
    Josiah Nightingale, Petitioner, &c.
    A by-law of a city, providing that no inhabitant of the city or of any town in Vie vicinity thereof, not offering for sale the produce of his own farm, &c. shall, without the permission of the clerk of the market, be suffered to occupy any stand for the purpose of vending commodities, in certain streets which by the by-law are a part of the market, was held to be a salutary police regulation, and not void as making a distinction between the inhabitants of the city and its vicinity, and those of distant towns, nor as being uncertain, nor as being in restraint of trade.
    The Court cannot, upon a writ of certiorari, examine into the merits of a case, and set aside a verdict as being against evidence.
    On August 11, 1830, Caleb Hayward, the clerk of Faneuil Hall market, in the city of Boston, made a complaint to the Police Court, alleging that Nightingale, on that day, with a certain wagon, occupied a stand in South Market street without permission of Hayward, the clerk, &c. and for the purpose of vending in South Market street commodities not being the produce of his own farm or of some farm in his neighbourhood ; that Nightingale then was an inhabitant of the town of Quincy, which town is in the vicinity of Boston, and Nightingale being ordered by Hayward to remove forthwith from the street, did not so remove, but refused, against the peace, &c. and the form of the statute, &c. and the bylaw of the city. Nightingale was convicted in the Police Court, and he appealed to the Municipal Court of’ the city of -d Boston.
    At the trial in the Municipal Court the attorney for the commonwealth read to the jury the 1st and 8th sections of the city ordinance for the regulation of the market, passed November 13, 1826. The first section prescribes, “ that the limits of Faneuil Hall market shall be the lower floor of the building, &c. and the street on each side thereof, called North Market street and South Market street.” The 8th section provides, “ that no inhabitant of the city of Boston, or of any town in the vicinity thereof, not offering for sale the produce of his own farm, or of some farm in his neighbourhood, shall at any season of the year, without the permission of the clerk of Faneuil Hall market, be suffered to occupy any stand with cart, sleigh or otherwise, for the purpose of vending commodities in either of the streets mentioned in the first section of this ordinance ; and every such person, on being so ordered, shall remove from out of said streets.”
    It was testified, that Nightingale took a stand in South Market street on the 11th of August, at sunrise, with a wagon, and continued to occupy the same until 11 o’clock in the forenoon ; that he there sold the carcasses of sheep, which he had bought some months before at Brighton, and of lambs which he had bought the week before at Hingham, and divers other articles the produce of his own farm in Quincy ; that early in the morning, and again two or three hours afterwards, the clerk of the market ordered him to leave the street, (which was within the limits of the market, as defined in the ordinance,) but he refused ; that while he was coming to the city in the morning, he said he meant to try the law ; and that neither the city government, nor the clerk of the market had, established a rule as to what was to be regarded as the vicinity of Boston.
    The counsel for Nightingale insisted that the by-law was void, on the ground that it was partial and did not operate upon all the citizens of the commonwealth equally, and that it made a distinction between the inhabitants of Boston and its vicinity, and the inhabitants of distant towns in the commonwealth ; that it was void from its uncertainty, in not declaring what towns were to be comprehended within 1 the vicinity ” of Boston ; that it was defective, inasmuch as it left it to the discretion of the clerk of the market to require the removal of persons, whereas the by-law should have been-so expressed as that every citizen might determine for himself where to stand ; and that according to the testimony, Nightingale did not violate the by-law, inasmuch as a large portion, perhaps half in value, of the articles in his wagon were the produce of his own farm.
    
      March 30th.
    
    The judge (Thacker) instructed' the jury, that the court was competent to try the case, notwithstanding it was to enforce a by-law of the city, to the breach of which a pecuniary penalty was annexed ; that the ordinance was a good and wholesome regulation, and binding on the citizens and on all persons who came to the market with their carts and wagons to offer produce for sale ; that it was not a restraint of trade ; that it belonged to the jury to settle from the evidence, whether the defendant was an inhabitant of a town in the vicinity of Boston) and whether he came to the market, offering for sale the produce of his own farm or of some farm in his neighbourhood ; that it was true he might have had some of the productions of his own farm, and yet if these were but a cover to screen him from the operation of the ordinance, and his intent was to sell produce, not of his own farm nor of any farm in his neighbourhood, the case would be within the mischief against which the ordinance was intended to guard.
    To these instructions the counsel for the defendant excepted.
    The jury having found the defendant guilty, he now petitioned this Court for a writ of certiorari to the Municipal Court.
    
      T. Fuller,
    in support of the application, insisted on the objections made by the petitioner at the trial. As to the bylaw’s being in restraint of trade, he cited Player v. Vere, T. Raym. 288, 324 ; Bac. Abr. By-law, B.
    
    
      J. Pickering, (city solicitor,) contra,
    
    contended that the ordinance was a salutary and valid police regulation. Pierce v. Bartum, Cowp. 269 ; Commonwealth v. Vandine, 6 Pick. 187; Vanderbilt v. Adams, 7 Cowen, 349 ; Coates v. Mayor 
      
      &c. of New York, ibid. 585. As to the uncertainty of the terms, 66 any town in the vicinity of Boston,” he said it was a mixed question of law and fact, at most, but rather a question of fact, what towns are “ in the vicinity.” As to the meaning of vicinity, he referred to Blunt’s Law Dict. voc. Vicinage ; Webster’s Dict. voc. Vicinity; 3 Bl. Com. 359. There are many instances in the law where indefinite phraseology is used, and some officer in the first instance, (as here the clerk of the market,) and ultimately the court and jury, are to determine its application to the particular case ; as in the case of hue and cry, “ the towns near,” and 66 neighbouring vills ” ; 4 Bl. Com. 293, 294 ; in the case of nuisance, “ near a highway ” and “ near dwellinghouses ” ; 1 Russell on Crimes, 429; “ reasonable notice ” ; “ reasonable diligence ” ; “ moderate correction,” in cases of assault and battery ; “ suitable provisions and lodging” ; St. 1786, c. 68, § 3 ; “good order and rule”; § 10; “ unreasonably refuse to lay out, &c. a highway ” ; St. 1786, c. 68, § 2, 3 ; “ place to place that is far off” ; Anc. Chart. &c. 100.
    
      April 1st.
   Wildé J.

delivered the opinion of the Court. The petitioner was prosecuted in the Police Court of the city of Boston for. a violation of the city ordinance for the regulation of the market, passed November 13, 1826, and was tried and convicted of the offence charged; and on an appeal to the Municipal Court, he was again tried and convicted of the same offence in that court. He now petitions for a writ of certiorari to the Municipal Court, suggesting divers errors in the proceedings ; and the general question is, whether for any of the reasons assigned a writ of certiorari ought to issue.

It has been argued by the petitioner’s counsel, that the city ordinance is void, for several reasons.

1. Because it is partial, and does not operate upon all the citizens of the commonwealth equally, but makes a distinction between the citizens of Boston and its vicinity, and the inhabitants of distant towns in the commonwealth. We cannot think that there is any weight in this objection. A regulation of this description could hardly be framed so as to avoid a partial operation arising from local situation and other circumstances. But the partial operation of the ordinance can be no objection to its validity, provided it does not infringe Private rights ; and it is very clear that it does not. The city government had an undoubted right to prohibit the occupation of a stand in the streets by any one, or by any one not having a license or permission for that purpose from the clerk of the market. In the case of Vanderbilt v. Mams, Treasurer of N. Y. Hospital, 7 Cowen, 349, it was decided, that an act authorizing the harbor masters to regulate and station vessels in East and North rivers in New York, and imposing a penalty for disobeying their orders, extends to wharves in the hands of private owners, and is not unconstitutional, but is valid as a police regulation. There is certainly nothing contained in the ordinance in question, which can be pretended to operate as a violation of private rights ; nor does it operate as an improper restraint of trade, but is a wholesome regulation of it, to prevent the market from being unnecessarily thronged and incumbered.

2. But the principal objection to the ordinance is, that it is void for uncertainty. I admit that the term “ vicinity ” is somewhat indefinite, but to a certain extent it is sufficiently explicit. It comprehends, for instance, all adjoining towns, and places in towns not adjoining to a corresponding distance; and we think the term may be considered in a more comprehensive sense, as used in the ordinance, so as to extend the prohibition to all persons who are daily accustomed to bring produce to the market for sale. Whether the petitioner lived within the vicinity of Boston, was a question properly left to the jury under the instructions of the court. The objection would be entitled to more consideration, if the penalty had been indicted for the mere occupation of the stand probibited ; but the penalty was incurred by the petitioner’s refusal to leave the stand he had taken, after being notified so to do by the proper officer. If the petitioner was disposed to try the strength of the ordinance, as it seems he was, he had full knowledge of all the facts, and full notice that he must try tne experiment at his peril.

Another objection to the proceedings is, that there was no sufficient evidence that the petitioner had violated the ordinance. This objection we think is not open to the petitioner on this application. We cannot, on certiorari, examine the merits of a case and set aside a verdict as against evidence. If there is no error in the proceedings, the judgment of the court below would, on' a hearing, be affirmed ; for this cause therefore a certiorari ought not to issue. The instructions to the jury in relation to the evidence were perfectly correct; so that nothing erroneous appears in any of the proceedings.

Petition dismissed. 
      
       See Boston v. Shaw, 1 Metc. 130; Hayden v. Noyes, 5 Conn. R. 391; London v. Crompton, 7 Dowl. & Ryl. 597; Clark v. LeCren, 9 Barn. & Cresw. 52; Austin v. Murray, 16 Pick. 121; Goddard, Petitioner, 16 Pick. 504.
     
      
       See Fayt Petitioner, &c. 15 Pick. 243; Albany, Mayor of, &c. ex parte, 23 Wend. 277.
     