273 U.S. 418 (1927), 261, Tyson & Brother v. Banton

Docket Nº:No. 261
Citation:273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718
Party Name:Tyson & Brother v. Banton
Case Date:February 28, 1927
Court:United States Supreme Court

Page 418

273 U.S. 418 (1927)

47 S.Ct. 426, 71 L.Ed. 718

Tyson & Brother



No. 261

United States Supreme Court

Feb. 28, 1927

Argued October 6, 7, 1926




1. Sections 167 and 172, c. 590, N.Y.Laws.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

Page 419

presented, viz., the validity of the price restriction on resales of tickets. P. 429.

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.

Page 420

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 cannot 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.


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.

Page 426

SUTHERLAND, J., lead opinion

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.

Page 427

Section 167 of chapter 590 declares that the price of or charge for admission to theatres, etc., is a matter affected with a public interest, and subject to state supervision in order to safeguard the public against fraud, extortion, exorbitant rates, and similar abuses. Section 172 forbids 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," such printing being required by that section. Both sections are reproduced in the margin. *

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

Page 428

price. The bill alleges threats on the part of appellees to enforce the statute against appellant, to forfeit its license, enforce the penalty of its bond and institute criminal prosecutions against appellant, its officers and agents. It is further alleged that the terms of the statute are so drastic, and the penalties for its violation so great [imprisonment for one year or a fine of $250 or both], that appellant may not resell any ticket or evidence of the right of entry at a price beyond that fixed by the statute even for the purpose of testing the validity of the law, and that appellant will be compelled to submit to the statute whether valid or invalid unless its suit be entertained, and thereby will be deprived of its property and liberty without due process of law and denied the equal protection of the law, in contravention of the Fourteenth Amendment to the federal Constitution. Following the rule frequently announced by this court, that

equitable jurisdiction exists to restrain criminal prosecutions under unconstitutional enactments, when the prevention of such prosecutions is essential to the safeguarding of rights of property,

we sustain the jurisdiction of the district court. Packard v. Banton, 264 U.S. 140, 143, and cases there cited.

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

Page 429

pass upon the other one. Weller v. New York, 268 U.S. 319, 325.

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 matter affected with a public interest. To affirm the validity of § 172 is to affirm this declaration completely, since...

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