George Sutherland

“ I think the proper course is to recognize that a state Legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain. ”

“ The most that can be said is that the theater and other places of entertainment, generally have been regarded as of high value to the people, to be encouraged, but, at the same time, regulated, within limits already stated. While theaters have existed for centuries and have been regulated in a variety of ways, and while price fixing by legislation is an old story, it does not appear that any attempt hitherto has been made to fix their charges by law. ”

“ They show, as I think, clearly, that the ticket brokers, by virtue or arrangements which they make with the theater owners, ordinarily acquire an absolute control of the most desirable seats in the theaters, by which they deprive the public of access to the theaters themselves for the purpose of buying such tickets at the regular prices, and are enabled to exact an extortionate advance in prices for the sale of such tickets to the public. ”

“ The contention that, historically considered, places of entertainment may be regarded as so affected with a public interest as to justify legislative regulation of their charges, does not seem to us impressive. It may be true, as asserted, that, among the Greeks, amusement and instruction of the people through the drama was one of the duties of government. ”

“ That such evils exist in some degree in connection with the theatrical business and its ally, the ticket broker, is undoubtedly true, as it unfortunately is true in respect of the same or similar evils in other kinds of business. But evils are to be suppressed or prevented by legislation which comports with the Constitution, and not by such as strikes down those essential rights of private property protected by that instrument against undue governmental interference. ”

“ A theater, of course, may be regulated so as to preserve the public peace, insure good order, protect public morals, and the like. A license may be required, but such a license is not a franchise, which puts the proprietor under the duty of furnishing entertainment to the public, or, if furnished, of admitting every one who applies. ”

“ The decision proceeds upon the ground that the insurance business is to be distinguished from ordinary private business; that an insurance company, in effect, is an instrumentality which gathers funds upon the basis of equality of risk from a great number of persons-sufficiently large in number to cause the element of chance to step out and the law of averages to step in as the controlling factor-and holds the numerous amounts so collected as a general fund to be paid out to those who shall suffer losses. Insurance companies do not sell commodities ”

“ Sales of theater tickets bear no relation to the commerce of the country, and they are not interdependent transactions, but stand, both in form and effect, separate and apart from each other, 'terminating in their effect with the instances.' And certainly a place of entertainment is in no legal sense a public utility ”

“ It is not whether there is constitutional power to fix the price which theater 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. ”

“ 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 bargaining struggle that serious economic consequences result to a very large number of members of the community. ”

“ Certainly there is no profession, possibly no business, which does not offer peculiar opportunities for reprehensible practices; and as to every one of them, no doubt, some can be found quite ready earnestly to maintain that its suppression would be in the public interest. Skillfully directed agitation might also bring about apparent condemnation of any one of them by the public. ”

“ The former expression is convenient, to be sure, to conciliate the mind to something that needs explanation; the fact that the constitutional requirement of compensation when property is taken cannot be pressed to its grammatical extreme; that property rights may be taken for public purposes without pay if you do not take too much; that some play must be allowed to the joints if the machine is to work. But police power often is used in a wide sense to cover and, as I said, to apologize for the general power of the Legislature to make a part of the community uncomfortable by a change. ”

“ A virtual monopoly of the best seats, usually the first 15 rows, is thus acquired, and the brokers are enabled to demand extortionate prices of theater goers. Producers and theater 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. ”

“ Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.'
The evil of collusive alliances between the proprietors of theaters and ticket brokers or scalpers seems to have been effectively dealt with in Illinois by an ordinance which required (1) that the price of every theater ticket shall be printed on its face and (2) that no proprietor, employee, etc., of a theater shall receive or enter into any arrangement or agreement to receive more. ”

“ The producer or theater 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 in the marketing process, from reselling the ticket at an advance of more than 50 cents above the printed price. [2] Nor is it contended that this limit on the profit is unreasonable. It appears affirmatively that the business is now being carried on profitably by ticket brokers under this very restriction. ”

“ That it is 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. ”

“ 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 exorbitant prices made possible by the strategic position of a group of intermediaries in the distribution of a product from producer to consumer. ”

“ It is not permissible to enact a law which, in effect, spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrongdoers also may be caught. ”

“ Certain occupations, regarded as exceptional, the public interest attaching to which recognized from earliest times, has survived the period of arbitrary laws by Parliament or colonial Legislatures for regulating all trades and callings. ”

“ Of the propriety of legislative interference within the scope of legislative power, the Legislature 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, 34 S.C.t. 612, 618 (58 L. Ed. 1011, L. R. A. 1915C, 1189) :
'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 ”

“ The effect of insurance-indeed, it has been said to be its fundamental object-is to distribute the loss over as wide an area as possible. In other words, the loss is spread over the country, the disaster to an individual is shared by many, the disaster to a community shared by other communities ”

“ 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. ”

“ Section 1534, Penal Law (as added by Laws 1921, c. 12) , makes it a misdemeanor for brokers to sell tickets on the street. Acts and 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. 597, 143 N. E. 808. Pub. Acts Conn. 1923, c. 48; New Jersey Laws 1923, c. 71; Penal Code Cal. § 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. ”

“ There are about 60 first-class theaters in the borough of Manhattan. Brokers annually sell about 2,000,000 tickets, principally for admission to these theaters. Appellant sells 300,000 tickets annually. ”

“ St. Rep. 321. A license ordinance of ticket peddlers was also declared invalid in California. Ex parte Dees, 46 Cal. App. 656, 189 P. 1050. 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, 119 N. E. 41, L. R. A. 1918D, 382. See, also, Laws Ill. 1923, p. 322.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105) . ”