TYSON AND BROTHER - UNITED THEATRE TICKET OFFICES, INCORPORATED, v. BANTON, DISTRICT ATTORNEY, ET AL.
No. 261
SUPREME COURT OF THE UNITED STATES
Argued October 6, 7, 1926. Decided February 28, 1927.
273 U.S. 418
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
“The legislature may pass laws prescribing the qualification of practitioners of medicine in this state, and to punish persons for malpractice, but no preference shall ever be given by law to any schools of medicine.”
The limitation of the provision is obviously directed to the qualifications of those to be admitted to the practice of their profession in the state and has nothing to do with the qualifications of those who are to be allowed to practice in a state hospital or to participate in an educational enterprise conducted by the state. Cf. Germany v. The State, 62 Tex. Cr. Rep. 276; Ex parte Gerino, 143 Cal. 412; Harris v. Thomas (Tex. Civ. App.), 217 S. W. 1068.
The action of the board does not violate rights or immunities guaranteed by either the state or the Federal Constitution.
Judgment affirmed.
1. Sections 167 and 172, c. 590, N. Y. Ls. 1922, the former declaring that the price of or charge for admission to theatres, places of amusement or entertainment, or other places where public exhibitions, games, contests or performances are held, is a matter affected with a public interest, and the latter forbidding the resale of any ticket or other evidence of the right of entry to any theatre, etc., at a price in excess of fifty cents in advance of the price printed on the face of such ticket or other evidence of the right of entry, contravene the Fourteenth Amendment. Pp. 429, 445.
2. The validity of the declaration (§ 167) that the price of admission is a matter “affected with a public interest,” is in this case necessarily involved in determining the question directly
3. The right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself, and, as such, within the protection of the Due Process of Law clauses of the Fifth and Fourteenth Amendments. P. 429.
4. The power to regulate property, services or business can be invoked only under special circumstances; and it does not follow that because the power may exist to regulate in some particulars it exists to regulate in others or in all. P. 430.
5. The authority to regulate the conduct of a business or to require a license, comes from a branch of the police power which may be quite distinct from the power to fix prices. P. 430.
6. The power to fix prices does not exist in respect of merely private property or business, but exists only where the business or the property involved has become “affected with a public interest.” P. 430.
7. A business is not affected with a public interest merely because it is large or because the public are warranted in having a feeling of concern in respect of its maintenance. Nor is the interest meant such as arises from the mere fact that the public derives benefit, accommodation, ease or enjoyment from the existence or operation of the business; and while the word has not always been limited narrowly as strictly denoting “a right,” that synonym more nearly than any other expresses the sense in which it is to be understood. P. 430.
8. Characterizations of businesses as “quasi public, not strictly private,” and the like, while well enough as a basis for upholding police regulations in respect of the conduct of particular businesses, cannot be accepted as equivalents for the description “affected with a public interest,” as that phrase is used in the decisions of this Court as the basis for legislative regulation of prices. P. 430.
9. A declaration of the legislature that a business is affected with a public interest is not conclusive upon the judiciary in determining the validity of a regulation fixing prices in the business. P. 431.
10. The language of an opinion (Munn v. Illinois, 94 U. S. 113, 126), must be limited to the case under consideration. P. 433.
11. A business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use and its use thereby, in effect, granted to the public. P. 434.
12. Each of the decisions of this Court upholding governmental price regulation, aside from cases involving legislation to tide over temporary emergencies, has turned upon the existence of conditions, peculiar to the business under consideration, which bore such a substantial and definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use. P. 438.
13. A theatre, though a license may be required, is a private enterprise; the license is not a franchise putting the proprietor under a duty to furnish entertainment to the public and admit all who apply. P. 439.
14. The contention that, historically considered, places of entertainment may be regarded as so affected with a public interest as to justify legislative regulation of their charges, is rejected. P. 441.
15. A statutory provision fixing the prices at which theatre tickets may be resold can not be sustained as a measure for preventing fraud, extortion, and collusive arrangements between theatre managers and ticket brokers. P. 442.
16. Constitutional principles, applied as they are written, must be assumed to operate justly and wisely as a general thing, and they may not be remolded by lawmakers or judges to save exceptional cases of inconvenience, hardship, or injustice. P. 445.
Reversed.
APPEAL from a decree of the District Court denying a temporary injunction in a suit brought by the appellant, a licensed ticket-broker corporation in New York, to restrain the District Attorney of New York County and the State Comptroller from forfeiting the license, forfeiting the bond accompanying the same, and prosecuting criminal proceedings, under the state law, because of the appellant‘s failure to conform to a provision thereof limiting the prices at which it may resell tickets, which it challenges as invalid under the Fourteenth Amendment.
Mr. Louis Marshall, with whom Mr. James Marshall was on the brief, for appellant.
The business of a ticket broker is lawful and cannot be prohibited. Theatre tickets are property in the constitutional sense. People ex rel. Tyroler v. Warden of City Prison, 157 N. Y. 116; People ex rel. Fleischmann v. Caldwell, 64 App. Div. 46; aff‘d 168 N. Y. 671; People v. Marks, 64 Misc. Rep. 679; Collister v. Hayman, 183 N. Y. 250; Matter of Newman, 109 Misc. Rep. 622; People v. Weller, 237 N. Y. 320.
It is unreasonable to suggest that the price of theatre tickets is “affected with a public interest” when this is not true of the prices of necessaries of life and wages. The limitations on the power of the Legislature to fix the price of commodities or of services, or to limit the right to contract with regard to them, were stated in People v. Budd, 117 N. Y. 1, aff‘d sub nom. Budd v. New York, 143 U. S. 517; People v. Weller, 237 N. Y. 322; Adkins v. Childrens Hospital, 261 U. S. 525; Adair v. United States, 208 U. S. 161; Coppage v. Kansas, 236 U. S. 1. Distinguishing, Wilson v. New, 243 U. S. 332; Block v. Hirsh, 256 U. S. 135; Brown Holding Co. v. Feldman, 256 U. S. 170; and Levy Leasing Co. v. Siegel, 258 U. S. 242. Other applicable decisions are, Adams v. Tanner, 244 U. S. 590; Allgeyer v. Louisiana, 165 U. S. 578; Carrollton v. Bazzette, 159 Ill. 284; People ex rel. Moskowitz v. Jenkins, 202 N. Y. 53; People ex rel. Tyroler v. Warden, 157 N. Y. 116; Collister v. Hayman, 183 N. Y. 250; Producers Transp. Co. v. R. R. Comm‘rs, 251 U. S. 228; Pub. Util. Comm. v. Duke, 266 U. S. 570; Frost v. R. R. Comm., 271 U. S. 583.
Power to fix the price of theatre tickets was denied in People v. Newman, 109 Misc. Rep. 622; Ex parte Quarg, 149 Cal. 79; People v. Steele, 231 Ill. 340; Chicago v. Powers, 231 Ill. 560; People v. Weiner, 271 Ill. 74; Chicago v. Netcher, 183 Ill. 104; People ex rel. Cort v. Thompson, 283 Ill. 87. Opinion of the Justices, 247 Mass. 589, was merely an advisory opinion.
Neither the business of conducting a theatre nor that of a ticket broker is affected with a public interest. Wolff Packing Co. v. Industrial Court, 262 U. S. 522; 267 U. S. 552; Dorchy v. Kansas, 264 U. S. 286; National Bank v. Mechanics Nat. Bank, 94 U. S. 437; Rensselaer Glass Factory v. Reid, 5 Cowen 587; Gray v. Bennet, 3 Metc. 522; Dunham v. Gould, 16 Johns. 367; Houghton v. Page, 1 N. H. 60; Mason v. Callender, 2 Minn. 350; Kermot v. Ayer, 11 Mich. 181; Adriance v. Brooks, 13 Tex. 279. Such cases as Munn v. Illinois, 94 U. S. 113; and German Alliance Ins. Co. v. Kansas, 233 U. S. 389, proceed upon the principle that an emergency existed. See Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, and Adkins v. Childrens Hospital, supra. Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252, distinguished. See also Yellow Taxicab Co. v. Gaynor, 82 Misc. Rep. 94; Schmidinger v. Chicago, 226 U. S. 578; Burns Baking Co. v. Bryan, 264 U. S. 504; People ex rel. Armstrong v. Warden, 183 N. Y. 223. That even a theatre, and a fortiori, those who are engaged in the business of selling tickets entirely outside of the theatre, do not come within the purview of the doctrine on which the State relies, is apparent from the decisions in Collister v. Hayman, 183 N. Y. 250; People ex rel. Burnham v. Flynn, 189 N. Y. 180; Aaron v. Ward, 203 N. Y. 351, and Wolcott v. Shubert, 217 N. Y. 212. People v. King, 110 N. Y. 418 distinguished. People ex rel. Cort v. Thompson, 283 Ill. 87.
Mr. Felix C. Benvenga, with whom Messrs. Robert D. Petty and Edwin B. McGuire were on the brief, for appellee Banton.
The Court of Appeals of the State of New York has upheld the statute in its entirety, People v. Weller, 237 N. Y. 316; aff‘g 207 App. Div. 337, and this Court has upheld it in part, Weller v. New York, 268 U. S. 319. The statute was passed in 1922. During 1923, at least three states passed statutes relating to the sale of tickets to places of amusement. Illinois, L. 1923, p. 323; New Jersey, L. 1923, p. 143, ch. 71; Connecticut, L. 1923, ch.
The extent to which regulation may reasonably go depends upon the nature of the business-whether it is
If the business of conducting a theatre is a business affected with a public interest, that of reselling theatre tickets is also affected. Opinion of the Justices, supra; People v. Weller, supra. Assuming that the business may not, in its origin, have been affected with a public interest, yet because of the abuses which have grown up in con-
When evils are admitted, great discretion should be allowed the legislature in devising remedies. If it has been demonstrated by experience that a remedy is not sufficient to check the evil, then certainly the legislature can, under the police power, adopt a new and more drastic remedy. Power to adopt new remedies when old remedies fail is illustrated by the legislation as to lotteries, carrying concealed weapons and regulating the sale of intoxicating liquors. Ford v. State 85 Md., 465; Noble State Bank v. Haskell, 219 U. S. 104; Collister v. Hayman, supra. The Legislature was under a duty to pass the present statute and fix a rate. Its inaction would have been a confession that it was powerless to secure to its citizens the blessings of freedom and to promote the general welfare. People ex rel. Durham v. La Fetra 230 N. Y. 429; People v. Schweinler Press, 214 N. Y. 395; State v. Harper, 148 Wis. 57; Lawton v. Steele, 152 U. S. 133.
Mr. Robert P. Beyer, Deputy Attorney General of New York, with whom Mr. Albert Ottinger, Attorney General, was on the brief, for appellee Murphy.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Appellant is engaged in the business of reselling tickets of admission to theatres and other places of entertainment in the City of New York. It employs a large number of salesmen, messenger boys and others. Its expenses are very large, and its sales average approximately 300,000 tickets per annum. These tickets are obtained either from the box office of the theatre or from other brokers and distributors. It is duly licensed under § 168, c. 590, New York Laws, 1922, and has given a bond under § 169 of that chapter in the penal sum of $1,000 with sureties, conditioned, among other things, that it will not be guilty of any fraud or extortion. See Weller v. New York, 268 U. S. 319, 322,
This suit was brought to enjoin respondents from proceeding either at law or in equity to enforce the last named section, and from revoking plaintiff‘s license, enforcing by suit or otherwise the penalty of the bond or prosecuting criminally appellant or any of its officers or agents for reselling or attempting to resell any ticket or other evidence of the right of entry to any theatre, etc., at a price in excess of fifty cents in advance of the printed
*§ 167. Matters of Public Interest. It is hereby determined and declared that the price of or charge for admission to theatres, places of amusement or entertainment, or other places where public exhibitions, games, contests or performances are held is a matter affected with a public interest and subject to the supervision of the state for the purpose of safeguarding the public against fraud, extortion, exorbitant rates and similar abuses.
§ 172. Restriction as to Price. No licensee shall resell any such ticket or other evidence of the right of entry to any theatre, place of amusement or entertainment, or other place where public exhibitions, games, contests or performances are given at a price in excess of fifty cents in advance of the price printed on the face of such ticket or other evidence of the right of entry. Every person, firm, or corporation who owns, operates or controls a theatre, place of amusement or entertainment, or other place where public exhibitions, games, contests or performances are held shall, if a price be charged for admission thereto, print on the face of each such ticket or other evidence of the right of entry the price charged therefor by such person, firm or corporation.
The case was heard below by a statutory court of three judges and a decree rendered denying appellant‘s prayer for a temporary injunction and holding the statute assailed to be valid and constitutional. The provision of the statute in question also has been upheld in a judgment of the New York state court of appeals, People v. Weller, 237 N. Y. 316, brought here on writ of error. That case, however, directly involved only § 168, requiring a license, and although it was insisted that § 172 restricting prices should also be considered, upon the ground that the two provisions were inseparable, this court held otherwise, sustained the validity of the license section and declined to
Strictly, the question for determination relates only to the maximum price for which an entrance ticket to a theatre, etc., may be resold. But the answer necessarily must be to a question of greater breadth. The statutory declaration (§ 167) is that the price of or charge for admission to a theatre, place of amusement or entertainment or other place where public exhibitions, games, contests or performances are held, is a matter affected with a public interest. To affirm the validity of § 172 is to affirm this declaration completely, since appellant‘s business embraces the resale of entrance tickets to all forms of entertainment therein enumerated. And since the ticket broker is a mere appendage of the theatre, etc., and the price of or charge for admission is the essential element in the statutory declaration, it results that the real inquiry is whether every public exhibition, game, contest or performance, to which an admission charge is made, is clothed with a public interest, so as to authorize a law-making body to fix the maximum amount of the charge, which its patrons may be required to pay.
In the endeavor to reach a correct conclusion in respect of this inquiry, it will be helpful, by way of preface, to state certain pertinent considerations. The first of these is that the right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself, Case of the State Freight Tax, 15 Wall. 232, 278, and, as such, within the protection of the due process of law clauses of the Fifth and Fourteenth Amendments. See City of Carrollton v. Bazzette, 159 Ill. 284, 294. The power to regulate property, services or business can be invoked only under special circumstances; and it does not follow that because the power may exist to regulate in some particulars it exists to regulate in others or in all.
A business is not affected with a public interest merely because it is large or because the public are warranted in having a feeling of concern in respect of its maintenance. Nor is the interest meant such as arises from the mere fact that the public derives benefit, accommodation, ease or enjoyment from the existence or operation of the business; and while the word has not always been limited narrowly as strictly denoting “a right,” that synonym more nearly than any other expresses the sense in which it is to be understood.
The characterizations in some decisions of businesses as “quasi public,” People v. King, 110 N. Y. 418, 428, “not ‘strictly’ private,” Aaron v. Ward, 203 N. Y. 351, 356, and the like, while well enough for the purpose for which they were employed, namely, as a basis for upholding police regulations in respect of the conduct of particular
And, finally, the mere declaration by the legislature that a particular kind of property or business is affected with a public interest is not conclusive upon the question of the validity of the regulation. The matter is one which is always open to judicial inquiry. Wolff Co. v. Industrial Court, 262 U. S. 522, 536.
In the Wolff case, this court held invalid the wage fixing provision of the compulsory arbitration statute of Kansas as applied to a meat packing establishment. The power of a legislature, under any circumstances, to fix prices or wages in the business of preparing and selling food was seriously doubted, but the court concluded that, even if the legislature could do so in a public emergency, no such emergency appeared, and, in any event, the power would not extend to giving compulsory continuity to the business by compulsory arbitration. In the course of the opinion (p. 535), it was said that business characterized as clothed with a public interest might be divided into three classes:
“(1) Those which are carried on under the authority of a public grant of privileges which either expressly or impliedly imposes the affirmative duty of rendering a public service demanded by any member of the public. Such are the railroads, other common carriers and public utilities.
“(2) Certain occupations, regarded as exceptional, the public interest attaching to which, recognized from earliest
“(3) Businesses which though not public at their inception may be fairly said to have risen to be such and have become subject in consequence to some government regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly.” Citing the Munn case and others.
If the statute now under review can be sustained as valid, it must be in virtue of the doctrine laid down in the third paragraph; and it will aid in the effort to reach a correct conclusion in that respect if we shall first consider the principal decisions of this court where that doctrine has been applied. The leading, as well as the earliest, definite decision dealing with a business falling within that class is Munn v. Illinois, supra, which sustained the validity of an Illinois statute fixing the maximum charge to be made for the use of elevators and warehouses for the elevation and storage of grain.
As ground for that decision the opinion recites, among other things, that grain came from the west and northwest by water and rail to Chicago where the greater part of it was shipped by vessel to the seaboard and some of it by railway to eastern ports; that Chicago had been made the greatest grain market in the world; and that the business had created a demand for means by which the immense quantity of grain could be handled or stored and these had been found in grain elevators. In this way the largest
There is some general language in the opinion which, superficially, might seem broad enough to cover cases like the present one. It was said, for example (p. 126): “Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.” Literally, that would include all the large industries and some small ones; but in accordance with the well settled rule the words must be limited to the case under consideration. Cohens v. Virginia, 6 Wheat. 264, 399; Plumley v. Massachusetts, 155 U. S. 461, 474. Indeed, the language quoted is qualified immediately by a statement of the general rule, that-“When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.”
The significant requirement is that the property shall be devoted to a use in which the public has an interest,
In Cotting v. Kansas City Stock Yards Co., &c., 183 U. S. 79, 85, Mr. Justice Brewer, speaking on that point for himself and two other members of the court, said that, tested by the Munn case, the stock yards of the company, situated in one of the gateways of commerce and so located that they furnished important facilities to all seeking transportation of cattle, were subject to governmental price regulation. But the majority of the court, without referring to this view, assented to a reversal upon a ground specifically stated (pp. 114-115); and the authority of the case must be limited by the terms of that statement.
German Alliance Ins. Co. v. Kansas, 233 U. S. 389, carries the doctrine further and marks the extreme limit to which this court thus far has gone in sustaining price fixing legislation. There the court said that a business might be affected with a public interest so as to permit price regulation although no public trust was impressed upon the property and although the public might not have a legal right to demand and receive service; and it was held that fire insurance was such a business. Mr. Justice McKenna, speaking for the court, pointed out that in an insurance business each risk was not individual;
“And we mean a broad and definite public interest. In some degree the public interest is concerned in every transaction between men, the sum of the transactions constituting the activities of life. But there is something more special than this, something of more definite consequence, which makes the public interest that justifies regulatory legislation.”
The business of common carriers, transmission of intelligence, furnishing water and light, gas and electricity, were cited as examples, and the Munn, Budd and Brass cases reviewed. The fact that the contract of fire insurance was personal in character, it was said, did not preclude regulation, and in that connection it was pointed out that insurance companies were so regulated by state legislation as to show that the law-making bodies of the country, without exception, regarded the business of insurance as so far affecting the public welfare as to invoke and require governmental regulation. And it was then said (p. 412-413):
“Accidental fires are inevitable and the extent of loss very great. The effect of insurance-indeed, it has been said to be its fundamental object-is to distribute the loss over as wide an area as possible. In other words, the loss is spread over the country, the disaster to an individual is shared by many, the disaster to a community shared by other communities; great catastrophes are thereby lessened, and, it may be, repaired. In assimilation of insurance to a tax, the companies have been said to be the mere machinery by which the inevitable losses by fire are distributed so as to fall as lightly as
And again (p. 413):
“Contracts of insurance, therefore, have greater public consequence than contracts between individuals to do or not to do a particular thing whose effect stops with the individuals.”
And again (p. 414):
“We have shown that the business of insurance has very definite characteristics, with a reach of influence and consequence beyond and different from that of the ordinary businesses of the commercial world, to pursue which a greater liberty may be asserted. The transactions of the latter are independent and individual, terminating in their effect with the instances. The contracts of insurance may be said to be interdependent. They cannot be regarded singly, or isolatedly, and the effect of their relation is to create a fund of assurance and credit, the companies becoming the depositories of the money of the insured, possessing great power thereby and charged with great responsibility.”
Answering the objection that the reasoning of the opinion would subject every act of human endeavor and the price of every article of human use to regulation, it was said (p. 415):
“And both by the expression of the principle and the citation of the examples we have tried to confine our decision to the regulation of the business of insurance, it having become ‘clothed with a public interest,’ and therefore subject ‘to be controlled by the public for the common good.’ ”
This observation fairly may be regarded as a warning at least to be cautious about invoking the decision as a precedent for the determination of cases involving other kinds of business. And this view is borne out by a general consideration of the case. The decision proceeds
Wilson v. New, 243 U. S. 332 (involving the Adamson law), Block v. Hirsh, 256 U. S. 135, and Marcus Brown Co. v. Feldman, 256 U. S. 170 (the rental cases), are relied upon to sustain the statute now under review. But in these cases the statutes involved were of a temporary character, to tide over grave emergencies, Adkins v. Children‘s Hospital, 261 U. S. 525, 551-552, the emergency in the New case being of nation-wide extent; and it is clear that, in the opinion of this court, at least the business of renting houses and apartments is not so affected with a public interest as to justify legislative fixing of prices unless some great emergency exists. Block v. Hirsh, supra, p. 157; Chastleton Corp. v. Sinclair, 264 U. S. 543, 548. And even with the emergency, the stat-
Nor is the sale of ordinary commodities of trade affected with a public interest so as to justify legislative price fixing. This court said in Wolff Co. v. Industrial Court, supra, p. 537:
“It has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the wood chopper, the mining operator or the miner was clothed with such a public interest that the price of his product or his wages could be fixed by State regulation. It is true that in the days of the early common law an omnipotent Parliament did regulate prices and wages as it chose, and occasionally a Colonial legislature sought to exercise the same power; but nowadays one does not devote one‘s property or business to the public use or clothe it with a public interest merely because one makes commodities for, and sells to, the public in the common callings of which those above mentioned are instances.”
See also, United States v. Bernstein, 267 Fed. 295, 296.
From the foregoing review it will be seen that each of the decisions of this court upholding governmental price regulation, aside from cases involving legislation to tide over temporary emergencies, has turned upon the existence of conditions, peculiar to the business under consideration, which bore such a substantial and definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use.
Lord Hale‘s statement that when private property is “affected with a public interest, it ceases to be juris privati only,” is accepted by this court as the guiding principle in cases of this character. That this phrase was not intended by its author to include private undertakings, like those enumerated in the statute now under consid
It is clear that, as there announced, the rule is confined to conveniences made public because the privilege of maintaining them has been granted by government or because there has arisen what may be termed a constructive grant of the use to the public. That this is what Lord Hale had in mind is borne out, and the question now under consideration is illuminated, by the illustration, which he evidently conceived to be pertinent, of a street opened to the public, in which case the assumed grant and resulting public right of use is very apparent.
A theatre or other place of entertainment does not meet this conception of Lord Hale‘s aphorism or fall within the reasons of the decisions of this court based upon it. A theatre is a private enterprise, which, in its relation to the public, differs obviously and widely, both in character and degree, from a grain elevator, standing at the gateway of commerce and exacting toll, amounting to a common charge, for every bushel of grain which passes on its way among the states; or stock yards, standing in
The interest of the public in theatres and other places of entertainment may be more nearly, and with better reason, assimilated to the like interest in provision stores and markets and in the rental of houses and apartments for residence purposes; although in importance it falls below such an interest in the proportion that food and shelter are of more moment than amusement or instruction. As we have shown, there is no legislative power to fix the prices of provisions or clothing or the rental charges for houses or apartments, in the absence of some controlling emergency; and we are unable to perceive any dissimilarities of such quality or degree as to justify a different rule in respect of amusements and entertainments.
A theatre ticket may be in the form of a revocable license or of a contract. If the former, it may be revoked at the will of the proprietor; if the latter, it may be made non-transferable or otherwise conditioned. A theatre, of course, may be regulated so as to preserve the public peace, insure good order, protect public morals, and the like. A license may be required, but such a license is
The contention that, historically considered, places of entertainment may be regarded as so affected with a public interest as to justify legislative regulation of their charges, does not seem to us impressive. It may be true, as asserted, that, among the Greeks, amusement and instruction of the people through the drama was one of the duties of government. But certainly no such duty devolves upon any American government. The most that can be said is that the theatre and other places of entertainment, generally have been regarded as of high value to the people, to be encouraged, but, at the same time, regulated, within limits already stated. While theatres have existed for centuries and have been regulated in a variety of ways, and while price fixing by legislation is an old story, it does not appear that any attempt hitherto has been made to fix their charges by law. This is a fact of some significance in connection with the historical argument, and, when set in contrast with the practice in respect of inn-keepers and others, whose charges have been subjected to legislative regulation from a very early period, it persuasively suggests that by general legislative acquiescence theatres, historically, have been regarded as falling outside the classes of things which should be thus controlled. It will do not to say that this failure of legislative bodies to act in the matter has been due to the absence of complaints on the part of the public,
If it be within the legitimate authority of government to fix maximum charges for admission to theatres, lectures (where perhaps the lecturer alone is concerned), baseball, football and other games of all degrees of interest, circuses, shows (big and little), and every possible form of amusement, including the lowly merry-go-round with its adjunct, the hurdy-gurdy, Commonwealth v. Bow, 177 Mass. 347, it is hard to see where the limit of power in respect of price fixing is to be drawn.
It is urged that the statutory provision under review may be upheld as an appropriate method of preventing fraud, extortion, collusive arrangements between the management and those engaged in reselling tickets, and the like. That such evils exist in some degree in connection with the theatrical business and its ally, the ticket broker, is undoubtedly true, as it unfortunately is true in respect of the same or similar evils in other kinds of business. But evils are to be suppressed or prevented by legislation which comports with the Constitution, and not by such as strikes down those essential rights of private property protected by that instrument against undue governmental
What this court said in Adams v. Tanner, 244 U. S. 590, 594, in the course of its opinion holding invalid a statute of Washington penalizing the collection of fees for securing employment, is apposite:
“Because abuses may, and probably do, grow up in connection with this business, is adequate reason for hedging it about by proper regulations. But this is not enough to justify destruction of one‘s right to follow a distinctly useful calling in an upright way. Certainly there is no profession, possibly no business, which does not offer peculiar opportunities for reprehensible practices; and as to every one of them, no doubt, some can be found quite ready earnestly to maintain that its suppression would be in the public interest. Skillfully directed agitation might also bring about apparent condemnation of any one of them by the public. Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.”
The evil of collusive alliances between the proprietors of theatres and ticket brokers or scalpers seems to have been effectively dealt with in Illinois by an ordinance
That court had held in the earlier case of The People v. Steele, 231 Ill. 340, 344, that the business of conducting a theatre was a private one; that the legislature had the power to regulate it as a place of public amusement and might require a license; that the legislature had the same power to regulate such a business as it had to regulate any other private business, and no more. And an act which prohibited the resale of tickets for more than the price printed thereon was held to be invalid as an arbitrary and unreasonable interference with the rights of the ticket broker. It was distinctly held that the intending purchaser of the ticket had no right to buy at any price except that fixed by the holder; that the manager might fix the price arbitrarily, and raise or lower it at his will; that having advertised a performance, he was not bound to give it, and having advertised a price, he was not bound to sell at that price; and that the business of dealing in theatre tickets and the right to contract with regard to them were entitled to protection. To the same effect, see Ex parte Quarg, 149 Cal. 79.
This doctrine was reaffirmed in the Thompson case, but held to have no application to the ordinance there considered and not to be inconsistent with the holding (p. 97)
It should not be difficult similarly to define and penalize in specific terms other practices of a fraudulent character, the existence or apprehension of which is suggested in brief and argument. But the difficulty or even the impossibility of thus dealing with the evils, if that should be conceded, constitutes no warrant for suppressing them by methods precluded by the Constitution. Such subversions are not only illegitimate but are fraught with the danger that, having begun on the ground of necessity, they will continue on the score of expediency, and, finally, as a mere matter of course. Constitutional principles, applied as they are written, it must be assumed, operate justly and wisely as a general thing, and they may not be remolded by lawmakers or judges to save exceptional cases of inconvenience, hardship or injustice.
We are of opinion that the statute assailed contravenes the Fourteenth Amendment and that the decree must be
Reversed.
MR. JUSTICE HOLMES, dissenting.
We fear to grant power and are unwilling to recognize it when it exists. The States very generally have stripped jury trials of one of their most important characteristics by forbidding the judges to advise the jury upon the facts (Graham v. United States, 231 U. S. 474, 480), and when legislatures are held to be authorized to do anything considerably affecting public welfare it is covered by apologetic phrases like the police power, or the statement that the business concerned has been dedicated to a public use. The former expression is convenient, to be sure, to conciliate the mind to something that needs explanation: the fact that the constitutional requirement of compensation
I do not believe in such apologies. I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain. Coming down to the case before us I think, as I intimated in Adkins v. Children‘s Hospital, 261 U. S. 525, 569, that the notion that a business is clothed with a public interest and has been devoted to the public use is little more than a fiction intended to beautify what is disagreeable to the sufferers. The truth seems to me to be that, subject to compensation when compensation is due, the legislature may forbid or restrict any business when it has a sufficient force of public opinion behind it. Lotteries were thought useful adjuncts of the State a century or so ago; now they are believed to be immoral and they have been stopped. Wine has been thought good for man from the time of the Apostles until recent years. But when public opinion changed it did not need the Eighteenth Amendment, notwithstanding the Fourteenth, to enable a State to say that the business should end. Mugler v. Kansas, 123 U. S. 623. What has happened to lotteries and wine might happen to theatres in some moral storm of the future, not because theatres were devoted to a public use, but because people had come to think that way.
MR. JUSTICE BRANDEIS concurs in this opinion.
MR. JUSTICE STONE, dissenting.
I can agree with the majority that “constitutional principles, applied as they are written, it must be assumed, operate justly and wisely as a general thing, and they may not be remolded by lawmakers or judges to save exceptional cases of inconvenience, hardship, or injustice.” But I find nothing written in the Constitution, and nothing in the case or common law development of the Fourteenth Amendment, which would lead me to conclude that the type of regulation attempted by the State of New York is prohibited.
The scope of our inquiry has been repeatedly defined by the decisions of this Court. As was said in Munn v. Illinois, 94 U. S. 113, 132, by Chief Justice Waite, “For us the question is one of power, not of expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative power of the state. But if it could, we must presume it did. Of the propriety of legislative interference within the scope of legislative power, the legisla
The question with which we are here concerned is much narrower than the one which has been principally discussed by the Court. It is not whether there is constitutional power to fix the price which theatre owners and producers may charge for admission. Although the statute in question declares that the price of tickets of admission to places of amusement is affected with a public interest, it does not purport to fix prices of admission. The producer or theatre proprietor is free to charge any price he chooses. The statute requires only that the sale price, whatever it is, be printed on the face of the ticket, and prohibits the licensed ticket broker, an intermediary
There are about sixty first class theatres in the borough of Manhattan. Brokers annually sell about two million tickets, principally for admission to these theatres. Appellant sells three hundred thousand tickets annually. The practice of the brokers, as revealed by the record, is to subscribe, in advance of the production of the play and frequently before the cast is chosen, for tickets covering a period of eight weeks. The subscriptions must be paid two weeks in advance and about twenty-five per cent. of the tickets unsold may be returned. A virtual monopoly of the best seats, usually the first fifteen rows, is thus acquired and the brokers are enabled to demand extortionate prices of theatre goers. Producers and theatre proprietors are eager to make these advance sales which are an effective insurance against loss arising from unsuccessful productions. The brokers are in a position to prevent the direct purchase of tickets to the desirable seats and to exact from the patrons of the successful productions a price sufficient to pay the loss of those which are unsuccessful, plus an excessive profit to the broker.
It is undoubtedly true as a general proposition that one of the incidents of the ownership of property is the power to fix the price at which it may be disposed. It may be also assumed that as a general proposition, under the decisions of this Court, the power of state governments to regulate and control prices may be invoked only in special and not well defined circumstances. But when that power is invoked in the public interest and in consequence of the gross abuse of private right disclosed by this record, we should make searching and critical examination of those circumstances which in the past have been deemed sufficient to justify the exercise of the power, before concluding that it may not be exercised here.
The constitutional theory that prices normally may not be regulated rests upon the assumption that the public interest and private right are both adequately protected when there is “free” competition among buyers and sellers, and that in such a state of economic society, the interference with so important an incident of the ownership of private property as price fixing is not justified and hence is a taking of property without due process of law.
Statutory regulation of price is commonly directed toward the prevention of exorbitant demands of buyers or sellers. An examination of the decisions of this Court in which price regulation has been upheld will disclose that the element common to all is the existence of a situation or a combination of circumstances materially restricting the regulative force of competition, so that buyers or sellers are placed at such a disadvantage in the
That should be the result here. We need not attempt to lay down any universal rule to apply to new and unknown situations. It is enough for present purposes that this case falls within the scope of the earlier decisions and that the exercise of legislative power now considered was not arbitrary. The question as stated is not one of reasonable prices, but of the constitutional right in the circumstances of this case to exact exorbitant profits beyond reasonable prices. The economic consequence of this regulation upon individual ownership is no greater, nor is it essentially different from that inflicted by regulating rates to be charged by laundries, Oklahoma Operating Co. v. Love, 252 U. S. 331 (semble), by anti-monopoly laws, Sunday laws, usury statutes, Griffith v. Connecticut, 218 U. S. 563; Workmen‘s Compensation Acts, New York Central R. R. v. White, 243 U. S. 188; the zoning ordinance upheld in Village of Euclid v. Ambler Realty Co., supra; or state statutes restraining the owner of land
The problem sought to be dealt with has been the subject of earlier legislation in New York and has engaged the attention of the legislators of other states.2 That it is
MR. JUSTICE HOLMES and MR. JUSTICE BRANDEIS join in this dissent.
MR. JUSTICE SANFORD, dissenting.
I regret that I cannot agree with the opinion of the Court in this case. My own view is more nearly that expressed by Mr. Justice Stone. Shortly stated, it is this: The case, I think, does not involve the question whether the business of theatre owners offering their separate entertainments is so affected with a public interest that the price which they themselves charge for tickets is subject to regulation by the legislature, but the very different question whether the business of ticket brokers who intervene between the theatre owners and the general public in the sale of theatre tickets is affected with a public interest, and may, under the circumstances disclosed in this case, be
In Munn v. Illinois, 94 U. S. 113, 132 — although there was no holding that the sale of grain was in itself a business affected with a public interest which could be regulated by the legislature — it was held that the separate business of grain elevators, which “stood in the very gateway of commerce” in grain, “taking toll” from all who passed and tending to a common charge, had become, by the facts, clothed “with a public interest” and was subject to public regulation limiting the charges to a reasonable toll. So, I think, that here — without reference to the character of the business of the theatres themselves — the business of the ticket brokers, who stand in “the very gateway” between the theatres and the public, depriving the public of access to the theatres for the purchase of desirable seats at the regular prices, and exacting toll from patrons of the theatres desiring to purchase such seats, has become clothed with a public interest and is subject to regulation by the legislature limiting their charges to reasonable exactions and protecting the public from extortion and exorbitant rates. See People v. Weller, 207 App. Div. 337, 343, and 237 N. Y. 316, 331, in which the constitutionality of this statute was sustained by the New York courts; and Opinion of the Justices to the Senate, 247 Mass. 589, 598. And in Wolff Co. v. Industrial Court, 262 U. S. 522, 535, it was recognized that a business,