People v. Weller

Decision Date19 February 1924
Citation237 N.Y. 316,143 N.E. 205
PartiesPEOPLE v. WELLER.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Reuben Weller was convicted of engaging in the business of reselling theater tickets without a license, and appeals from a judgment of the Appellate Division (207 App. Div. 337,202 N. Y. Supp. 149) affirming the judgment of the Court of Special Sessions of New York City.

Affirmed.

Andrews, J., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Louis Marshall and James Marshall, both of New York City, for appellant.

Joab H. Banton, Dist. Atty., of New York City (Robert D. Petty and Felix C. Benvenga, both of New York City, of counsel), for the People.

Joseph S. Auerbach and Charles H. Tuttle, both of New York City, amici curiae.

LEHMAN, J.

The defendant has been convicted upon an information which charged that-- He unlawfully did engage in the business of reselling tickets of admission to a theater and place of amusement and did resell to one John Cunniff, a ticket of admission to a certain theater and place of amusement called Palace Theatre, without first having obtained the necessary license thereof from the comptroller of the state of New York as required by law.’

He does not deny that he has committed the acts charged in the information, but he contends that the provisions of the General Business Law (Consol Laws, c. 20), which seek to regulate the business of reselling tickets of admission to theaters and places of public amusement transcend the power of the Legislature and are unconstitutional and void. These provisions were inserted in the General Business Law (sections 167 to 174 by chapter 590 of the Laws of 1922. They prohibit any person, firm or corporation from engaging ‘in the business of reselling any tickets of admission or any other evidence of the right of entry to a theater, place of amusement or entertainment, or other places where public exhibitions, games, contests or performances are held without having first procured a license therefor from the comptroller.’ Each applicant for a license is required to file with the application therefor a bond in the penal sum of $1,000 conditioned that the obligor will not be guilty of any fraud or extortion and will not exact or receive a price for any such ticket or evidence of the right of entry in excess of the price authorized by the statute. In case of a breach of the condition of the bond, suit may be brought to recover upon the bond, and in addition the comptroller is empowered to revoke the license. The statute further provides that--

‘No licensee shall resell any such ticket * * * 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 theater, 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.’

[1] The business of reselling tickets of admission to places of public amusement has always been regarded as a lawful business which serves the convenience and promotes the comfort of persons who desire to purchase at convenient times and places tickets which otherwise they could purchase only at the office established by the management of the places of amusement for the sale of tickets in advance of the performance until the full supply of tickets should be disposed of. The statute has not rendered the business unlawful, but it seeks to confine the business to persons obtaining a license, and to restrict drastically the price at which tickets may be resold. Such restrictions interfere with the liberty of those desiring to engage in that business and are lawful only if imposed by the Legislature in the exercise of what has come to be described as the ‘police power.’

[2] The time has probably passed when any useful purpose can be served by further discussion of the general nature of the police power or even in most cases by citation of general definitions, though contained in opinions which we might consider authoritative. When the attempted exercise by the Legislature of the power to regulate certain kinds of business and especially to fix prices was first challenged in the courts, the courts laid down the general rule that the power to regulate and fix prices depends upon whether the business is so ‘clothed with a public interest’ as to justify reasonably the imposition of regulations calculated to remove abuses, or perhaps even to secure benefits, in regard to features which clearly affect the public. This general rule is now well recognized, but the limits of its application are still somewhat shadowy and indefinite. As the court pointed out in Wolff Packing Co. v. Industrial Court, 262 U. S. 522, at page 538, 43 Sup. Ct. 630, 634 (67 L. Ed. 1103, 27 A. L. R. 1280):

‘All business is subject to some kinds of public regulation; but when the public becomes so peculiarly dependent upon a particular business that one engaging therein subjects himself to a more intimate public regulation is only to be determined by the process of exclusion and inclusion and to gradual establishment of a line of distinction.’

In the case of People v. Budd, 117 N. Y. 1, at page 15,22 N. E. 670, 675 (5 L. R. A. 559, 15 Am. St. Rep. 460), this court, speaking through Judge Andrews, in pointing out similar considerations, said:

‘It must be conceded that the uses to which a man may devote his property, the price which he may charge for such use, how much he shall demand or receive for his labor, and the methods of conducting his business are, as a general rule, not the subject of legislative regulation. These are a part of our liberty, of which, under the constitutional guaranty, we cannot be deprived. We have no hesitation in declaring that unless there are special conditions and circumstances which bring the business * * * within principles, which, by the common law and the practice of free governments, justify legislative control and regulationin the particular case, the statute * * * cannot be sustained.’

Decisions of this and other courts since that time have merely tended by the process of inclusion and exclusion to indicate the nature of the ‘special conditions and circumstances' which may bring a business within principles which justify legislative control and regulation, and these cases may be referred to profitably only in so far as the ‘special conditions and circumstances' considered therein are analogous to the special conditions and circumstances under consideration by us.

[3] The courts have frequently pointed out that the business of conducting a theater or place of public amusement is ‘affected with a public interest’ and it is urged by the people that by reason of this public interest the Legislature may regulate the price of theater tickets and that the business of reselling theater tickets is so closely connected with the business of conducting the theater that the Legislature may likewise regulate the price that may be demanded or received upon the resale of tickets by ‘brokers' or ‘speculators.’ ‘To say that a business is clothed with a public interest, is not be determine what regulation may be permissible in view of the private rights of the owner. * * * It is not a matter of legislative discretion solely. It depends on the nature of the business, on the feature which touches the public, and on the abuses reasonably to be feared. * * * The extent to which regulation may reasonably go varies with different kinds of business.’ Wolff Packing Co. v. Industrial Court, supra, p. 539, 43 Sup. Ct. 634. In people v. King, 110 N. Y. 418, 18 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389, this court by Andrews, J., pointed out that though the business of conducting a theater or place of public amusement is one in which any one may engage in the absence of any statute or ordinance, yet the right of the Legislature to regulate the licensing of theaters and shows and to ‘enforce restrictions relating to such places in the public interest’ has never been challenged, and that ‘the quasi public use to which the owner of such a place devoted his property, gives the Legislature a right to interfere’ when in its judgment ‘the public had an interest to prevent race discrimination between citizens, on the part of persons maintaining places of public amusement.’ Again in Aaron v. Ward, 203 N. Y. 351, 96 N. E. 736,38 L. R. A. (N. S.) 204, the court pointed out that the business of maintaining a theater cannot be regarded as strictly private, but has always been held subject to legislative control (citing cases). Yet, obviously, the mere fact that the public interest in preventing race discrimination between citizens in places of public resort, or in the maintenance of good order in such places justifies legislative regulation, which will reasonably tend to serve the public interest in these respects, is by no means decisive of the question of whether abuses reasonably to be feared from unrestricted and unregulated resales of theater tickets so closely affect the public interest as to place the regulation of the business of reselling tickets within the legislative control, to the extent of permitting the Legislature to limit the price which may be demanded or received upon such resale.

Section 167 of the statute recites that--

‘It is hereby determined and declared that the price of or charge for admission to theaters, 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.’

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11 cases
  • Tyson Bro United Theatre Ticket Offices v. Banton
    • United States
    • United States Supreme Court
    • February 28, 1927
    ...provision of teh 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, 143 N. E. 205, 38 A. L. R. 613) brought here on writ of error. That case, however, directly involved only section 168, requiring a license, and al......
  • New Jersey Ass'n of Ticket Brokers v. Ticketron
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 30, 1988
    ...921, 24 N.Y.S.2d 984 (N.Y.App.Div.1940), holding a New York statute valid which restricted the resale premium to $.75; People v. Weller, 237 N.Y. 316, 143 N.E. 205 (1924), aff'd sub nom. Weller v. New York, 268 U.S. 319, 45 S.Ct. 556, 69 L.Ed. 978 (1925), which held valid a statute restrict......
  • In re Opinion of the Justices
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 23, 1924
    ...found in actual trials in courts in other states are found to exist in kind in this commonwealth. See for example, People v. Weller, 237 N. Y. 316, 326-329, 143 N. E. 205. An attempt to safeguard the public against fraud and extortion in connection with sales of tickets to theaters and plac......
  • City of Seattle v. Bittner, 42080
    • United States
    • United States State Supreme Court of Washington
    • January 11, 1973
    ...v. Western Turf Ass'n, Supra; Hollywood Theatre Corp. v. Indianapolis, 218 Ind. 556, 34 N.E.2d 28 (1941); People v. Weller, 237 N.Y. 316, 143 N.E. 205, 38 A.L.R. 613 (1924), affirmed, 268 U.S. 319, 45 S.Ct. 556, 69 L.Ed. 978 (1925). See, 4 Am.Jur.2d Amusements and Exhibitions, § 12 (1962). ......
  • Request a trial to view additional results

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