and the company has pursued the course there held to be proper, by making such a motion to dismiss in this proceeding. It is not necessary to repeat here the reasoning of that case. As the facts in the bill which was there before the court are precisely the same as the facts set up in these motions to dismiss, the comments there made upon those facts are applicable here. It was decided in that case that the city of Chicago could not ignore the assessment of damages made in the proceeding instituted by the town of Lake, and that the judgment entered in that proceeding must be regarded, under the circumstances, as final and conclusive as to the amount of damages. This conclusion could not have been reached except upon the theory that the order of dismissal entered in the condemnation proceeding begun by the town of Lake was invalid. That order cannot, therefore, stand in the way of the city of Chicago, if it desires to take possession by paying the judg ment in said former proceeding. Indeed, the company would be estopped from opposing the setting aside of said order of dismissal by its written motion in this case, based upon the charge that said order was void and of no effect. Hence, there is no reason why the city, acting upon the views expressed in Chicago, R. I. & P. Ry. Co. v. City of Chicago, supra, cannot go into court, and have said order of dismissal set aside, and pay the amount awarded as compensation in the former proceeding, and take possession of the property condemned, or, in other words, open the street across said right of way. For the error committed in

1. Where the collector's book for the town in which certain land is located, found in the custody of the proper officers, shows that taxes on said land have been duly collected by the town collector, the book is evidence of the payment of such taxes, although the collector failed to make a return in the book.

2. Where the record on appeal merely shows that there was read in evidence the record of a certain warranty deed from the grantor and his wife, and the deed itself is not set out in the certificate of the evidence, it will not be presumed on appeal that the grantor's wife relinquished her dower in the land conveyed.

3. A transfer of a man's land by means of a tax deed which is mere color of title, followed by possession and payment of taxes for seven years during his lifetime, does not bar his widow's right of dower.

4. A deed given pursuant to a sale made by the alleged administrator of a mortgagee is not evidence of title without proof, other than recitals in the deed, of the mortgagee's death and the appointment of the administrator.

Error to circuit court, Grundy county; George W. Stipp, Judge.

Bill by Edmund D. Taylor against Orpheus A. Root for partition. Pending suit, Margaret Taylor and others were substituted as complainants, and Helen J. Lawrence was substituted as defendant. The bill was dismissed at the hearing. Complainants bring error. Reversed.

Brewer & Strawn, for plaintiffs in error. S. C. Stough, for defendant in error.

PER CURIAM. November 9, 1881, Edmund D. Taylor filed a bill for partition, claiming title to an undivided one-half of the S. W. 4 of section 19, township 33 N., range 8 E. of the third P. M., in Grundy county, Ill. The defendant Orpheus A. Root was in possession under a tax title. Pending the litigation, in November, 1885, Helen J. Lawrence purchased Root's title, and was made a defendant to the bill. The defendant Helen J. Lawrence, in her answer to the bill, set up two tax deeds,-the first, dated November 22, 1860, for the east nine acres of the quarter section; and the second, dated July 26, 1861, for the west 149.88 acres,and also seven years' possession and payment of taxes under color of title. In an amended answer she also set up seven years' actual residence under the tax titles, and also payment of taxes for seven years under color of title while the land was vacant and

unoccupied. After a hearing of the cause, but before a decision was reached, the complainant died, and his heirs were made complainants to the bill, and upon a final hearing on the pleadings and evidence the court rendered a decree dismissing the bill, to reverse which the complainants sued out this writ of error.

It appeared on the hearing that the quarter section of land was patented to James Whitlock, and it may be conceded that a regular chain of title was established from Whitlock to Edmund D. Taylor for the undivided one-half of the quarter, and under this title the complainants would be entitled to recover, unless barred by the statute of limitations set up by the defendant in the answer. We shall not stop to consider whether the title passed under the judgment for taxes, sale, and deeds. Nor will it be necessary to determine whether the de fendant established by the evidence actual residence for seven years under a connected title deducible of record, as required by the act of 1835, or under the second section of the act of 1839. But we think the decision of the case may be properly predicated on section 1 of act of 1839, which, in substance, declares that every person in the actual possession of land under claim and color of title made in good faith, and who shall for seven successive years continue in such possession, and shall during said time pay all taxes legally assessed on such land, shall be adjudged to be the legal owner to the extent and according to the purport of his or her paper title. In order to defeat the complainants' title, and establish a bar under this section of the statute, it became necessary for the defendant to prove in herself-First, color of title; second, seven successive years' possession by herself or grantors under such color of title; third, payment of taxes during the said seven years' possession. The defendant, Helen J. Lawrence, for the purpose of proving color of title, read in evidence the following conveyances: November 22, 1860, tax deed to J. D. Matthews, 9 acres; July 27, 1861, tax deed to J. D. Matthews, 149.88 acres; August 29, 1862, John D. Matthews to David Matthews, deed, S. W. 4; March 25, 1869, David Matthews to Andrew J. Merrin, E. 80 acres; March 25, 1869, David Matthews to Richard Merrin, W. 78.88 acres; March 25, 1869, Andrew J. Merrin to David Matthews, sale mortgage, E. 80 acres; March 25, 1869, Richard Merrin to David Matthews, sale mortgage, W. 78.88 acres; May 3, 1876, Edward D. Matthews to William E. Lewis, deed, E. 80 acres; May 3, 1876, Edward D. Matthews to William E. Lewis, deed, W. 78.88 acres; May 19, 1876, William E. Lewis to Edward D. Matthews, deed, S. W. 4; November 29, 1880, Edward D. Matthews to Orpheus A. Root, deed, S. W. 4; November 16, 1885, Orpheus A. Root to Helen J. Lawrence, deed, S. W. 4. It is plain that J. D. Matthews acquired

in this connection is whether the seven successive years' payment of taxes was established from and after possession taken in March, 1869. Beginning with 1872, Bartlett testified that he was town collector for that year, and A. J. Merrin paid on the east 80 and Richard Merrin paid on the west 80. In order to prove payment for 1873, defendant offered in evidence a book in the custody of the county clerk at his office in Grundy county. The book was entitled "Collector's Book for the Town of Wauponsee, Grundy County, Illinois, for the Year 1873." This book showed that the E. 80 acres, S. W. 4, section 33, range 8, was assessed to A. J.

of the question of the authority of Matthews to execute the power of sale, and assuming that the record shows a regular chain of valid conveyances from Matthews to the defendant, the first question to be considered is whether the evidence shows seven years' possession of the premises under color of title. The land was vacant and unoccupied until the spring of 1869. On the 25th day of March, 1869, the Merrins obtained deeds from David Matthews, and at once went into possession of the land under that title, and commenced improving it. In 1870 they leased it to J. N. Patterson, who farmed the land under the lease that year. The next season the Merrins moved on the land; remaining there, cultivating it, until they were dispossessed by an action of forcible detainer in 1878 or 1879, brought by Lewis, who acquired their title under the foreclosure sale made by E. D. Matthews, May 3, 1876, wherein the land was sold in satisfaction of a mortgage they had given David Matthews for the purchase money for the premises. Here was a period of over seven years that the land was occupied and cultivated by the Merrins under the title they acquired of Matthews, which passes by mesne conveyance to the defendant. It is claimed, however, that in the spring of 1871 Taylor instituted suit in the district court of the United States at Chicago, and recovered possession of the land, and he subsequently sold it by verbal contract to one of the Merrins. We find no satisfactory evidence in the record to sustain this position. The evidence is clear that the Merrins entered under the Matthews title, and occupied under it so long as they were on the land. It is perhaps true that when the Merrins discovered that the mortgage they had given Matthews was being foreclosed, they attempted to set up that they were holding possession under Gay, of St. Louis, but they could not dispute the title under which they entered, and attorn to him, as was settled by Merrin v. Lewis, 90 III. 507. We think it apparent from the testimony that possession of the land was held under the Matthews title, and that alone, from 1869 down to the date the cause was heard.

The remaining question to be considered

Whom Paid" is the following: "Dec. 6. A. J. Merrin." As to the other 80, the book shows assessed to Richard Merrin, and paid by him December 13th. The collector failed to make a return in the book, but it is so clear that the book was the collector's book for 1873, for the town in which the land is located, that the omission did not vitiate it. It was found in the custody of the proper officer, and showed that the taxes had been duly collected by the town collector for that year. The name of Merrin was not correctly spelled, but we do not regard this omission of any importance. We think it plain from the book that A. J. Merrin paid the taxes for that year on the east 80, the one he owned; and Richard Merrin paid on the other. As to 1874, Button testified that he was the collector. Andrew J. Merrin paid on the east 80, and his father Richard on the other. As to 1875, Miller, the collector, testified that A. J. Merrin paid taxes on the east 80, and Richard Merrin on the west. As respects 1876, Patterson testified for the year 1876 Reading paid for E. D. Matthews. The witness also testified that he was also elected county treasurer in fall of 1877, and held the office until the fall of 1886. That for 1877 Matthews paid the taxes on the quarter section, and each year thereafter, until he conveyed to Root, when the taxes were paid by Mrs. Lawrence. The land was conveyed from Matthews to Root November 29, 1880; so that, under the evidence of Patterson, the taxes to and including 1879 were paid by Matthews, and for the year 1880 the proof shows that they were paid by Mrs. Lawrence for Root, making a tax payment of eight successive years. There was an attempt made on the trial to prove that Taylor paid the taxes for 1875, but the evidence was not sufficient to establish that fact. A man representing himself as Richard Merrin called on Mrs. Taylor, and procured some $36, to be used, as he claimed, to pay those taxes on this land. Who the man really was, or what use he made of the money, does not appear. In 1875 the two Merrins were on the land, claiming as owners under the Matthews title, and they paid the taxes that year, as they did in former years; and if one of them did procure money from Mrs.