« AnteriorContinuar »
that the executor will not make a bona fide settled; and there is nothing more thoroughly effort to secure an accounting, or other like cir- setiled in the law of partnership than that the cumstances appear, it has been held that the rigbis of the heirs of a deceased partner are beirs may maiviain the action. In the absence subject to the arljustment of all claims between of special circumstances, heirs bave do the partners, and attach only to the surplus locus standi against the surviving partner. 2 which remains when the partnership debts are Lindley, Parin. 494; Ilarrison v. Righter, 11 all paid and the affairs of the firm wound up. N. J. Éq. 389; Hyer v. Burdett, 1 Euw. 'Ch. Uniil all the debts are paid the rigbis of the 825.
heirs do not attach. Grissom V. Moore, 106 Assuming, without deciding, that the facts Ind. 206, and cases citeil, 3 West. Rep. 657; as pleaded in the present case make it apparent Walling v. Buryess (Ind.) 7 L. R. A. 481; that the executors bave placed themselves in Deeter v. Sellers, 102 Iud. 458. such an attiude towards the surviving partner The beiis of a deceased partner have no inand the transaction sought to be set aside as to terest, as such, in the property of the firm; bring the case within the exception, it becomes their only remedy is to compeltbe surviving pertinent to inquire whether or not the appel. pariper 10 account for the surplus after be lants, as beirs, show any interest in the prop settlement of ali the partnership liabilities, and, erty of the late firm of Wysor & Jack upon ordinarily, a court of equity will not entertain which to predicate an action.
jurisdiction of the affairs of a partnership unIf the executors had no power under the iil by its decree a final adjustment of the busiwill to sell and convey, or the surviving part. pess can be effected. Thompson v. Lowe, 111 ner was incompetent to purcbase or receive a Ind. 272, and cases cited. 9 West. Rep. 671; conveyance, or if, for any of the other reasons Scott v. Sear'es, 5 Smedes & M. (Miss.) 25; urged, the transaction between the executors Rossum v. Sinker, 12 Cevt. L. J. 202, and note. and the surviving partner was illegal and the Now, while it appears that the deceased conveyance void, iben the property remained partner was indebted 10 ile tir, and ibat the in the possession and under the qualified firm was indebted on partnership account, and ownersbip of the surviving partner, unaffected that ibe surviving pariper agreed, in considerby wbat transpired.
ation of the conveyance wbicb is assailed, to It is familiar law that a surviving partner pay these and other debis for which the teshas the right 10 the control and possession of tator's estate was liable; and wbile it may be the property of the firm, and that be may dis. ivferred trom the facts alleged in the complaint pose of it in order to adjust tbe partnersbip that the surviving partner has paid all the debts accounts, and is only liable to the representa of the firm, except what remains due to bimtives of the deceased partner for what remains' self on the partnership account,-it pow here in bis bands after ibe partnersbip affairs are appears that the entire interest of the deceased
showing a balance in his favor to be divided, he is , de edent to make bis general assets liable for debts insolvent, so tbat such balance is not substintial, contracted in continuing trade after his death, will assets, bis su reties on the executorial bond are not render his estate a partner. First Nat. Bank v. liable for such balance. Hooper v. Hooper, 32 W. Farmers Deposit Nat. Bank (Pa.) 5 Cent, Rep. 505. Va. 526.
Where, upon the death of a partner, the business Where he wastes the social assets at a time when is continued under the management of the surthe partnership atrairs are, or under the law should vivor, with the joint funds, and such survivor pur. be, regarded as closed, if the survivor is insolvent chases property and erects a factory thereop with bis reties on the executorial bond are not liable. the partnership funds, and takes the title in his Ibid.
own name, he and his beirs hold such legal title The fact that executors have left to one of their subject to the partnership trust. A. & W. Sprague number, who is a surviving partner of the testa- Mfg. Co. v. Hoyt, 29 Fed. Rep. 421. tor, the entire management of the estate, and that And where a corporation is formed from such he retains in the firm (without authority) the cupi- partnership after the purchase of such real estate, tal of the testator, will not give bim the right to such corporation also takes the partnership's equipledge securities of tbe estate for a loan to the table title to such property. Ibid. firm. In such case the pledgee may be subrogated A surviving partner in a cotton plantation, beto whatever rights the pledgor bas as cestui que fore the war, not author zed by parmerslip artitrust or legatee in the securities pledged. First cles or the will of the neceused partner, could conNat. Bank v. Farmers Deposit Nat. Bauk (Pa.) 5 tinue firm business only until the then growing Cent. Rep. 505.
crop was gathered and sold. Clay v. Field, 34 Fed.
The facts that the surviving partners continued
the business after the death of a partner, and the A bond furnished by a surviving partner is legal assets were conveyed to one of them, under an and is required by law. Macready v. Schenck (L.) agreement between them, in consideration of his A pr. 22, 1889 (not yet reported).
assuming the payment of certain mortg:ges upon A recovery on such a bond is not limited to the firm property, which was carried ont; and tbe dominal damages, wbere ne bas failed to pay firm property turned over to such partner did not ex. creditors, while having a balance of trm moneys ceed in value 75 per cent of the indebiedvess asin his hands, which he has been ordered by the sumed, do not affect the rights of defendant claimcourt to pay them. Miller v. Kingsbury, 128 11. 15. ing as heir-at-law of the deceased partner. Jeuness
v. Smith, 7 West. Rep. 3:23, 61 Mich. 91. Continuince of business after death of partner.
The survivor of two surgeons conducting busi.
ness as copartners is not obliged to give up the Nothing but the clearest and most unambiguous business and sell the practice in the absence of any danguage, demonstrating in the most positive contract to that effect. Mandeville v. Harman, 5 manner, by contruct or by will, the intention of the Cent. Rep. 627, 42 N. J. Eq. 115.
partner would not be absorbed in the adjust- cretion, upon such terms as they might think ment of the partnership account with the sur. | best; and the autbority thus conferred vecesviving partner. Ilaving averred facts from sarily operated as “diñerert directions” from which the inference arises that the surviving those prescribed by the Statule. The conveypartner bas paid all the partnership debts, and ance was not therefore invalid because the that the estate of the deceased partner is in- terms of the Statute were pot observed or on debted to him, it is essential to the right of the account of any defect in the power of the ex. heirs to call bim 10 account that they make it, ccutors. appear that he bas in bis bands partnership This brings us to inquire wbether the surproperty in excess of the amount required lo viving partner occupied such a relation to the reimburse bimself. The averments in the com- property and to those concerned as to disqualiplaint wholly fail to do tbis, and the conclusion fy bim from purchasing ihe ii terest from the is therefore unavoidable that the complainants executors of the deceased partner. fail to show such an interest in the property as It is not to be doubled ihat a surviving partentitles them w invoke the aid of a couri of ner is regarded as a trustee primarily for the equity.
creditors of the firm, and secondarily for the This conclusion necessarily follows from the heirs or personal representatives of the deceased application of the rule that a surviving partner partner in all that remains, or fairly ought to is entitled to the custody and management of remain, after adjusting the partriership acthe assets, unless it be shown that he is com count. Accordingly, it has been correctly laid mitting waste or otherwise mismanaging the down that “the survivivg paripers are beld affairs of the film, and is only liable to the strictly as trustees, and tbeir conduct in dis. beirs or representatives of the deceased partner charging their trust is carefully looked after by for what remains after everything is settled up the courts of equity. Thus, like other trusRoys v. Vilas, 18 Wis. 169; Shanks v. Klein, tecs, l'ey cannot sell the property of the firm 104 U. 8. 18 (26 L. ed. 635), 13 Cent. L. J. 369; ard buy it themselves; por, as the converse of Anderson v. Ackerman, 88 Ind. 481; Cobble v. this, can they buy from themselves property Tomlinson, 50 Ind. 550.
for ibe firm. Their trust being to wind up the If, however, it were conceded that it an- concern, their powers are commensurate with peared ibat ibe partnership assets exceeded in the trust. ... Their trust is to wind up the value the amount necessary to adjust tbe part concern in the best mapper for all interested. nership account, it would by no means follow and therefore without unnecessary delay." that the appellants could maintain this ac- Parsons, Parin. p. 442; Case v. Abuel, 1 Paige, tion.
393; Sigourney v. Munn, 7 Conn. 11; Jones v. It appears that more than fourteen years be- Derler, 180 Mass. 380, 39 Am. Rep. 459. fore the commeucement of this action, the ex- Being in a sense a trustee, the surviving ecutors of the deceased partner on the one partner cannot, of course, speculate upon the hand, acting under tbe authority conferred by property which the law commits to his custody, the will, and the surviving partner on the solely for his own advantage, in disregard of other, consummated a final settlement and ad- the interest of bis cestuis que ti ust; aud if he justment of the partnership account of Wysor makes profits out of the trust property, in the & Jack.
course of the adjustment of the affairs of the The powers conferred by the will are broad partnership, he is held to account to those inand comprehensive, and include the power to terested for their share. He cannot purchase settle, adjust and compromise all debis owing the trust roperty from bivsell, no mailer by the testator, and to make settlements with whether the attempt be made by means of a his former partners and each of them without public or privale sale. This is so, not only beany authority from any court, and to sell and cause his duty as seller and his interest as pur. convey, either at public or private sale, with or chaser are in irreconcilable conflict, but for ibe without appraiseinent, avy or all of ibe testa. more cogent reason that it is indispensable to tor's real estate, od such terms as to them every legal contract of sale and purchase that should seem best, in order to pay and satisfy there be iwo contracting pariies, competent 10 debts against bis estate. It thus plainly ap. enter into a binding engagement with each pears tbat it was the purpose of the testator iootber. Hence an attempt by a trustce wbo holds invest bis executors witb power to make com- property in trust, wbeiber be be surviving promises and settlements at their discretion, pariser, administrator, or w batever his designaand to sell and convey his real and personal tion, to sell the trust estate lo bimself is everyestate according to their best judgment. The where held to be void. Martin v. Wyncoop, 13 statute in force at the time the sale was made Ind. 266; Hunsucker v. Smith, 49 Ind. 118; provided, in effect, that where lands were di. Murphy v. Tetor, 56 Ind. 545; Rochester v. rected to be sold by a will, the sale, as to giv. Lerering, 104 Ind. 562, 2 West. Rep. 330; Nel ing notice, conveying, taking notes and mort- son v. Ilayner, 66 M. 487. gages, return and confirmation, should be In tbe case of a sale thus made or attempted, conducted as sales by an administrator for the it can well be said, it is of no avail to show payment of debts, "unless by the terms of the that the trustee acted in good faith. Such will different directions are given, but no peti transactions are poisonous in their tendencies, tion or notice of the filing thereof shall be re- and violative of the principles of public policy. quired.” 2 Rev. Stat. 1876, p. 530.
They are declared void, not for tbe purpose of As was in effect said in Munson v. Cole, 98 affording a remedy against actual miscbief, Ind. 502, the land was not directed to be sold but to prevent the possibility of wrong. Pot by the will. That was left 10 the discretion of ter v. Smith, 36 Ind. 231; Morgan v. Waltles, the executors. But if it bad been, the execu- 69 Ind. 261. tors were authorized to sell at their own dis. These principles do not apply or control in the case of a sale made by the personal repre-convey the testator's real estate. Regarding sentative of a deceased partner to a surviving be partnership assets, although consisting of partner. No good reason can be suggestel lands, as personalty, and the lower conferred why a surviving partner should be held legally by the fourth clause of tbe will to make a setincompetent and absolutely disqualified from vement of the partnership affairs in vesiel the becoming the purchaser of the interest of his executors with ample authority, in case it be. deceased parlier in the partnership business, came expedient or decessary in the course of from bis properly.authorized legal representa the settlement to transfer property to the surtive, while very many reasons occur why sucb viving partner, to make such transfer. Lud transactions, fairly entered into, should not low v. Cooper, supra. only be upheld, but encouraged. In addition, Moreover, the power contained in the fifth tbe adjuaged cases firmly support the right to clause must be construed in connection with make such sales. Brown v. Slee, 103 U. S. the duties imposed upon the executors by the 828 (26 L. ed. 618): Baird v. Baird, 1 Dev. & fourib clause of the will. It will be observed B. Eq. 524, 31 Am. Dec. 399; Chambers v. that the executors are directed to sell and conHowell, 11 Beav. 6: Roys v. Vilas, supra. vey so much of the testatoi's real estate as
In Kimbull v. Lincoln, 99 III. 578, after re- they shall deem necessary to pay and sailisfy his iterating the rule that a surviving partner debts. Construing both clauses of the will tocould not become a purchaser of the birm prop.gether, it becomes apparent that the executors. erty at bisowo sale, nor from a co-trustee, the bad authority to make any proper selik ment court said: "but the reason that would forbid wbich, in their discretion, seemed fit and best. a transaction of this character bas po applica- (2) À settlement and final accounting with tiou to a case where a surviving partner pr. the surviving partner of the partnership matcbases property from the executor or adminis. ters having been actually consummatel by the trator of the deceased partner, and hence the executors who were duly empowered to that rule which would govern tbe one case cannot end, a court of equity will not disturb ibe setcontrol the other.” Ludlow v. Cooper, 4 Ohio llement so made until it is impeacbed as fraudSt. 1.
ulent or unfair, or unless collision between the It bas tbus been seen that the executors had executors and surviving partner is shown. plenary power to make setilement of the part- Nothing less than fraud or collusion will innersbip account, and to sell and convey the validate an arrangement between an executor real und personal estate of tbe testator at their and a surviving partner, whereby the latter bediscretion, and that ihe surviving partner was came the purchaser of the deceased partner's competent to negotiate a setilement of the af. share. Travis v. Milne, 9 Hare, 141; Daries fairs of the firm and to purchase the interest of 1. Davies, 2 Keen, 534; Chambers v. Howell, bis deceased partner.
81 pra; Stainton v. Carron Co. 18 Beav. 146; It is contended, however, that the power Smith v. Everett, 27 Beav. 446; 2 Lindley, wbich the will conferred upon the executors Partp. Rapalje's ecl. 487. was a power to sell the real or personal estate As bas been seed, there is no pretense of any of the testator, and ibat the power thus con- fraud or collusion in the present case. ferred was not well executed by the convey. Fivally, after the settlement and :iccounting ance of the testator's interest in ibe real estate between theexecutors and ibe surviviug frittner of the firm, in consideration of the agreement has been bad, ard the account closed, its apto pay debts, as already indicated. Tbe argu-pears to have been the fact in the present case, ment is that the agreement between the execu- a court of equity will vot, after ibis long acqui. tors and ihe surviving partner was the same in escence, unexplained by circumstances, decree legal effect as an exchange of properly, and the opening up of the account, even though it tbal a power 10 sell does not authorize ad ex appeared that the settlement had been irregucbange. Russell v. Russell, 36 N. Y. 581; lary made. Taylor v. Galloway. 1 Ohio, 232; Ringvold v. Ii is the settled doctrine of courts of equity Ringgolil, 1 Harr. & G. 11; King v. Whiton, 15 that unexplained delay in the prosecution of a Wis. 684; Cleveland v. State Bank, 16 Obio right until it becomes stale constitutes such St. 236.
laches as forbids the interference of the court. Conceding that the proposition above stated Snith v. Thomann, 7 Gratt. 112, 54 Am. is correct as a general rule. it cannot be made Dec. 126, and note; Hough v. Coughlan, 41 III. available in the appellant's behalf for two 131; 2 Story, Eq. Jur. $ 1520.
Here, as we have seen, there is an unex(1) The power conferred upon the executors plained delay of fourteen years. The Statute comprehended much more than a mere naked of Limitations would bave barred an action authority to sell aud convey the testator's real between the partners themselves in case the estate. They were especially invested wiib settlements had been made by them. After power to make settlement with the partners of this lapse of time a presumption of innocence ihe testator, and with each of them, of all and fair dealing arises, and removes every inmallers periaining to the partnersbip business, ference or imputation of bad faith from the and to adjust, selile and compromise all debts, transaction, and the settlement must repose as claims or demands against ibe estate of the the parties made it. Prevost v. Gratz, 19 U. S. testator, according to their best judgment; 6 W beat. 481 (5 L. ed. 211); Rochester v. Lea anil, in addition to the foregoing power, they ering, 104 Ind. 562, 2 West. Rep. 330. were authorized, at their discretion, to sell and The judgment is affirmed, with costs. 7 L RA
TEXAS SUPREME COURT,
A. S. NEWSON, Appt.,
Under its charter the City of Galveston had
the power to tix the times and places at which CITY OF GALVESTON et al
fresh meats might be sold within its corporate
limits, and to prohibit their sale at other times (....Tex.....)
and places; and ile ordinances prohibiting the
establishment and conduct of private markets 1. A city has power to forbid the selling for such purposes within the limits therein of fresh meats elsewhere than at murket prescribed were a proper exercise of that houses establishe i by it, where its charter em
power. powers it to establish market houses, designate, control and regulate market places, and regulate Senbury, 8 Jobns. 418: Neir Orleans v, Staf,
Buffalo v. Webster, 10 Wend. 100; Bush v. tbe vending of fresh meats.
fora, 27 La. Ano. 417; Wartman v. Philadel2. Licensing a person to keep a private meat
market for several years does not compel the phin, 33 Pa. 202: Ash v. Pecnle, 11 Mich. 347; city to continue granting such a license, or to 1 1. Dillon, Mun. Corp. $$ 380, 384; Tiedeman, probibit keeping a market within the district Pol. Powers, 311-313; St. Louis v. We'rer, 44 where it is situated.
Mo. 547; Winnsboro v. Smart, 11 Rich. L. 551. 8. A person is not deprived of his prop
The exercise of ibis power by the City is in erty without due nrocess of law by an or. the nature of a police regulation, and dies not dinance forbidding private markets within cer. violate private riguals or improperly restrain tain limits, in which he has established a market trade. under license from the city and expended money Re Nightingale, 11 Pick. 169; Nero Orleans v. thereon,
Stafford, 27 La. Ann. 417; Wartman v. Philor 4. Denying the privilege to sell meats delphia, 33 Pa. 202; 1 Dillon, Mun. Corp. in a city except at certain places is not void as in $ 326. restraint of trade.
Green-grocers and vendors of fresh mcats,
fisli, poultry, etc., bave always been held to (March 18, 1890.)
be proper subjects for the exercise of ibe police powers of a State or city.
1 Dillon, Muin. Corp. $ 334; Tiedeman, Pol. the District Court for Galveston County Powers, 312-314. dismissing his bill filed to enjoio interference
Forbidding, by or linance, the establishment by the cilv authorities with a private market or conduct of private markets for the sale of owned and kept by him for the sale of fresh fresb meats, within certain limits, and punishmeals. Afirmed.
ing by fine any violation thereof, was not a The facts are fully stated in the opinion. Taking by the City of tbe plaintiil's property,
Messrs. Quitman Finlav, John Lovebut was simply a legitimale regulation of the joy and A. Sampson, for appellant:
use and enjoyment of that property by bim, The ordinance fixing the boundaries within under the police powers delegated to the City which no private market shall be established, by the State. and fixing the rental of stalls in the public 1 Dillon. Mun. Corp. $ 141; Nero Orleans v. market, and prescribing a penalty for its viola- Stafford, 27 La. And. 417: Tiedeman, Pol. tion, is in restraint of trade, unreasonable, ty Powers, 313; Louisville C. R. Co. v. Louisville, 8 rannical, oppressive and void.
Bush, 415. St. Paul v. Laidler. 2 Mion. 190, 72 Am. Whatever right to establish and conduct or Dec. 99, and note: Slaughter House Cases, 83 maintain a private market the plaintiff may U. S. 16 Wall. 36 (21 L. ed. 394), (Judge Field's have acquired from the City in 1984, that right dissenting opinion, divided court); Bethune v. was necessarily subordinate to ibe City's right Hluches, 28 Ga. 560, 73 m. Dec. 749; Caldwell at all times to the exercise of its police powers V. Alton, 53 III. 416, 75 Am. Dec. 282.
over such occupation. The orilinance amounts to the damaging and Tiedeman, Pol. Powers, 287; 1 Dillon, Mun. destroying of petitioner's property without Corp. $ 334. compensation, and is void.
State Const. Bill of Rights, $ 17; U. 8. Const. Stayton, Ch. J., delivered the opinion of 14tb Amend.
the court: It amounts to the depriving of petitioner of This was a suit for injunction, instituted in property without due process of law, and is the District Court of Galveston County, Jan. void.
uary 26, 189, by A. S. New son agajist the U. S. Const. 14th Amend.
City of Galves' on, in wbich it was sought to Mr. Sam, W. Jon's, for appellees; restrain the latter from interfering wiibile pri
The State of Texas, under its police power, vate market for the sale of fresh meats, conducthas the all' hority to establish and erect markets.eld by the former in violation of an ordinance and to authorize llic establishment of markets of the City prohibising such markers in the to forbid the sale or purchase of marketable territory bounded by certain stree's within its articles except at designated places, and to con corporate limits. Judne N. G. Kistrell, of the fine the prosecution of certain irades to certain Twellib Judicial District, granted a prelimi. localities; and it may delegate this power to anary injunction in accordance with the prayer municipal corporation.
of the plaintiff's bill; and on February 23, 1889, 1 Dillon, Miin. Corp. ss 141, 380; Tiedeman. this injunction was by the court, on motion of Pol. Powers, 431; First Municipality v. Cut lefendant, and after demurrer and sworn an. ting, 4 La. Apn, 335
swer filed by it, dissolved, and the plaintiff declining to introduce any evidence in support City of Galveston within the territory embraced of the aliegations of his bill, or to proceed fur- between Thirteenth Street on the east, and ther with the case, the same having been regu- Twenty-Seventh Strect on the west, and Avelarly called for urial on its merits, the bill was nue K on the south, and the cbannel of Galdismissed; to which rulings the plaintiff ex- veston Bay on the north; and by the ordinances cepted, and gave no'ice of appeal. The facts of the City any person violating the provisions bearing on the coutroversy, necessary to be of this ordinance is subject 10 a fine of $10. stated, are thus correctly given in condensed "On February 18, 1839, the city council form by counsel for appellees, from the plead again amended the Revised Ordinances by the ings:
passage of the following: 'Hereafter it shall By its charter, the City of Galveston is au be unlawful for any person to establish, operthorized and empowered to establish and erect ate or maintain any private market for the sale markets and market bouses; designate, con of butchers' meats within the following bountrol and regulate market-places and privileges; | daries in the City, to wil: between Thirteenth inspect and determine the mode of inspecting Street on the east and Twenty-Seventh Street meat, fish, vegetables and all produce, and on the west, and between Avenue K on the every article and thing brought therein for sale; south and the channel of the bay on the north. to license, tax and regulate merchants and all Any person who shall violate the provisions of other trades and professions, occupations and this article shall, on conviction, be fined $10, callings, tbe taxing of which is not prohibited and each and every day any such violation by the Constitution of the State; to regulate ihe sball occur shall constiute a separate offense.' inspection and vending of fresh meats, poultry, “In October, 1884, the plaintiff, A. S. News fish, vegetables, fruits, butter, lard and other son, made application in writing to the city provisions, and the place and manper of selling council for permission to establish, under the fish and inspecting the same; to make such Ordinance of 1830, which was then in force, & rules and regulations in relation to butcbers as private market, in the City of Galveston, for the city council may deem necessary and proper; the sale of fresh meats. This application was and to pass all ordinances, rules and police granted by the council, and immediately there regulations, not contrary to the Constiiution after the plaintiff established, on Twenty-First of this State, for the good government, peace Street, between Market and Mechanic Streets, and order of the City, and the trade and com- in said City, a private market for the sale or merce thereof, that may be necessary or proper fresh meals, fitting up the same with refrigerato carry into effect the powers vested by its tor and other appliances at an expense to himcharier in the said corporation, the city gov- self of several thousand dollars, and continued, ernment or any department thereof; and to unmolested, to conduct such market, at a profit, enforce the observance of all such rules, ordi. from that time until January 1, 1839. parDances or police regulations, and punish viola- ing to the proper officer of the City, quarterly tions thereof by fines, penalties and imprison in advance, the tax imposed by that ordinance ment, -fines being limited to $200, and impris for the exercise of such privilege. This prionment to three months. In pursuance of vate market of the plaintiff is located within these powers, the city council, in 1880, passed the limits in which such markets are inhibited an ordivance authorizing the establishment of by the provisions of the Ordinances of October privale markets for the sale of fresh meats 2, 1848, and February 18, 1-89. within the corporate limits, upon written anpli. “Prior to January 1, 1889, the City bad cation to the city council for that privilege, erected and completed, within the limits destating the length of time and the place where fined by the Ordinance of October 2, 1888, a such market was to be established, the time large and commodious market-bouse, for the for such privilege not to be less than three por accommodation of the public and those enmore than twelve months; and, if granted, in gaged in vending fresh meals, etc., and conwhole or in part. each and every person occu- iaining stalls to let for such purpuses at a reapying such market to pay for the privilege sonable rental fixed by the city council. No quarterly, in advance, at the rate of $50 per privilege to establish or conduct a private marannum, and all private markets to be governed ket in i be city limits had been granted to the by and stand under the ordinances, rules and plain'iff since January 1, 1884, and the last regulations of the said City, and imposing a granted to bim expired December 31, 1886. In five or penalty of not less than $10 por more January, 1889, he tendered, for the quarter than $50 for each day's violation of any of the commencing the first of that month, to the city provisions of said ordinance. In October, official whose duty it is to collect taxes and 1887, the city council amended this ordinance fees for licenses, the amount imposed, under by providing that all market privileges there the Ordinance of 1880, for the privilege of contofore granted should terminate on the 1st day ducting a private market within the City, but of January, 1848, and all market privileges ibe oflicer declined to receive the same, and thereafter granted should terminate on the 1st refused to issue him further license in tbat be day of the next succeeding January. June balf; and ibe plaintiff was then polified to de 18, 1898, the city council digested all ordinadces sist, under penalty of the law, from further of the City of a general nature, and continued conducting his said market for the sale of fresh in full force anii effect the ordinance of 1880, meats at the said locality on Twenty-First as amended in October, 1887.
Street, within the said prescribed limits. Not"On October 2, 1888, the city council adopted withstanding, however, the change in the law, an ordinance amendatory of ihe Revised Ordi- and the refusal of the City to further grant nances of the City adopted June 18, 1898, pro- bim ihc privilege of conducting bis said mar. viding that from and after January 1, 1889, no ket, the plaintiff continued the sanje, and was private market should be established in the in January, 1889, arrested under a warrant