In re Opinion of the Justices

• Decision Date: 23 April 1924
• Citation: 247 Mass. 589,143 N.E. 808
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 589

143 N.E. 808

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 23, 1924.

In the matter of answers to questions propounded by the Senate, as follows:

‘Whereas, there is pending in the Senate a bill entitled ‘An act to regulate the sale and resale of tickets to theaters and other places of public amusement or entertainment,’ printed as House No. 1038, a copy of which is herewith submitted;¹ and ‘Whereas, doubt exists as to the constitutionality of said bill, if enacted into law: Accordingly be it

‘Ordered, that the Senate require the opinions of the honorable the Justices of the Supreme Judicial Court on the following important questions of law:

‘(1) May the General Court, if it finds that prices and other conditions attending the sale of tickets of admission to theaters or other public places of amusement, requiring a license under section 181 of chapter 140 of the General Laws, are matters affected with a public interest, and that legislation is necessary for the purpose of safeguarding the public against fraud extortion, exorbitant rates, and like abuses in relation thereto, constitutionally enact legislation:

‘(A) Requiring that the price at which such tickets may be sold shall be printed on the face thereof?

‘(B) Requiring that no ticket shall be sold or resold at a price in excess of that printed on the face thereof?

‘(C) Requiring that the business of reselling such tickets, commonly known as ‘ticket scalping,’ may be subjected to reasonable regulation under the police power?

‘(D) Requiring that such business shall be licensed?

‘(E) Requiring that the price at which tickets are resold by persons engaging in such business shall be stamped upon the ticket?

‘(F) Imposing a limit, reasonably calculated to prevent extortion, but affording a reasonable profit, on the resale price of such tickets by persons engaging in such business?

‘(2) Would said bill, if enacted, be constitutional?’

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions in the order of March 28, 1924, copy whereof is hereto annexed.

The question are considered on the footing that the General Court as set forth in the order will find or has already found that the subject with which the statute deals is affected with a public interest and that the proposed statute is necessary for the protection of the public against fraud, extortion and similar abuses in the sale of tickets of admission to theaters and other places of public amusement. Such determination is not conclusive that the proposed regulation is justified. The nature and extent of the public interest and of the exertion of the police power touching it are always a subject for judicial inquiry. Opinion of the Justices, 207 Mass. 601, 604, 94 N. E. 558,34 L. R. A. (N. S.) 604;Chas. Wolff Packing Co. v. Industrial Court, 262 U. S. 522, 536, 43 Sup. Ct. 630, 67 L. Ed. 1103, 27 A. L. R. 1280.

[2] Broadly stated, the questions relate to regulation of the sale of tickets to theaters and other places of public amusement. Some aspects of the proposed statute deal with the fixing of the price with reference to original cost to be charged for the resale by brokers of tickets of admission to such resorts. We accept as the controlling principle a recent pronouncement by the Supreme Court of the United States:

‘There is, of course, no such thing as absolute freedom of contract. It is subject to a great variety of restraints. But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.’ Adkins v. Children's Hospital, 261 U. S. 525, 546, 43 Sup. Ct. 394, 67 L. Ed. 785, 24 A. L. R. 1238.

The right to set up and maintain theaters and other places of public amusement is not natural and inherent. Working by an artisan at his trade, carrying on an ordinary business, or engaging in a common occupation or calling cannot be subjected to a license fee or excise. These plainly are not affected with a public interest. Gleason v. McKay, 134 Mass. 419, 425. O'Keeffe v. Somerville, 190 Mass. 110, 112, 113, 76 N. E. 457,5 Ann. Cas. 654,112 Am. St. Rep. 316.Chas. Wolff Packing Co. v. Industrial Court, 262 U. S. 522, 43 Sup. Ct. 630, 67 L. Ed. 1103, 27 A. L. R. 1280. Theaters and places of public amusement as to maintenance and operation are different in nature. Without undertaking to trace the history of the stage in this commonwealth, it may be regarded as common knowledge that it was not favored by the temper of the times in colonial and early provincial Massachusetts. Probably as soon as there appeared a disposition to set up and patronize playhouses, they were strictly forbidden. By Prov. Laws 1749-50, c. 24, stage plays and other theatrical entertainments were forbidden. That act by its terms was to continue in force for five years. It was extended by Prov. Laws 1769-70, c. 12; 1770-71, c. 5; 1775-76, c. 14; 1779-80, c. 18, at least until November 1, 1785. Reports of discussions of that period show that the inhibitory act was thought to have continued in force until 1797 and that prosecutions occurred after 1790. In any event, it was operative for a considerable time after the adoption of the Constitution. Apparently, after the expiration of the last prohibitory statute, there was no further legislation until St. 1805, c. 98. All theatrical entertainments without a license by public authorities were prohibited by that statute. The subject has since been continuously regulated. It has been the practice of this commonwealth for more than a century to treat the maintenance of such places as a special and peculiar business upon which an excise, as distinguished from a general tax, might rightly be levied. It was held in 1830 that the constitutionality of such a statute was not open to doubt. Boston v. Schaffer, 9 Pick. 415. To the same effect are recent decisions. Commonwealth v. McGann, 213 Mass. 213, 100 N. E. 355;Mutual Film Corp. v. Ohio Industrial Commission, 236 U. S. 230, 35 Sup. Ct. 387, 59 L. Ed. 552, Ann. Cas. 1916C, 296.

[4] Numerous reasons lead to the conclusion that the maintenance of theaters and other places of amusement is for the use of the public and affected with a public interest. The character of the performances presented has an intimate connection with the preservation and promotion of public morality. Some theatrical presentations are injurious and some are beneficial to public morals. Although their entertaining and recreative features are commonly more emphasized than any other, they also have or are susceptible of distinctly educative functions. Some are highly instructive and enlightening. Some inspire emotions of patriotism, philanthropy and good will. They have a tendency to gather at one time large numbers of people under a single roof and under comparatively crowded conditions. These factors have intimate relation to the health, safety and good order of the community. In these particulars such places require constant supervision and inspection in the interests of the public at large in order to prevent disaster by fire and accident, spread of disease and general and individual disorder and crime. The construction and maintenance of buildings devoted to such uses demand approval and oversight by public officers acting for the general welfare. There can be no doubt as to the validity of a statute denouncing under penalty discrimination on account of race or color in admission to theaters and other places of amusement. G. L. c. 272, § 98. Bryant v. Rich's Grill, 216 Mass. 344, 103 N. E. 925, Ann. Cas. 1915B, 869. Other regulations as to the admission of persons to places of amusement have been upheld. Western Turf Association v. Greenberg, 204 U. S. 359, 27 Sup. Ct. 384, 51 L. Ed. 520.

In the light of their history in this commonwealth, but without resting wholly upon that ground, we are of opinion that theaters and other places of public amusement are affected with a public interest and devoted to a public use. There are decisions in other jurisdictions to this effect. People v. King, 110 N. Y. 418, 428,18 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389; Donnell v. State, 48 Miss. 661, 680, 681,12 Am. St. Rep. 375;Aaron v. Ward, 203 N. Y. 351, 356,96 N. E. 736,38 L. R. A. (N. S.) 204. See Civil Rights Cases, 109 U. S. 3, 41, 42, 3 Sup. Ct. 18, 27 L. Ed. 835.

Such kinds of business fall either in the class which can be carried on only by authority of a public grant with the correlative duty of rendering public service, or in that exceptional class recognized for historical reasons as impressed with a public interest, like money lenders, ‘keepers of inns, cabs and grist mills.’ Chas. Wolff Packing Co. v. Industrial Court, 262 U. S. 522, 535, 43 Sup. Ct. 630, 67 L. Ed. 1103,27 A. L. R. 128;Commissioner of Banks v. Prudential Trust Co., 242 Mass. 78, 88, 136 N. E. 410. See German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 425, 426, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189.

[5][6][7] The circumstance that a business is affected with a public interest does not make legally possible every legislative regulation. All such regulations must be reasonable in their nature, directed to the prevention of real evils and adapted to the accomplishment of their avowed purpose. Under the guise of protecting the general welfare there cannot be arbitrary interference with business or irrational or unnecessary restriction. When it becomes established that a business is subject to legislative regulation because affected with a public interest and devoted to a public use, incidental and accessory features reasonable in scope and fair in aim fall under the same rule. State v. Corbett, 57 Minn. 345, 349, 59 N. W. 317,24 L. R. A. 498.

A statute requiring the one issuing a ticket...