Weller v. People of the State of New York

• Citation: 268 U.S. 319,69 L.Ed. 978,45 S.Ct. 556
• Decision Date: 25 May 1925
• Docket Number: No. 349,349
• Parties: WELLER v. PEOPLE OF THE STATE OF NEW YORK
• Court: United States Supreme Court

268 U.S. 319

45 S.Ct. 556

69 L.Ed. 978

WELLER

v PEOPLE OF THE STATE OF NEW YORK.

No. 349.

Argued April 28, 29, 1925.

Decided May 25, 1925.

Mr. Louis Marshall, of New York City, for plaintiff in error.

[Argument of Counsel from pages 319-321 intentionally omitted] Messrs. Robert D. Petty and Felix C. Benvenga, Asst. Dist. Atty., both of New York City, for the People of the State of New York.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

Chapter 590, New York Laws 1922, added eight sections, 167-174, to the General Business Law of the State. They are copied in the margin.¹ Section 168 directs:

'No person firm or corporation shall resell or engage 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.'

And section 173 declares every violation of the inhibition shall be a misdemeanor.

By an information in the Court of Special Sessions, New York City, the District Attorney accused plaintiff in error of engaging in the business of reselling theater tickets without the license required by law. The evidence showed he was engaged in the business, and it was conceded he had never taken out a license or complied with chapter 590. His defense rested upon the claim that the statute is repugnant to the Fourteenth Amendment. The trial court adjudged him guilty and imposed a fine of $25. This was affirmed by the Appellate Division and by the Court of Appeals. People v. Weller, 207 App. Div. 337, 202 N. Y. S. 149; Id., 237 N. Y. 316, 143 N.E. 205. In an extended opinion the latter court upheld the challenged enactment, but said nothing of the possibility of sustaining the license provisions if those relating to resale prices were invalid.

Counsel for plaintiff in error now insists that the two provisions are inseparable; that those which undertake to establish resale prices are clearly invalid; and, consequently, the whole act must fall. On the contrary, counsel for the prople maintain that the power of the state to require such licenses is clear and that we need not determine the validity of the price restrictions.

It is not, and we think it cannot, seriously be urged that the state lacked power to require licenses of those engaging in the business of reselling theater tickets. The conviction and sentence were for failure to observe that requirement. In the absence of an authoritative announcement of another view by some court of the state we shall hold this provision severable and valid. Brazee v. Michigan, 241 U. S. 340, 36 S. Ct. 561, 60 L. Ed. 1034, Ann. Cas. 1917C, 522. The statute itself declares (section 174):

'In case it be judicially determined that any section of this article is unconstitutional or otherwise invalid, such determination shall not affect the validity or effect of the remaining provisions of the article.'

If section 172, which restricts resale prices, were eliminated, a workable plan would still remain. See Dorchy v. Kansas, 264 U. S. 286, 44 S. Ct. 323, 68 L. Ed. 686.

The judgment of the court below is affirmed.

1 Sec. 167. Matters of Public Interest. 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.

Sec. 168. Reselling of Tickets of Admission; Licenses. No person, firm or corporation shall resell or engage in the business or 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. Such license shall be granted upon the payment by or on behalf of the applicant of a fee of one hundred dollars and shall be renewed upon the payment of a like fee annually. Such license shall not be transferred or assigned, except by permission of the comptroller. Such license shall run to the first day of January next ensuing the date thereof, unless sooner revoked by the comptroller. Such license...