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Opinion of the Court.

268 U.S.

normal usages of speech. It is incredible that after the conspicuous mention of the United States in the first place at the beginning of the section and the grant of a limited priority, Congress should have intended to smuggle in a general preference by muffled words at the end. The States are mentioned in (5) before the United States, showing that their laws were primarily in mind. The United States seems added to avoid some possibly overlooked case. The ordinary dignities of speech would have led to the mention of the United States at the beginning of the clause, if within its purview. Elsewhere in cases of possible doubt when the Act means the United States it says the United States. We are of opinion that to extend the definition of 'person’ here to the United States would be inconsistent with the context' and therefore is within the exception at the beginning of g 1. We are confirmed in our opinion by the fact that in earlier bankruptcy acts a priority was given to the United States in express terms, and that, for instance in the Act of March 2, 1867, c. 176, § 28; 14 Stat. 517, 530, 'Fifth ', persons entitled to priority by the laws of the United States are mentioned when the United States could not have been meant, having been fully secured by the same section, 'Second.' If it be legitimate to look at them (Schall v. Camors, 251 U. S. 239, 250) the bills that were before Congress when the present law was passed contained the clause relied upon but showed by their context that they could not refer to the United States. There was a change of purpose from that of the earlier acts. Guarantee Title & Trust Co. v. Title Guaranty & Surety Co., 224 U. S. 152, 158, et seq. Public opinion as to the peculiar rights and preferences due to the sovereign has changed. We agree with the view of this point taken by the Chief Justice and Justices Van Devanter and Clarke in United States Shipping Board Emergency Fleet Corporation v. Wood, 258 U. S. 549,


Argument for Plaintiff in Error.

574, at a time when it was not necessary for the majority to speak upon it. The priority claimed by the United States is not given to it by the law.

Decrees in 786 and 787 affirmed.

Decree in 1085 reversed.

MR. JUSTICE SUTHERLAND was absent and took no part in this decision.




No. 349. Argued April 28, 29, 1925.—Decided May 25, 1925.

1. A state law forbidding and penalizing the engaging without a license

in the business of re-selling theater tickets does not violate the

Fourteenth Amendment. P. 325. 2. The provisions of the New York General Business Law, as amended,

c. 590, 1922, requiring theater ticket brokers to give bond and obtain a license are separable and workable apart from those restricting the price at which the tickets may be resold, so that the validity of the former is independent of the validity of the latter.

Id. 207 App. Div. N. Y. 337; 237 N. Y. 316, affirmed.

ERROR to a judgment of the Court of Special Sessions of the City of New York adjudging the plaintiff in error guilty of reselling theater tickets without a license, entered after successive affirmances by the Supreme Court, Appellate Division, and the Court of Appeals.

Mr. Louis Marshall, for plaintiff in error.

Chapter 590 of the New York Laws of 1922 is unconstitutional and void, because it deprives the defendant of his liberty and property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States.

Argument for Plaintiff in Error.

268 U.S.

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That the business of a ticket broker is a lawful one, that the pursuit of it cannot be prohibited, directly or indirectly, and that theatre tickets constitute property in the constitutional sense of the term, has been expressly adjudicated. People ex rel. Tyroler v. Warden of the City Prison, 157 N. Y. 116; People ex rel. Fleischmann v. Caldwell, 64 App. Div. 46; affd. 168 N. Y. 671; People v. Marks, 64 Misc. Rep. 679; Collister v. Hayman, 183 N. Y. 250; Matter of Newman, 109 Misc. Rep. 622.

The whole theory of such legislation is vicious and dangerous, and the precedent that would be created by sustaining the act now under consideration would be an invasion of liberty, calculated to work lasting injury not only to the individual but to the public welfare. There are limitations on the power of the legislature to fix the price of commodities or of services, or to limit the right to contract with regard to them. People v. Budd, 117 N. Y. 15, affd. sub. nom. Budd v. New York, 143 U. S. 517; Adkins v. Children's Hospital, 261 U. S. 525; Adams v. Tanner, 244 U. S. 590; Fisher Co. v. Woods, 187 N. Y. 90; Producers Transportation Co. v. Railroad Commissioners, 251 U. S. 230; Michigan Public Utilities Commission v. Duke, 266 U. S. 570. Carefully adjudicated cases have denied the power of the legislature to fix the price of theatre tickets. People v. Newman, 109 Misc. 622; Ex parte Quarg, 149 Cal. 79; People v. Steele, 231 Ill. 340; City of Chicago v. Powers, 231 Ill. 531; People v. Weiner, 271 Ill. 74; Chicago v. Netcher, 183 Ill. 104.

The business of conducting a theatre, and consequently of selling or procuring tickets of admission, is not affected by a public interest, in the sense that the legislature may fix the price at which such tickets may be sold by brokers or limit the compensation chargeable by brokers for procuring them. Charles Wolff Packing Co. v. Court of industrial Relations, 262 U. S. 522; Dorchy v. Kansas, 264 U. S. 286.

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Argument for Plaintiff in Error.

Assuming that, if standing alone, that part of the statute requiring the taking out of a license and the giving of a bond could be sustained, the fact that, by compliance, the licensee would be estopped from questioning the other provisions, renders the act unconstitutional in its entirety; Musco v. United Surety Co., 196 N. Y. 459; Guffanti v. National Surety Co., 196 N. Y. 453; Russo v. Illinois Surety Co., 141 App. Div. 690; Huson v. Brown, 90 Misc. 175; Pierce v. Somerset Railway, 171 U. S. 641; Pullman Co. v. Kansas, 216 U. S. 56; Wall v. Parrot Silver & Copper Co., 244 U. S. 407; Pierce Oil Corp. v. Phoenix Refining Co., 259 U. S. 125; St. Louis Co. v. Prendergast Co., 260 U. S. 461; Matter of Cooper, 93 N. Y. 507; Embury v. Conner, 3 N. Y. 511; Mayor, etc. of New York v. Manhattan Railway Co., 143 N. Y. 1. If the licensing provision of the act standing by itself were constitutional, the defendant could not be charged with a misdemeanor for non-compliance therewith if the price-fixing clauses of the act are invalid and he would be precluded from attacking them, because of his compliance with the licensing provision.. Ex parte Young, 209 U. S. 123; Harrison v. St. Louis & San Francisco R. R. Co., 232 U. S. 318; Mercantile Trust Co. v. Texas, etc., Ry. Co., 216 Fed. 225. That a statute unconstitutional in a part essential and vital to its whole scheme cannot be enforced by the courts in its other provisions is likewise a well settled principle. Lemke v. Farmers Grain Co., 258 U. S. 50; International Textbook Co. v. Pigg, 217 U. S. 91; Hill v. Wallace, 259 U. S. 44; Pollock v. Farmers Loan & Trust Co., 158 U. S. 601; Howard v. Illinois Central R. R. Co., 207 U. S. 463; Sherrill v. O'Brien, 188 N. Y. 185; Hauser v. North British & Mercantile Ins. Co., 152 App. Div. 91. The provision in $ 174 of the statute " that in case it is judicially determined that any section of this article is unconstitutional or otherwise invalid, such determination

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shall not affect its validity or effect of the remaining provisions of the article” does not militate against the authorities considered under the foregoing subdivisions of this point. Hill v. Wallace, 259 U. S. 70. In none of the courts below was there any attempt to sever the license provision from the price-fixing provision.

Mr. Robert D. Petty, with whom Messrs. Joab H. Banton, District Attorney of New York County, and Felix C. Benvenga were on the brief, for defendant in

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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.* Section 168 directs: “No per

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* § 167. Matters of Public Interest. It is hereby determined and declared that the price of or charge for admission to theatres, 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.

$ 168. Reselling of Tickets of Admission; Licenses. No person, firm or corporation shall resell or engage in the business of reselling any tickets of admission or any other évidence of the right of entry to a theatre, 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 shall be granted upon a written application setting forth such information as the comptroller may require in order to enable him to carry into effect the provisions of this article and shall be accompanied by

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