State v. Thompson

• Decision Date: 06 February 1906
• Citation: 84 P. 476,47 Or. 492
• Parties: STATE v. THOMPSON.
• Court: Oregon Supreme Court

84 P. 476

47 Or. 492

STATE v. THOMPSON.

Supreme Court of Oregon

February 6, 1906

Appeal from Circuit Court, Multnomah County; A.L. Frazer, Judge.

C.H Thompson was convicted of violating the anti-scalping act and appeals. Affirmed.

This is an appeal from a judgment of conviction for violating what is commonly known as the anti-scalping act, passed at the last session of the Legislature, and found on page 422 of the Session Laws of 1905. The act provides in substance as follows: Section 1: That it shall be the duty of the owner or owners or person or persons operating a railroad to provide every agent who may be authorized to sell its tickets or other evidence of a right to travel upon any railroad with a certificate setting forth the authority of such agent to make such sale, which certificate must be duly attested and signed. Section 2: That every agent, person, firm, or corporation engaged in selling, issuing, or dealing in railroad passenger transportation in this state must have a fixed place of business, and keep the certificate mentioned in section 1 posted in a conspicuous place therein. Section 3: That it shall be unlawful for any person mentioned in section 2, who is not possessed of and has not posted the certificate mentioned, to sell, exchange, or transfer or offer for sale, exchange, or transfer, the whole or any part of a railroad ticket or pass or other evidence of a right to travel on any railroad, whether the same is situated within or without the limits of this state. Section 4: That it shall be unlawful for any person named in section 2 to set up establish, or maintain, conduct, or operate within the state any office or other place for the sale, exchange, or transfer of railroad tickets, or any part thereof, or passes or any other evidence of a right to travel on any railroad within or without the limits of the state, unless such person is possessed of and has posted the certificate above mentioned. Section 5 makes the displaying of any sign bearing certain words, without having posted the certificate as above mentioned, sufficient evidence to establish a prima facie case against the owner, proprietor, employé, or person in charge of said office or place of business. Section 6 provides a penalty for the violation of sections 1, 2, 3, and 4. Section 7 requires the owner or person operating any railroad in this state or any railroad doing business therein to redeem, upon presentation by the lawful holder thereof the whole or any part of any unused ticket, and how such redemption shall be made, and the time within which it must be presented for redemption. Section 8 provides a penalty for refusal, neglect, or failure to redeem as provided in section 7.

Martin L. Pipes, John F. Logan, and Henry E. McGinn, for appellant.

John Manning, Dist. Atty., and Dan J. Malarkey, for the State.

HAILEY J. (after stating the facts).

The only question raised on this appeal is the constitutionality of the foregoing act. It is claimed: First. That it violates the following sections of article 1 of the state Constitution: Section 10, which declares that "every man shall have remedy by due course of law for injury done him in person, property, or reputation." Section 20, which declares, "No law shall be passed to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." And section 21, which declares, "No ex post facto law, or law impairing the obligations of contracts, shall ever be passed, nor shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution." Second. That it violates the fourteenth amendment to the Constitution of the United States, which provides that no state shall deprive any person of liberty or property without due process of law; and also violates section 8 of article 1 of the Constitution of the United States, which gives to Congress the power to regulate commerce among the several states. In this opinion, for brevity and clearness, we will apply the word "ticket" to all kinds of railroad transportation mentioned in the act, and use the word "railroad" as synonymous with the words in the act, owner or operator of any railroad. Before discussing the various contentions made by the defendant as above set forth, we deem it necessary to ascertain the effect of this law, and then will consider the question whether or not it violates any of the above provisions of our state and federal Constitutions.

1. It is contended on the part of counsel for appellant that this act does not prohibit the ticket brokerage business, but permits it when done by one having the certificate provided for in the act, and only makes it a crime when done by one not holding such certificate. Such a construction of the law gives no force to the relation of principal and agent necessarily created by the appointing certificate. The holder of such certificate is the agent of the railroad issuing the same, and his acts in selling, issuing, and dealing in tickets are the acts of his principal and binding upon such principal, and are not the acts of such agent in his individual capacity acting upon his own account. Again, such a construction also gives to the agent authority not warranted by the terms of the act, by imputing to him the right to deal generally in all tickets, whether issued by the railroad appointing him its agent, or some other railroad. By the terms of this act the agent is expressly limited in his authority to sell, issue, or deal in tickets issued by the railroad appointing him, and has no authority by virtue of a certificate from one railroad to sell or deal in the transportation of another railroad from which he holds no certificate. The agent, as well as the railroad appointing him, is limited to selling, issuing, and dealing in its tickets, and such agent must do so as its agent, and cannot deal in tickets of another railroad for which he is not agent. The right to issue, sell, and deal in railroad transportation is thus limited to the railroad acting through its agents, and it follows that when done by a ticket broker or other person not authorized and acting as agent for the railroad, such transactions are unlawful and punishable under this act, and thus prohibited thereby.

2. The question, then, is: Does this law violate any of the constitutional provisions above mentioned? It is argued by counsel for the defendant that it takes property without due process of law. Defendant contends that the purchaser of a transferable ticket has a right to do with it as he pleases, and that to limit his right to sell or otherwise dispose of it is depriving him of his property therein without due process of law. It does not deprive the purchaser of a ticket of his property. It only limits the manner in which he shall use such property. It is one thing to take away the property of a person, and another to limit his use of such property. In the case of the purchase of a railroad ticket, the railroad sells it to the purchaser for the purpose of transportation over the lines of the seller, and not for barter or trade in the market, and he is not deprived of his property therein so long as he has the right to use it for the purpose for which it was sold to him, and the presumption is that he purchased it for the purpose for which it was sold. In addition to the right to use it for its original purpose, the act in question gives him the additional right to compel the seller to redeem it, in the event the purchaser fails to use it, if...