| Tyson & Brother v. Banton
(No. 261)
Reversed. |
||||
|---|---|---|---|---|
| Syllabus
| Opinion
[ Sutherland ] | Dissent
[ Holmes ] | Dissent
[ Stone ] | Dissent
[ Sanford ] |
| HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version |
Tyson & Brother v. Banton
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
MR. JUSTICE STONE, dissenting.
I can agree with the majority that
constitutional principles, applied as they are written, it must be assumed, 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.
But I find nothing written in the Constitution, and nothing in the case or common law development of the Fourteenth Amendment, which would lead me to conclude that the type of regulation attempted by the State of New York is prohibited.
The scope of our inquiry has been repeatedly defined by the decisions of this Court. As was said in Munn v. Illinois, 94 U.S. 113, 132, by Chief Justice Waite,
For us, the question is one of power, not of expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void because in excess of the legislative power of the state. But if it could, we must presume it did. Of the propriety of legislative interference within the scope of legislative power the legislature [p448] is the exclusive judge.
The attitude in which we should approach new problems in the field of price regulation was indicated in German Alliance Ins. Co. v. Kansas, 233 U.S. 389, 409:
Against that conservatism of the mind which puts to question every new act of regulating legislation and regards the legislation invalid or dangerous until it has become familiar, government -- state and National -- has pressed on in the general welfare, and our reports are full of cases where, in instance after instance, the exercise of the regulation was resisted, and yet sustained against attacks asserted to be justified by the Constitution of the United States. The dread of the moment having passed, no one is now heard to say that rights were restrained or constitutional guarantees impaired.
Again, in sustaining the constitutionality of a zoning ordinance under the Fourteenth Amendment, this Court has recently said,
Regulations the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.
Village of Euclid v. Ambler Realty Co., 272 U.S. 365.
The question with which we are here concerned is much narrower than the one which has been principally discussed by the Court. It is not whether there is constitutional power to fix the price which theatre owners and producers may charge for admission. Although the statute in question declares that the price of tickets of admission to places of amusement is affected with a public interest, it does not purport to fix prices of admission. The producer or theatre proprietor is free to charge any price he chooses. The statute requires only that the sale price, whatever it is, be printed on the face of the ticket, and prohibits the licensed ticket broker, an intermediary [p449] in the marketing process, from reselling the ticket at an advance of more than fifty cents above the printed price. [n1] Nor is it contended that this limit on the profit is unreasonable. It appear affirmatively that the business is now being carried on profitably by ticket brokers under this very restriction. But if it were not, there could be judicial relief without affecting the constitutionality of the measure. In these respects, the case resembles Munn v. Illinois, supra, where.the attempt was not to fix the price of grain, but to fix the price of the service rendered by the proprietors of grain elevators in connection with the transportation and distribution of grain, the cost of which entered into the price ultimately paid by the consumer. The statute there, as the statute here, was designed in part to protect a large class of consumers from [p450] exorbitant prices made possible by the strategic position of a group of intermediaries in the distribution of a product from producer to consumer.
There are about sixty first class theatres in the borough of Manhattan. Brokers annually sell about two million tickets, principally for admission to these theatres. Appellant sells three hundred thousand tickets annually. The practice of the brokers, as revealed by the record, is to subscribe, in advance of the production of the play and frequently before the cast is chosen, for tickets covering a period sf eight weeks. The subscriptions must be paid two weeks in advance, and about twenty-five percent. of the tickets unsold may be returned. A virtual monopoly of the best seats, usually the first fifteen rows, is thus acquired, and the brokers are enabled to demand extortionate prices of theatre goers. Producers and theatre proprietors are eager to make these advance sales, which are an effective insurance against loss arising from unsuccessful productions. The brokers are in a position to prevent the direct purchase of tickets to the desirable seats, and to exact from the patrons of the successful productions a price sufficient to pay the loss of those which are unsuccessful, plus an excessive profit to the broker.
It is undoubtedly true, as a general proposition, that one of the incidents of the ownership of property is the power to fix the price at which it may be disposed. It may be also assumed that, as a general proposition, under the decisions of this Court, the power of state governments to regulate and control prices may be invoked only in special and not well defined circumstances. But when that power is invoked in the public interest and in consequence of the gross abuse of private right disclosed by this record, we should make searching and critical examination of those circumstances which in the past have been deemed sufficient to justify the exercise of the power before concluding that it may not be exercised here. [p451]
The phrase "business affected with a public interest" seems to me to be too vague and illusory to carry us very far on the way to a solution. It tends in use to become only a convenient expression for describing those businesses regulation of which has been permitted in the past. To say that only those businesses affected with a public interest may be regulated is but another way of stating that all those businesses which may be regulated are affected with a public interest. It is difficult to use the phrase free of its connotation of legal consequences, and hence, when used as a basis of judicial decision, to avoid begging the question to be decided. The very fact that it has been applied to businesses unknown to Lord Hale, who gave sanction to its use, should caution us against the assumption that the category has now become complete or fixed, and that there may not be brought into it new classes of business or transactions not hitherto included in consequence of newly devised methods of extortionate price exaction.
The constitutional theory that prices normally may not be regulated rests upon the assumption that the public interest and private right are both adequately protected when there is "free" competition among buyers and sellers, and that, in such a state of economic society, the interference with so important an incident of the ownership of private property as price-fixing is not justified, and hence is a taking of property without due process of law.
Statutory regulation of price is commonly directed toward the prevention of exorbitant demands of buyers or sellers. An examination of the decisions of this Court in which price regulation has been upheld will disclose that the element common to all is the existence of a situation or a combination of circumstances materially restricting the regulative force of competition, so that buyers or sellers are placed at such a disadvantage in the [p452] bargaining struggle that serious economic consequences result to a very large number of members of the community. Whether this situation arises from the monopoly conferred upon public service companies or from the circumstance that the strategical position of a group is such as to enable it to impose its will in matters of price upon those who sell, buy or consume, as in Munn v. Illinois, supra; or from the predetermination of prices in the councils of those who sell, promulgated in schedules of practically controlling constancy, as in German Alliance Ins. Co. v. Kansas, supra, or from a housing shortage growing out of a public emergency as in Block v. Hirsh, 256 U.S. 135; Marcus Brown Co. v. Feldman, 256 U.S. 170; Levy Leasing Co. v. Siegel, 258 U.S. 242; cf. Chastleton Corp. v. Sinclair, 264 U.S. 543, the result is the same. Self interest is not permitted to invoke constitutional protection at the expense of the public interest and reasonable regulation of price is upheld.
That should be the result here. We need not attempt to lay down any universal rule to apply to new and unknown situations. It is enough for present purposes that this case falls within the scope of the earlier decisions, and that the exercise of legislative power now considered was not arbitrary. The question, as stated, is not one of reasonable prices, but of the constitutional right in the circumstances of this case to exact exorbitant profits beyond reasonable prices. The economic consequence of this regulation upon individual ownership is no greater, nor is it essentially different from, that inflicted by regulating rates to be charged by laundries, Oklahoma Operating Co. v. Love, 252 U.S. 331 (semble), by anti-monopoly laws, Sunday laws, usury statutes, Griffith v. Connecticut, 218 U.S. 563; Workmen's Compensation Acts, New York Central R.R. v. White, 243 U.S. 188; the zoning ordinance upheld in Village of Euclid v. Ambler Realty Co., supra; or state statutes restraining the owner of land [p453] from leasing it to Japanese or Chinese aliens, upheld in Terrace v. Thompson, 263 U.S. 197; Webb v. O'Brien, 263 U.S. 313; or state prohibition laws upheld in Mugler v. Kansas, 123 U.S. 623; or legislation prohibiting option contracts for future sales of grain, Booth v. Illinois, 184 U.S. 425, or invalidating sales of stock on margin or for "futures," Otis v. Parker, 187 U.S. 606; or statutes preventing the maintenance of pool parlors, Murphy v. California, 225 U.S. 623, or in numerous other cases in which the exercise of private rights has been restrained in the public interest. Noble State Bank v. Haskell, 219 U.S. 104; Central Lumber Co. v. South Dakota, 226 U.S. 157; St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269; Terminal Taxicab Co. v. Dist. of Columbia, 241 U.S. 252; Mutual Loan Co. v. Martell, 222 U.S. 225; Schmidinger v. Chicago, 226 U.S. 578; cf. Green v. Frazier, 253 U.S. 233; National Ins. Co. v. Wanberg, 260 U.S. 71; Clark v. Nash, 198 U.S. 361. Nor is the exercise of the power less reasonable because the interests protected are in some degree less essential to life than some others. Laws against monopoly which aim at the same evil and accomplish their end by interference with private rights quite as much as the present law are not regarded as arbitrary or unreasonable or unconstitutional because they are not limited in their application to dealings in the bare necessities of life.
The problem sought to be dealt with has been the subject of earlier legislation in New York, and has engaged the attention of the legislators of other states. [n2] That it is [p454] one involving serious injustice to great numbers of individuals who are powerless to protect themselves cannot be questioned. Its solution turns upon considerations of economics about which there may be reasonable differences of opinion. Choice between these views takes us from the judicial to the legislative field. The judicial function ends when it is determined that there is basis for legislative action in a field not withheld from legislative power by the Constitution as interpreted by the decisions of this Court. Holding these views, I believe the judgment below should be affirmed.
MR. JUSTICE HOLMES and MR. JUSTICE BRANDEIS join in this dissent.
1. Turning to the broader question, the public importance of theatres has been manifested in regulatory legislation in this country from the earliest times. Beale, Innkeepers, § 325n; Cecil v. Green, 161 Ill. 265, 268. In New York, physical construction of theatres with respect to fire escapes, exits and seating is regulated, Village Law, § 90, par. 25; licenses to produce shows are required, Town Law, § 217; Sunday entertainments of certain kinds, Penal Code, § 2145, cf. People v. Hoym, 20 How.Prac. 76; Newendorff v. Duryea, 6 Daly 276; discrimination because of race or color, Penal Code, § 514, People v. King, 110 N.Y. 418, or against persons wearing United States uniforms, Penal Code, § 517; appearance of children under fourteen upon the stage, People v. Ewer, 141 N.Y. 129; admission of children under sixteen, Penal Code, § 484; presentation of certain types of exhibitions, Penal Code, §§ 831, 833; or immoral shows and exhibitions, Penal Code, § 1140a; or plays in which a living character represents the Deity, Penal Code, § 2074; are all prohibited. Section 3657, Page, Ohio Gen.Code, empowering municipalities to require licensing of theatrical exhibitions and theatre ticket selling, and § 12600-2 et seq., regulating physical construction, etc., are typical of present day statutes. This Court has upheld legislation regulating admissions to public entertainments, Western Turf Association v. Greenberg, 204 U.S. 359, and providing for censorship of motion pictures, Mutual Film Corp. v. Ohio Industrial Commission, 236 U.S. 230.
2. An earlier ordinance of New York City, substantially similar to the present act, was construed in People v. Newman, 109 Misc. 622, overruled by People v. Weller, 237 N.Y. 316. Section 1534 Penal Code, makes it a misdemeanor for brokers to sell tickets on the street.
Acts & Resolves of Mass. 1924, c. 497, controlling resale of tickets with maximum brokerage charges similar to the New York statute, was approved in Opinion of Justices, 247 Mass. 497. Conn.Pub.Acts, 1923, c. 48; New Jersey Laws 1923, c. 71; Cal.Penal Code, § 526, make it a misdemeanor to sell tickets in excess of the printed price. The California Act was declared unconstitutional in Ex parte Quarg, 149 Cal. 79. A similar statute in Illinois was held invalid, People v. Steele, 231 Ill. 340. A license ordinance of ticket peddlers was also declared invalid in California. Ex parte Dees, 46 Cal.App. 656. Those enactments are clearly more drastic than the New York statute. A Chicago ordinance prohibiting secret alliances and profit sharing between proprietors and scalpers was upheld. People v. Thompson, 283 Ill. 87. See also Laws of Ill.1923, p. 322.