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261; City of Chicago v. Rumbf, 46 Il. 20; Milhau v. Sharp, 27 N. Y. 611; Davis v. The Mayor, etc. of New York, 14 N. Y. 506.

This conclusion is but the logical result of the rule, now so well established, That municipal corporations can exercise only such powers as are expressly granted in their cbarter, or such as may be necessary and proper to carry such express powers into effect, including such as are indispensably necessary to the declared objects and governmental purposes for which such corporations are created. And any reasonable doubt as to the existence of a power claimed to be conferred by the charter will be resolved by the courts against the corporation and in favor of the public. City of Eufaula v. McHab, 67 Ala. 589; 1 Dillon on Mun. Corp. (3rd Ed.) $ 89; Logan v. Pyne, 23 Amer. Rep. 261, supra.

The only remaining source from which it is or can be claimed that this exclusive right can be derived is from the general law of the State having reference to the incorporation of street railway companies. The appellee corporation, the Birmingham Street Railway Company was organized under this law, as found embraced in sections 1917 to 1929 of the present Code (1876). It can have no other rights therefore than such as are conferred by or authorized to be contracted for under tbis statute. The section relied on by the appellee's counsel is section 1921 of the Code, which reads as follows:

“Such corporation shall have power to construct, maintain and use a street railroad upon the streets and upon the line and between the termini named in the certificate, upon such terms and in such manner as may be authorized by an ordinance or other lawful act of the proper corporate authorities of the city or town in which it is proposed to build and use the street railroad. And such railroad company may contract with the city or town therefor, and the contract may be altered when both parties agree to the change." Code of 1876, $ 1921.

The City of Birmingham, as we have shown, has no distinct power in its charter, express or implied, to grant this exclusive franchise. Is there anything in this section of the Code to authorize it? Conceding that the city is invested with authority to contract with the company for the construction and running of a street railway, as a necessary correlative of the company's power to contract with the city, does this, by necessary implication, confer the power to contract for a monopoly of privilege and one in perpetuity? We are forced to the conviction that it does not. The inquiry, in fact, is answered by one clearly settled principle of law, which is now thoroughly imbedded in our American jurisprudence, and is deemed to be of vast importance in the economy of our system of free government, especially in view of what may now be considered as the baleful result of the celebrated Dartmouth College

case, in the perpetuity of special privileges conferred by franchises from governments. This principle is that the charter of corporations are to be strictly construed against the corporators, and that no franchise which is granted by the State is ever construed to be exclusive, whether it be in the nature of a contract or not, unless it be so declared in clear terms, or be necessarily implied; or, as expressed by a learned author, “unless the element of exclusiveness appears in the grant itself," and by another, unless the "terms of the grant render such construction imperative.” 1 High on Injunc. (2nd Ed.) $ 902; Cooley's Const. Lim. (5th Ed.) 490 *396). There has been no departure in this country from this doctrine since the decision of the Charles River Bridge case by the United States Supreme Court, as far back as

1837. Charles River Bridge v. Warren Bridge, 11 Pet. 490. It was there said by ChiefJustice Taney that “in charters of this description, no rights are taken away from the public, or given to the corporation, beyond those which the words of the charter by their natural and proper constitution purport to convey." Upon precisely the same principle it bas been held, and must logically follow, that no municipal corporation, which is but the creature of the State, can make a grant of exclusive rights, whether by ordinance in the nature of a contract, or otherwise, unless the power to do so is expressly granted by the lawmaking power, or unless it be so far necessary to the proper execution of other powers expressly granted as to make its existence free from doubt. The State v. The Cincinnati Gas Light Co. 18 Ohio St. 263. As said by Mr. Dillon, “such a corporation has not an exclusive power over the subject, unless, by express words, or necessary inference, it be plainly given to it by the legislature.” 1 Dillon on Mun. Corp. (3d ed.), § 114. Judge Cooley adopts the view that a municipal corporation cannot, “without explicit legislative consent," permit the construction of a street railway in its streets, and confer on the projectors "privileges exclusive in their character and designed to be perpetual in duration." Cooley's Const. Lim. (5th ed.), 252 (*207). No reason is perceived why this principle is not entirely sound and in strict conformity to every rule pertaining to the true functions of municipal corporations. Whatever power they may have over the public streets within their limits is in the nature ofa trust. This they can exercise only for the benefit of the public, and not of particular individuals or corporations. They have no implied power to barter away today, as a monopoly, to one that which the public necessities of a growing city may require to be reserved in order that they may be exercised for the public benefit on to-morrow. And such seems to be the sounder and better doctrine, although some adjudged cases may be found which seem to sustain a different view. 2 Dillon Mun. Corp. (3d ed.) 88 715-716.

We nowhere find where the city authorities of Birmingham had any power to invest the appellee corporation with the exclusive right which it here claimed.

We might stop here with this case, without extending this opinion further. But the principle involved is of such great public importance as to justify, if not require, a consideration of the constitutional objection which is urged to the existence of this right. The argument is further made that the General Assembly is prohibited by the organic law from making such an irrevocable grant, and, therefore, under no circumstances,can it be done by a municipal corporation, which is the mere agency of the State exercising only derivative powers. The power of the agent, it is said, cannot exceed that of the principal.

Art. I, § 23, of the present Constitution of Alabama, provides that no law shall be passed by the General Assembly “making any irrevocable grants of special privilege or immunities.”

Section 3, of article 14, reads as follows: “All existing charters or grants of special or exclusive privileges under which a bona fide organization shall not have taken place, and business been commenced in good faith at the time of the ratification of this Constitution, shall thereafter have no validity."

These provisions occur for the first time in the Constitution of 1875, and have not before been the subject of construction by this court.

What, it may be asked, is the nature of these special or exclusive privileges which are thus prohibited to be granted by the legislature? It seems plain from the very terms used, that the evil intended to be specially prevented was the granting of exclusive privileges in the nature of a monopoly by the legislative creation of corporate franchises. Monopolies were void at the common law, are not commonly conferred by legislative grant, and need no special prohibition in the organic law of a free republic. They may now be regarded as relics of governmental folly, rendered odious by royal prerogative in the most extravagant periods of the European monarchies. In the strict sense a monopoly is an exclusive right granted to one person, or a class of persons of something which was before of common right. A franchise is a special privilege conferred by the State or government upon individnals, and which does not belong to citizens of the country by common right. It has been a common legislative practice to make grants of this kind, and they have led to much and protracted litigation in all of the American courts. Examples of this kind are found in numerous cases where the exclusive privilege has been conferred on favored individuals and corporations to manufacture and sell gas in a city; or to supply the inhabitants with water; or to construct a bridge or run a ferry across a river between two given points, free from competition within certain limits; or to construct a canal, turn-pike, or railroad between certain

designated termini; or to construct and rent a market-house in a city; or to own and control the only premises which can be lawfully used for the slaughter of livestock within municipal limits, or, in fine, as has been done many times in this and other States, to confer on favored corporations an irrevocable exemption from the common burdens of equal taxation, either by exacting from them an inconsiderable bonus in commutation of all future taxation, or else exacting from them no taxes at all. The following cases illustrate monopolies of this kind, so often conferred by legislative franchises: New Orleans Gas Co. v. Louisiana Light Co., 115 U. S., 650; New Orleans Water Works Co. v. Rivers, I b., 674; The Binghampton Bridge, 3 Wall., 51; City of Chicago v. Rumpff, 45 Il., 90; Slaughterhouse Cases, 16 Wall., 36; Gale v. Kalamazoo, 23 Mich., 344, S. C. 9 Amer. Rep., 80; Atlantic City Water Works V. Atlantic, 39 N. J. Eq., S. C., 10 Amer. & Eng. Corp. Cases, 59; Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn., 19; Mobile, Etc. R. R. Co. v. Kennerly, 74 Ala., 566; Doughdrill v. Alabama Life Ins. Co., 31 Ala.. 91; Home of the Friendless v. House, 3 Wall., 430.

The very fact that the Legislature could, according to the better view, make irrrevocable grants of this nature was the very reason, no doubt, why the organic law was made so as to prohibit such grants in the future. In the struggling infancy of States and communities, the temptation has been very great to offer them as a reward to the investment of capital. The injustice and inequality of their operation have only been illustrated in the light of the said increase of our population, the steady growth of our wealth, and the wonderful discoveries of modern science. It now more fully becomes manifest that they prove iron bands to fetter the growth of public industry, enterprise and commerce. Free competition in all departments of commercial traffic is justly deemed to be the life of a people's prosperity. The policy of the law, as now declared by our Constitution, is as clear in the condemnation of the grant of irrevocable exclusive privileges conferred by franchise, as that of the common law was in the reprobation of pure monopolies which were always deemed odious, not only as being in contravention of common right, but as founded in the destruction of trade by the extinguishment of a free and healthy competition. The case of Monopolies, 11 Rep., 84.

The exclusive right of the appellee to the privilege claimed, in our opinion, can not be sustained. The General Assembly would itself have no power under the Constitution to make such a grant. A fortiori a mere municipality would have no such power.

Nor can we find, upon any proper principle of construction, that it has anywhere been attempted to confer such a power upon the municipal authorities of Birmingham. They had as much right, therefore, in the exercise of their lawful governmental agency, to give their consent to the appellants to construct and maintain a street railway in the streets and avenues of the city, as they had to grant the same right to the appellee corporation.

These views result in the reversal of the Chancellor's decree. He erred in not sustaining the demurrer, and in refusing to dismiss the bill for want of equity. The injunction should have also been dissolved. We will accordingly enter a judgment here, ordering the dissolution of the injunction, and will reverse and remand the cause, so that the complainants may have an opportunity to amend the bill, if practicable, so as to give it equity. We will not say this is impossible.

Reversed and remanded.

exclusive, it will not be so understood.2 Consequently, if the rights and privileges granted to a company are not made exclusive by the terms of the grant, the Legislature is not debarred from granting a similar franchise to a rival corporation, although the effect of the latter grant may be to injure the business and diminish the profits of the first company,3 For example, the grant to a corporation of the right to erect a toll-bridge across a river, without any restriction as to the right of the Legislature to grant a similar privilege to others, does not deprive a future Legislature of the power to authorize the erection of another toll-bridge across the same river, so near to the first as to divert a part of the travel which would have crossed the river on the first bridge, if the last had not been erected.4

Exemption frow Taxation, is the most frequent example of the matter under consideration-the grant to a corporation of special privileges or immunities. It was at one time seriously doubted whether the power of taxation, being inherent in the people under a republican government, and an essential attribute of sovereignty, was not so far inalienable that the Legis. lature could not make a valid contract whereby it should be surrendered, without express authority for that purpose, either in the Constitution itself or in some other way directly from the people.5 But long line of cases in the United States Supreme Court, and elsewhere, has definitely established the proposition that the Legislature of a ştate may, upon consideration, relinquish and surrender the right of taxing the property or franchises of a corporation, either absolutely or beyond a specified amount, and either for a limited period or in perpetuity; and that this agreement will be binding upon future Legislatures and protected from invasion by the Federal Constitution. Yet here, also, the strict rule of construction is to be adopted, and the surrender of the right of taxation will never be presumed; nor, indeed, will it be held to have been relinquished, in any particular case, unless the deliberate intention of the Legislature so to do is clearly manifested in the grant itself. And it is also necessary that there should be a consideration for the exemption. For if the grant is merely spontaneous, and no service or duty or obligation or other remunerative consideration is imposed upon the grantee, it belongs to that class of laws denominated privilegia favorbilia, and is not properly a contract but

NOTE ON THE CONSTITUTIONALITY OF GRANTS OF EXCLUSIVE PRIVILEGES.-Although the power of the Legislature of a State to invest the corporation which it creates with exclusive and irrevocable privileges or immunities, when not forbidden by the organic law, is too well established upon the authorities to be open to question at this day, yet the principal case is practically the first to define with exactness the limits of municipal power in this respect. Its position, however, is but the natural resultant of the settled principles that govern the law of municipal corporations and the construction of their powers. The two premises (1) That they can exercise only such powers as are expressly granted in their charter, or such as may be necessary and proper to carry the grant into effect; and (2) That the same rule of construction which denies the alienation of any portion of the sovereign power, unless upon a manifest intention and by explicit terms, is to be applied in considering the organic law of a municipality-lead us inevitably to the conclusion that it is not within the province of the City Council to fetter the hands of its successor by the grant of an exclusive and irrepealable franchise, unless the authority to do so specifically proceeds from the law-making power of the State. In giving the support of a well reasoned judicial opinion to this doctrine, the principal case makes a considerable addition to our fund of constitutional learning.

Exclusive Privileges.—The Constitution of Alabama is not alone in forbidding the grant of monopolies. A similar provisio is found in the Constitutions of Arkansas, California, Colorado, Illinois, Iowa, Maryland, Missouri, Nebraska, Pennsylvania and Tennessee. But where no such inhibition exists, it is well settled, as we have said, that the State may grant to a corporation an exclusive and irrevocable franchise to erect and maintain public works, or to pursue its avocations, whatever they may be, and that such franchise constitutes a contract which is protected from impairment by the Supreme law of the land;1 but such a grant is to be construed most strictly the grantee and in favor of the State; nothing passes by implication, especially where it would be in derogation of the sovereign power; and if the grant doeg not, in clear and explicit language, make the franchise


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3 Turnpike Co. v. Railroad Co., 10 Gill & J. 392; Tucka. hoe Canal Co. v. Tuckahoe R. R., 11 Leigh, 42; Thompson v. Railroad, 3 Sandf. Ch. 679; Shorter v. Smith, 9 Ga., 517; Matter of Hamilton Ave., 14 Barb. 405; Collins v. Sherman, 31 Miss. 679.

4 Mohawk Bridge Co. v. Railroad, 6 Paige Ch. 554.

5 Brewster v. Hough, 10 N. H. 138, 143; Skelly v. Jefferson Bank, 9 Ohio St. 606; Mott v. Railroad, 30 Pa. St. 9.

6 State of New Jersey v. Wilson, 7 Cranch, 164; Gordon V. Appeal Tax Court, 3 How. 133; Piqua Branch Bank v. Knoop, 16 How. 369; Home of the Friendless v. Rouse, 8 Wall. 430; Humphrey v. Pegnes, 16 Wall. 244; Delaware R. R. Tax, 18 Wall. 206; Erie R. R. V. Pennsylvania, 2 Wall. 492; St. Anna's Asylum v. New Orleans, 105 U.S. 362; Given v. Wright, 117 U. S. 648; Comm. v. Pottsville Water Co., 94 Pa. St. 516; Memphis &c. R. R. v. Berry, 41 Ark. 436.

7 Delaware Railroad Tax, 18 Wall. 206; Wilmington &c. R. R. v. Reid, 13 Wall. 264; Providence Bank v. Billings, 4 Pet. 514; Jones Mfg. Co. v. Comm., 69 Pa. St. 137; State v. Newark, 26 N. J. L. 519; People v. Roper, 35 N. Y. 629.

1 Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35; Bridge Co. v. Hoboken Land Co., 13 N. J. Eq. 81; The Binghamton Bridge, 3 Wall. 51; Bridge Proprietors v. Hoboken Land Co., 1 Wall. 116; Chenango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. 87.

citizen; and when compensation is provided for its infringement, its obligation is not impaired, but recog. nized.18 “ Thus a Legislature may authorize a bridge to be erected so as to occupy and destroy a ferry, or a railroad company or a city to appropriate the bridge property of a company, and thereby destroy its fran. chise; or even may authorize one railroad company to destroy the franchise of another in constructing its own road, in the exercise of this power of eminent domain, provided compensation is at the same time secured to the party thus deprived of its prior franchise. 16 And Judge Cooley says, that where the grant was exclusive and guaranteed against impairment, " the exclusiveness of the grant, and the agreement against interference with it, if valid, constitute elements in its value to be taken into account in assessing compensation; but appropriating the franchise in such a case no more violates the obligation of the contract than does the appropriation of land which the State has granted under an express or implied agreeinent for quiet enjoyment by the grantee, but which never. theless may be taken when the public need requires. 13


may be revoked at the will of the Legislature. If the charter of a corporation specifies a certain sum to be annually paid into the State treasury and declares that the same "shall be in lieu of all other taxes," this constitutes a contract not to impose any tax beyond the amount named.9 But if the charter requires the payment of an annual duty, without stating whether or not it is to be in lieu of all taxation, the Legislature is not estopped to impose other and further taxes.10

Police Power of the Staie.-But in considering grants of exclusive privileges, and the limitations upon them, it is important to remember that the police power of the State is never parted with. That is to say, it is not within the power of any Legislature, antecedently of constitutional prohibition, to grant rights of so exclusive a character as to place them beyond the reach of subsequent statutes enacted with reference to the public police. This power never can be sold or bargained away; it lies back of all grants; all rights and franchises are taken subject to it. The established doctrine is thus stated by Mr. Justice Miller: “ While we are not prepared to say that the Legislature can make valid contracts on no subject embraced in the largest definition of the police power, we think that in regard to two subjects so embraced, it can not by any contract, limit the exercisc of these powers to the prejudice of the public welfare. These are the public health and public morals. The preservation of these is so necessary to the best interests of social organization, that a wise policy forbids the legislative body to divest itself of the power to enact laws for the preservation of health and the repression of crime.”li To the same effect:12

But this power is restricted to the two subjects mentioned, and can not extend to a mere matter of public convenience.13 As an example of the exercise of this process: a law which prohibits manufacturers and others, from selling, or keeping for sale within the State, intoxicating liquors which may have been manufactured or bought by them previous to its passage, is not, because it lessens the value of liquors owned in the State at the time of its passage, a law impairing the obligation of contracts; since the right to sell, or keep for sale, intoxicating liquors, and to prescribe the places and mode of their sale, is within the police power of the State, subject to which such property is holden.14

Eminent Domain.-It is also to be noted that the power of eminent domain is never relinquished. The franchise itself is only a species of property, and not more sacred than any other kind, and hence may be taken or destroyed by the State in the exercise of its sovereign powers, as well as any other property of the

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8 Christ Church v. Philadelphia Co., 24 How. 300; S. C. 24 Pa. St. 229; Washington University v. Rowse, 42 Mo. 308; People v. Comm’rs of Taxes, 47 N. Y. 501.

9 Farrington v. Tennessee, 95 U. S. 679.

10 Delaware Railroad Tax, 18 Wall. 206; Union Passenger R. R. v. Philadelphia, 101 U. S. 528.

11 Butchers' Union Co. v. Crescent City Co., 111 U. S. 746.

12 New Orleans Gas-Light Co. v. Louisiana Light and Heat Co., 115 U. 8. 650; Boyd v. Alabama, 94 U. S. 645; Stone v. Mississippi, 101 U. 8. 814; Lake Hill v. Cemetery Co., 70 III. 191; Pittsburg &c R. R. V. Southwest R. R. 77 Pa. St. 173; Thorpe v. Railroad, 27 Vt. 149.

13 State v. Noyes, 47 Me. 189, 212.

14 State v. Paul, 6 R. T. 185; Cooley, Const. Lim. 583. People v. Hawley, 3 Mich. 330; Reynolds v. Geary, 26 Conn. 179; Gutzweller v. People, 14 n. 142; Rowland v. State, 12 Tex. App. 418; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; Santo v. State, 2 Iowa, 165; Beer Co. Massachusetts, 97 U. S. 25.

15 New Orleans Gas Light Co. v. Louisiana Light and Heat Co., 115 U. S. 650, 673; Richmond &c. R. R. v. Louisa. R. R., 13 How. 71 ; West River Bridge v. Dix, 6 How. 507; In re Citizens Passenger R. R., 2 Pittsburg, 10; Shorter v. Smith, 9 Ga. 517; Benson v. New York, 10 Barb. 223; Backus v. Lebanon, 11 N. H. 19.

16 2 Washburn, Real Prop. p. 295; In re Towanda Bridge, 91 Pa. St. 216; New Orleans &c. R. R. v. Southern Tel. Co., 53 Ala. 211; Piscataqua Bridge v. N. H. Bridge, 7 N. II. 35.

17 Const. Lim. 281.

* S. C. 6 Atlantic Reporter, 60.

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Riegel, deceased, and confirming absolutely said appraisement.

The facts of the case are fully set forth in the opinion of the supreme court.

MERCUR, C. J., delivered the opinion of the court:

This is an appeal from a decree setting off $300 worth of property to the alleged widow of Jacob R. Riegel, deceased. Whether the appellee was ever his lawful wife is the question in the case. It is clearly proved that they lived and cohabited together for several years. She gave birth to a child, which he claimed and recognized to be his. There is evidence that at times be declared she was his wife, and introduced her as such. On one occasion when he conveyed some real estate, she joined in the deed as his wife. At other times, when asked whether he was married to her, he would give evasive answers, neither admitting nor denying that he was or was not. At the time the child was born, Rebecca Forney swears they were not married. That witness asked each of them about that time. “He said he was not married; that he would take her for a housekeeper." "He said he would never marry her." "She said she was long ago married.” At other times the appellee spoke of him as her husband. Mrs. Dr. Rhoads, however, testifies, after Riegel and the appellee had lived together for some time, that the latter “complained to her that he would not marry her." "She blamed his sister for being opposed to his marrying her.” “She said whenever she would ask him to marry her, he would say, 'I cannot; my sisters don't want you in the family.' Witness further testified the appelle said "she told Jacob Riegel to get himself another housekeeper if he would not marry her.”

The whole evidence discloses quite a difference of opinion in the minds of their neighbors as to whether they were married. It was so uncertain that there appears to have been much talk questioning it while they were living together. The evidence does not show any actual marriage, nor any well-recognized general repntation that they were married. Soon after the death of Riegel, and before his funeral, Ressler

he at the house, and said to her, “You know there are rumors on the steets that you and Jacob Riegel were not married;" and she answered, “If we ain't married, I was true to him all the time we lived together.” She was afterwards called, and testified in her own behalf. She denied generally that she had such a conversation with Mrs. Rhoads, and swore that she did not tell her that she said to Jacob, “If you don't want to marry me, then get yourself another housekeeper.” She did not specifically deny other portions of Mrs. Rhoads' evidence, equally as strong and expressive, that no marriage existed; nor did she deny having used the language testified to by Ressler. She did not swear that she was ever married to Riegel, or that there was any agreement between them under which they lived together as husband

and wife. On the argument of the case in the court below it appears, by the opinion of the court, that the appellant asked why she was not examined with reference to her marriage with the decedent. The answer was that she called and testified only in rebuttal. The learned judge says: “The question why she was not called and did not testify in chief still remains unanswered, and I submit that I am not able to answer it." We think the easy and correct solution of this question is to infer she was not called in chief to testify to an alleged marriage with Riegel, by reason ofher known inability to testify to any fact sufficient to prove amarriage.

Undoubtedly they lived together for a long time under circumstances to prove intimate sexual relations; but cohabitation and reputation alone are not marriage. They are merely circumstances from which a marriage may sometimes be presumed. It is a presumption, however, that may be rebutted by other facts and circumstances. Hunt's Appeal, 86 Pa. St. 294. When the relation between a man and a woman living together is illicit in its commencement, it is presumed to so continue until a changed relation is proved. Without proof of subsequent actual marriage, it will not be presumed from continued cohabitation and reputation of a relation between them wbich was of illicit origin. Id. Here the evidence establishes with sufficient certainty that, in its inception, the relation between the appellee and Riegel was illicit, and there is no sufficient evidence to create a legal presumption of any subsequent marriage. In arriving at this conclusion we do not doubt the correctness of the law, as declared in Richard v. Brehm, 73 Pa. St. 140, and numerous kindred cases. Many times marriage may be proved by acts of recognition, continued matrimonial cohabitation, and general reputation.

Here, however, the evidence falls far short of satisfying the mind that there was ever any actual agreement to form the relation of husband and wife.

There is another feature in the case which, if proved, would establish that she is the wife of another man who is still living. The appellant gave evidence tending to prove that, before the appellee formed any relations with Riegel, she lived and cohabited with one Jeremiah Ribble, and was reputed to be his wife, and he is still living. Some eight witnesses testify that Ribble and she were living together, keeping house, and reputed to be husband and wife. Four of these witnesses were neighbors, living on the same street with them. One was a cousin of the appellee, and three of them were brothers of Ribble. Two of the brothers testify that he told them he and she were married, and were living together or keeping house. The evidence of cohabitation and reputed marriage with Ribble, during the time she lived with him is of the same general character as that given to prove the subsequent relation between her and Riegel; but that time was of



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