Tyson Bro United Theatre Ticket Offices v. Banton

• Citation: 71 L.Ed. 718,273 U.S. 418,58 A.L.R. 1236,47 S.Ct. 426
• Decision Date: 28 February 1927
• Docket Number: No. 261,261
• Parties: TYSON & BRO.-UNITED THEATRE TICKET OFFICES, Inc., v. BANTON, Dist. Atty. of New York County, et al
• Court: United States Supreme Court

273 U.S. 418

47 S.Ct. 426

71 L.Ed. 718

TYSON & BRO.-UNITED THEATRE TICKET OFFICES, Inc.,

v BANTON, Dist. Atty. of New York County, et al.

No. 261.

Argued Oct. 6, 7, 1926.

Decided Feb. 28, 1927.

[Syllabus from pages 418-420 intentionally omitted]

Mr. Louis Marshall, of New York City, for appellant.

[Argument of Counsel from pages 420-426 intentionally omitted] Messrs. Robert P. Beyer and F. C. Benvenga, both of New York City, for appellees.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

Appellant is engaged in the business of reselling tickets of admission to theaters 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 theater or from other brokers and distributors. It is duly licensed under section 168, c. 590, Laws N. Y. 1922, and has given a bond under section 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, 45 S. Ct. 556, 69 L. Ed. 978.

Section 167 of chapter 590 declares that the price of or charge for admission to theaters, 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 theater, 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.¹

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 theater, etc., at a price in excess of 50 cents in advance of the printed 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 or rights of property,' we sustain the jurisdiction of the District Court. Packard v. Banton, 264 U. S. 140, 143, 44 S. Ct. 257, 68 L. Ed. 596, 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 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 although it was insisted that section 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 pass upon the other one. Weller v. New York, 268 U. S. 319, 325, 45 S. Ct. 556, 69 L. Ed. 978.

Strictly, the question for determination relates only to the maximum price for which an entrance ticket to a theater, etc., may be resold. But the answer necessarily must be to a question of greater breadth. The statutory declaration (section 167) is that the price of or charge for admission to a theater, 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 section 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 theater, 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, 21 L. Ed. 146, 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, 42 N. E. 837, 31 L. R. A. 522. The power to regulate property, servicesOr 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. 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. The latter, ordinarily, does not exist in respect of merely private property or business, Chesapeake & Potomac Tel. Co. v. Manning, 186 U. S. 238, 246, 22 S. Ct. 881, 46 L. Ed. 1144, but exists only where the business or the property involved has become 'affected with a public interest.' This phrase, first used by Lord Hale 200 years ago (Munn v. Illinois, 94 U. S. 113, 126, 24 L. Ed. 77), it is true, furnishes at best an indefinite standard, and attempts to define it have resulted, generally, in producing little more than paraphrases, which themselves require elucidation. Certain properties and kinds of business it obviously includes, like common carriers, telegraph and telephone companies, ferries, wharfage, etc. Beyond these, its application not only has not been uniform, but many of the decisions disclose the members of the same court in radical disagreement. Its full meaning, like that of many other generalizations, cannot be exactly defined-it can only be approximated.

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, 18 N. E. 245 1 L. R. A. 293, 6 Am. St. Rep. 389), 'not 'strictly' private' (Aaron v. Ward, 203 N. Y. 351, 356, 96 N. E. 736, 38 L. R. A. (N. S.) 204), 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 teh 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. The latter power is not only a more definite and serious invasion of the rights of property and the freedom of contract, but its exercise cannot always be justified by circumstances which have been held to justify legislative regulation of the manner in which a business shall be carried on.

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, 43 S. Ct. 630, 67 L. Ed. 1103, 27 A. L. R. 1280.

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 (page 535 (43 S. Ct. 632)), it was said that businesses...