TEXAS SUPREME COURT.

"On February 18, 1889, the city council

clining to introduce any evidence in support | City of Galveston within the territory embraced of the allegations 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 Street on the west, and Avelarly called for trial on its merits, the bill was nue K on the south, and the channel of Galdismissed; to which rulings the plaintiff ex-veston Bay on the north; and by the ordinances cepted, and gave notice of appeal. The facts of the City any person violating the provisions bearing on the controversy, necessary to be of this ordinance is subject to a fine of $10. stated, are thus correctly given in condensed form by counsel for appellees, from the plead-again amended the Revised Ordinances by the ings: passage of the following: 'Hereafter it shall be unlawful for any person to establish, operate or maintain any private market for the sale of butchers' meats within the following boundaries in the City, to wit: between Thirteenth Street on the east and Twenty-Seventh Street on the west, and between Avenue K on the south and the channel of the bay on the north. Any person who shall violate the provisions of this article shall, on conviction, be fined $10, and each and every day any such violation shall occur shall constitute a separate offense.

By its charter, the City of Galveston is au thorized and empowered to establish and erect markets and market houses; designate, con trol and regulate market-places and privileges; inspect and determine the mode of inspecting meat, fish, vegetables and all produce, and every article and thing brought therein for sale; to license, tax and regulate merchants and all other trades and professions, occupations and callings, the taxing of which is not prohibited by the Constitution of the State; to regulate the inspection and vending of fresh meats, poultry, "In October, 1884, the plaintiff, A. S. Newfish, vegetables, fruits, butter, lard and other son, made application in writing to the city provisions, and the place and manner of selling council for permission to establish, under the fish and inspecting the same; to make such Ordinance of 1880, which was then in force, a rules and regulations in relation to butchers 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 Constitution 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 of merce thereof, that may be necessary or proper fresh meats, fitting up the same with refrigerato carry into effect the powers vested by its tor and other appliances at an expense to himcharter 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, 1889. pavnances or police regulations, and punish viola-ing to the proper officer of the City, quarterly tions thereof by fines, penalties and imprisonment,-fines being limited to $200, and imprisonment to three months. In pursuance of these powers, the city council, in 1880, passed an ordinance authorizing the establishment of private markets for the sale of fresh meats within the corporate limits, upon written application to the city council for that privilege, stating the length of time and the place where such market was to be established, the time for such privilege not to be less than three nor more than twelve months; and, if granted, in whole or in part, each and every person occupying such market to pay for the privilege quarterly, in advance, at the rate of $50 per annum, and all private markets to be governed by and stand under the ordinances, rules and regulations of the said City, and imposing a fine or penalty of not less than $10 nor more than $50 for each day's violation of any of the provisions of said ordinance. In October, 1887, the city council amended this ordinance by providing that all market privileges theretofore granted should terminate on the 1st day of January, 1888, and all market privileges thereafter granted should terminate on the 1st day of the next succeeding January. June 18. 1888, the city council digested all ordinances of the City of a general nature, and continued in full force and effect the ordinance of 1880, as amended in October, 1887.

"On October 2, 1888, the city council adopted an ordinance amendatory of the Revised Ordinances of the City adopted June 18, 1888, providing that from and after January 1, 1889, no private market should be established in the

in advance, the tax imposed by that ordinance for the exercise of such privilege. This pri vate market of the plaintiff is located within the limits in which such markets are inhibited by the provisions of the Ordinances of October 2, 1888, and February 18, 1-89.

"Prior to January 1, 1889, the City had erected and completed, within the limits defined by the Ordinance of October 2, 1888. a large and commodious market-house, for the accommodation of the public and those engaged in vending fresh meats, etc., and conlaining stalls to let for such purposes at a reasonable rental fixed by the city council. No privilege to establish or conduct a private market in the city limits had been granted to the plaintiff since January 1, 1888, and the last granted to him expired December 31, 1886. In January, 1889, he tendered, for the quarter commencing the first of that month, to the city official whose duty it is to collect taxes and fees for licenses, the amount imposed, under the Ordinance of 1880, for the privilege of conducting a private market within the City, but the officer declined to receive the same, and refused to issue him further license in that behalf; and the plaintiff was then notified to desist, under penalty of the law, from further conducting his said market for the sale of fresh meats at the said locality on Twenty-First Street, within the said prescribed limits. Notwithstanding, however, the change in the law, and the refusal of the City to further grant him the privilege of conducting his said market, the plaintiff continued the same, and was in January, 1889, arrested under a warrant

104; 1 Dillon, Mun. Corp. §§ 381-392. The case of Le Claire v. Davenport, 13 Iowa, 210, goes much further, in that it protected a private individual in the exclusive privilege to furnish a market-place.

Palestine v. Barnes, 50 Tex. 538, seems to have recognized the power of a municipal corporation to confer like exclusive market privileges. We refer to the last two cases cited for illustrations of the rulings on the general question before us, but are not called upon, by the facts of this case, to adopt or reject them on the question of power to confer such exclusive privileges. The character of power the City exercised in authorizing meats to be sold in private markets was not such as the City could be prevented from exercising again by withdrawing the privilege whenever the public good required it. The police power possessed by such corporations cannot be fettered by contracts, but must be left free to be exercised at all times, whether in conferring or withdrawing privileges once conferred. If license tax bad been paid for a year, this would not deprive the City of the power to withdraw the privilege before its expiration, if the public welfare demanded it. Much less would the fact that the City for a time had received the tax, and granted the privilege, make it incum

from the recorder's court of said City, upon | People, 11 Mich. 351; Tiedeman, Pol. Powers, complaint filed therein, charging him with a violation of the ordinances prohibiting the establishment of private markets for the sale of fresh meats within the limits in said City prescribed by the aforementioned ordinances. The plaintiff was at the time a renter of stalls in the said market-house erected by the City, and vended meats therein, as well as at his private market. The prosecution in the recorder's court was pending at the time of the filing of the bill and the service of the writ of injunction in this case. The bill charges that the plaintiff's private market having been established at an expenditure of his moneys in October, 1884, under permission from the city council, his right to conduct the same, un molested, had become vested, and the City was without authority to interfere with him in its exercise; and the ordinances passed subsequently in October, 184, prohibiting the establishment or conduct of private markets within the limits therein defined, are null and void, in so far as they affect that right; that the said ordinances are in restraint of trade; that the enforcement of them would be to deprive the plaintiff of his property without due process of law; and also other matters, -all of which are specifically denied in the defendants' answer." Under the provisions of the charter empow-bent on it to continue to do so. If appellant ering the City to establish market-houses, designate, control and regulate market places, and to regulate the vending of fresh meats, poultry, fish and other things, no doubt can exist of the power of the City to establish market-houses, and to require fresh meats to be sold there, and also to forbid their sale at other places. Such a power is most necessary for the protection of the health of a city, and has often been recognized under charters not so clearly conferring it as does the charter of the City of Galveston. Buffalo v. Webster, 10 Wend. 100; Bush v. Seabury, 8 Johns. 418; Winnsboro v. Smart, 11 Rich. L. 552; Bowling Green v. Carson, 10 Bush, 65: New Orleans v. Stafford, 27 La. Ann. 417; St. Louis v. Weber, 44 Mo. 549; Wartman v. Philadelphia, 33 Pa. 209; Ash v.

expended money in preparing his private market place for the conduct of his business, he did so with full knowledge that the City might at any time forbid the business to be there conducted. The City has neither devested him of a right nor deprived him of his property, nor are the ordinances complained of unlawful because in restraint of trade. He is not denied the right to sell meats, but is denied the right to sell at a particular place. This is but that regulation of his 11ght which the charter of the City authorized it to make, aud it must be presumed that the city council in its action was prompted solely by a desire to promote the public welfare.

There is no error in the judgment, and it will be affirmed.

v. Boothbay, 9 Mass. 414; Hicks v. Cochran, 4 Edw. Ch. 110.

The declarations and acts of parties are sufficient to prove their marriage. White v. Lowe, 1 Redf. 377.

NOTE.-Marriage; sufficient proof of. Marriage may be shown by cohabitation and repute during the life of the persons whose marital relations are in dispute, or during the life of one of them. It may be proved in this manner in an action brought by husband and wife jointly. Road- The facts that parties have publicly acknowling F. Ins. & T. Co's. App. 4 Cent. Rep. 678, 113 Pa. edged each other as husband and wife (Kansas 204; Crozier v. Gano, 1 Bibb, 257; Hammick v. Bron- Pac. R. Co. v. Miller, 2 Colo. 442, 461; Barnum son, 5 Day, 290; Boatman v. Curry, 25 Mo. 433. v. Barnum, 42 Md. 21, 296; Chamberlain v. So in actions against husband and wife. See Chamberlain, 71 N. Y. 423, 4 7; Re Taylor, 9 Paige, Pettingill v. McGregor, 12 N. H. 179; Newburyport 611, 617; Jones v. Reddick, 79 N. C. 290, 292); have 7 L. R. A.

party.

8. A marriage between a man and his housekeeper was held to be established. although they never had any marriage ceremony performed, and illicit intercourse began between them within one week after she came into his house without any promise of marriage, and for several years thereafter and until their removal to another place she was not regarded in the community as his wife, where several children were born to them, and after their removal she was treated by him in all respects as his wife and so introduced by him to the people of the community, and so regarded and treated by ali their acquaintances in the limited circle in which they

moved.

(Works, J., dissents.)

(January 2, 1890.)

In divorce suits, if marriage be not admitted, it must be proved.

Stewart, Mar. and Div. § 354; Bishop, Mar. and Div. 262; Brinkley v. Brinkley, 50 N. Y. 184, 193; Collins v. Collins, 80 N. Y. 1, 5; Emerson v. Shaw, 56 N. H. 420.

While cohabitation and matrimonial reputation are facts from which a prior marriage may sometimes be presumed, both must concur, to be even prima facie evidence of marriage. Neither is, alone, evidence of marriage.

1 Bishop, Mar. and Div. § 438; 1 Greenl. Ev. 107, and cases cited; Cargile v. Wood, 63 Mo. 501; Foster v. Hawley, 8 Hun, 68; Smyth's Estate (Pa.) 1 Leg. Gaz. Rep. 210; Guardians of the Poor v. Nathans, 2 Brewst. 149, 3 Pa. L. J. Rep. (Clark) 139; Becking's App. 2 Brewst. 202, 1 Phill. Ev. 234, 285; Hervey v. Hervey, 2 W. Bl. 877; Birt v. Barlow, 1 Doug. 171, 174; Read v. Passer, 1 Esp. 213; Leader v. Barry, 1 Esp. 353; Doe v. Fleming, 4 Bing. 266; Smith v. Huson, 1 Phillim. 294; Hammick v. Bronson, 5 Day, 290, 293; Rose v. Clark, 8 Paige, 574; Ford v. Ford, 4 Ala. 142; Jenkins v. Bisbee, 1 Edw. Ch. 377; Whitehead v. Cinch, 130, Com. v. Stump, 53 Pa. 132. 2 Hayw. (N. C.) 3; Kuhl v. Knauer, 7 B. Mon.

To raise the presumption of marriage from cohabitation and reputation, the reputation must not be divided and the cohabitation must be matrimonial in its inception.

Clayton v. Wardel', 4 N. Y. 230, 235; Barnum v. Barnum, 42 Md. 251; Cunningham v. Cunningham, 2 Dow, P. C. 482; 1 Fraser, Dom. Rel. 207; Jones v. Hunter, 2 La. Ann.

APPEAL by defendant from a judgment of 254; Hamilton Hamilton, 1 Bell, App. Cas.

the Superior Court for the City and County of San Francisco in favor of plaintiff, and from an order denying a motion for a new trial in an action for a divorce. Affirmed.

The facts are fully stated in the opinion. Messrs. Jarboe. Harrison & Goodfellow, with Mr. George E. Nourse, for appellant:

736, 9 Clark & F. 327.

Evidence of cohabitation and reputation should be resorted to, to prove a prior actual contract of marriage; only when, by lapse of time, or death of the parties, or other suficient reason, it has become impossible to obtain direct proof of such actual marriage.

Clayton v. Wardell, 4 N. Y. 23), 240; Bishop,

606: Chamberlain v. Chamberlain, supra), on the presumption that such cohabitation was lawful. Cargile v. Wood, 63 Mo. 501, 513; Case v. Case, 17 Cal. 598, 600.

assumed marriage rights, duties and obligations | the celebration; still, if the parties have cohabited, (Com. v. Hurley, 14 Gray, 411, 412); have been gen- such evidence may be, in certain cases, deemed erally (Boone v. Purnell, 28 Md. 607, 627; Cunning-relevant (George v. Thomas, 10 U. C. Q. B. 604, ham v. Cunningham, 2 Dow, P. C. 482, 511; YardJey's Estate, 75 Pa. 207, 212; Badger v. Badger 88 N. Y. 546) reputed in the place of their residence to be husband and wife (The Breadalbane Case, L. R. 1 H. L. Sc. 182, 189, 193; Holmes v. Holmes, 1 Abb. (U. S. 525: Green v. State, 59 Ala. 68, 70; Budington v. Munson. 33 Conn. 481, 487; Bowers v. Van Winkle, 41 Ind. 432, 435; Miller v. White, 80 II. 580, 585; Proctor v. Bigelow, 38 Mich. 282, 283; Redgrave v. Redgrave, 28 Md. 93, 97; Henderson v. Cargill, 31 Miss. 367, 408, 409. Richard v. Brehm, 73 Pa. 140, 144), -are relevant to prove a contract of marriage between them (De Thoren v. Atty-Gen. L. R. 1 App. Cas, 686, 604; Campbell v. Campbell, L. R. 1 H. L. Sc. 182, 200; Langtry v. State, 30 Ala. 536. 537. See State v. Wilson, 22 Iowa, 364, 365; Richard v. Brehm, supra); and consequently, in cases where no celcbration is necessary, are sufficient to prove a valid marriage. Langtry v. State and State v. Wilson, | supra: Com. v. Jackson. 11 Bush, 679, 686; Blagini v. Blasini, 30 La. Ann. 1388, 1397: Cayford's Case, 7 Me. 57, 59: Henderson v. Cargill, 31 Miss. 367; Davis v. Davis, 1 Abb. N. C. 140, 148; Forney v. Hallacher. 8 Serg. & R. 159, 161; State v. Hilton, 3 Rich. L. 434, 435.

Cohabitation and repute may thus be direct evidence of a valid marriage (Guardians of Poor v. Nathans, 2 Brewst. 149, 153; Donnelly v. Donnelly, 8 B. Mon. 113, 117), or indirect (The Breadalbane Case, L. R. 1 H. L. Sc. 182, 189, 193; Cunningham v. Cunningham, 2 Dow, P. C. 482, 511: Breakey v. Breakey, 2 U. C. Q. B. 349; Holmes v. Holmes, 1 Abb. (U. 8.) 525; Jewell v. Jewell, 42 U. S. 1 How. 219 (11 L. ed. 108); Blodget v. Thornton, 3 Cranch, C. C. 176; Green v. State, 59 Ala. 68, 70; Arthur v. Broadnax, 3 Ala. 557, 559; Case v. Case, 17 Cal. 598, 600; Budington v. Munson, 33 Conn. 481, 487; Kansas Pac. R. Co. v. Miller, 2 Colo. 442, 461: Burns v. Barns, 13 Fla 369, 380; Lowry v. Coster, 91 I. 182, 184; Miller v. White, 80 111. 580; Harman v. Harman, 16 Ill. 85: Bowers v. Van Winkle, 41 Ind. 432, 435; Nossaman v. Nossaman, 4 Ind. 648; Blanchard v. Lambert, 43 Iowa, 228, 230; State v. Wilson, 22 Iowa, 364. 365; Sneed v. Ewing, 5 J. J. Marsh. 460, 491; Donnelly v. Donnelly, supra: Holmes v. Holmes, 6 La. 463; Blasini v. Blasini, 30 La. Ann. 1388, 1397; Taylor But in cases where a celebration is necessary, v. Robinson, 29 Me. 323, 328; Damon's Case, 6 Me. evidence of a contract only is not relevant to prove 148; Barnum v. Barnum, 42 Md. 251, 296; Redgrav●

and the fact of their mutual ignorance of disabilities to contract forbids any presumption that they made a new contract. Rice v. Randlett, 2 New Eng. Rep. 406, 141 Mass. 385.

Cohabitation and repute do not constitute marriage; they are only evidence tending to raise a presumption of marriage. Cartwright v. McGown, 10 West. Rep. 589, 121 III. 388; Waddingham v. Waddingham, 4 West. Rep. 834, 21 Mo. App. 609.

Sexual intercourse which the parties know to be contrary to law cannot form even an element of marriage. Cartwright v. McGown, supra.

Without proof of subsequent actual marriage, it will not be presumed, from continued cohabitation and reputation, that a relation illicit in the beginning has been changed to that of husband and wife. Reading F. Ins. & T. Co's App. 4 Cent. Rep. 678, 113 Pa. 204; Harbeck v. Harbeck, 3 Cent. Rep. 430, 102 N. Y. 714.

The reputation of a man as unmarried, at a hotel where he boards, and among people who know nothing of the fact of his cohabitation with a woman at another place, whom he holds out as his wife, does not detract from the effect of such cohabitation and acknowledgment of the marriage. Gall v. Gall, 114 N. Y. 109.

In civil suits generally presumptive evidence of marriage is prima facie sufficient; but in suits for criminal conversation, adultery, polygamy, etc., a more rigid rule is required. Green v. State, 21 Fla. 403; Waddingham v. Waddingham, supra.