
    The Towet Council of Winnsboro vs. Selden M. Smart.
    Corporation— Ordinance — Markets— Trade.
    
    Tko Town Council of Winnsboro have the power to pass an Ordinance prohibiting the sale of butcher’s meat within the corporate limits, except at the public market.
    Laws regulating markets are not in restraint, but in regulation of trade— they are not in violation of the ordinary rights of the citizen.
    BEFO EE WAEDLAW, J., AT FAIRFIELD, FALL TERM, 1858.
    An ordinanoe of the Town Council of Winnsboro, provides, “ That no person or persons shall sell any butcher’s meat within the corporate limits of the Town of Winnsboro, until after the hour of nine o’clock in the morning, excepting in the town market. And every person or persons who shall violate this ordinance shall be subject to a fine of ten dollars for each and every offence.”
    The defendant was fined by the Intend ant under this ordinance, ten dollars, and he appealed to the Circuit Court. His Honor, the presiding Judge, affirmed the judgment of the Intendant, and the defendant appealed to this Court, on the grounds:—
    1. Because the ordinance is contrary to the general laws of this Staté, and is not authorized by the charter of said town.
    2. Because the appellant sold the meat inside of his own blacksmith shop, and not in the streets or public square of the town; and it -is not pretended that there was any nuisance created by his so doing — and to deprive him of this right, under the circumstances, would be to establish a monopoly, and. punisb bim for tbe violation of an ordinance wbicb is itself in violation of law.
    
      Rutland, for appellant,
    cited 11 Stat. 505, § 4; Dunham vs. Rochester, 5 Cow., 462; New York vs. Ordeman, 12 Johns. R., 122.
    
      Rion, contra.
    The Act of Incorporation, (11., Stat. 506, § 4,) gives the Town Council full power to make ordinances respecting the “ markets,” and for preserving the “ health, order and good government” of the town. The subject-matters of an ordinance respecting the markets, are the place, the time, the kind and quality of articles to be'sold, and the sellers. Markets are from their very nature sanatory instituí tions; and are ex necessitate nuisances to those who reside in the neighborhood. Hence the ample powers always conferred on municipal corporations respecting them. . Markets are institutions of great antiquity; and, although a species of monopoly, have always been held in law to be regulatory of, and not in restraint of trade. Mosley vs. Walker, 7 Barn. & Cress., 40. Mayor and Aldermen of Macclesfield vs. Pedley, 4 Barn. & Adol., 397. In this case the market was a meat market, and butcher shops were not allowed out of .the market place. Both cases rest on custom: but no custom is good against which a good legal reason can be assigned. — 1 Bl. Com., 77. In our case, the Act of the G-eneral Assembly stands in lieu of custom. A greater exercise of power than in this case sanctioned in Oity Council vs. Benjamin, 2 Strob., 521; City Council vs. Ahrens, 2 Strob., 241; Neisembrittle ads. City Council, 2 McM., 238, The language of the Court in City Council vs. Goldsmith, 2 Sp. 435, very apposite to this case.
   The opinion of the Court was delivered by

Wardlaw, J.

The defendant has mainly urged that the ordinance in question is not witbin tbe power delegated to tbe Council, because it is in restraint of trade, and in violation of tbe ordinary rights of a citizen, and therefore repugnant to tbe laws of tbe State. ' Eor authority be has referred to tbe case of Dunham vs. Rochester, 5 Cow., 462.

Tbe general principle maintained in that case, that a bylaw must appear to be within tbe power granted to a corporation, we freely admit:-the application which was made of tbe principle to tbe charter and ordinance, considered in that case, we will not undertake to examine. Turning to tbe argument of tbe plaintiff, we find that markets with exclusive privileges are of great antiquity and universal prevalence; that they have been deemed useful to both producers and consumers, and moreover serviceable in respect to health and good order: that a distinction is recognized between the restraint of trade and its regulation, and that by tbe Act incorporating Winnsborough (11 Stat., 505, § 4,) plenary power, subject to tbe laws of the State, is given to the Council, concerning markets, health and good order. Tbe eases which have been decided in our own State leave no doubt that tbe Council of Winnsborough bad power to pass the ordinance now in question, and that its expediency was a matter for the sound judgment of the Council, over which no supervision can be exercised by a Court. (See 2 McM., 233; 2 Speer, 435: 4 Strob., 241.)

The motion is dismissed.

. O’Neall, Withers, Whitker, Glover and Mustro, JJ., concurred.

Motion dismissed.  