Tyson & Bro. v. Banton
273 U.S. 418 (1927)

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U.S. Supreme Court

Tyson & Bro. v. Banton, 273 U.S. 418 (1927)

Tyson & Brother v. Banton

No. 261

Argued October 6, 7, 1926

Decided February 28, 1927

273 U.S. 418


1. Sections 167 and 172, c. 590, N.Y.Laws.1922, the former declaring 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 the latter forbidding the resale of any ticket or other evidence of the right of entry to any theatre, 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, contravene the Fourteenth Amendment. Pp. 273 U. S. 429, 273 U. S. 445.

2. The validity of the declaration (§ 167) that the price of admission is a matter "affected with a public interest," is, in this case, necessarily involved in determining the question directly

Page 273 U. S. 419

presented, viz., the validity of the price restriction on resales of tickets. P. 273 U. S. 429.

3. 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, and, as such, within the protection of the Due Process of Law clauses of the Fifth and Fourteenth Amendments. P. 273 U. S. 429.

4. The power to regulate property, services or 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. P. 273 U. S. 430.

5. 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. P. 273 U. S. 430.

6. The power to fix prices does not exist in respect of merely private property or business, but exists only where the business or the property involved has become "affected with a public interest." P. 273 U. S. 430.

7. 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. P. 273 U. S. 430.

8. Characterizations of businesses as "quasi-public, not strictly private," and the like, while well enough as a basis for upholding police regulations in respect of the 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. P. 273 U. S. 430.

9. A declaration of the legislature that a business is affected with a public interest is not conclusive upon the judiciary in determining the validity of a regulation fixing prices in the business. P. 273 U. S. 431.

10. The language of an opinion (Munn v. Illinois,94 U. S. 113, 94 U. S. 126) must be limited to the case under consideration. P. 273 U. S. 433.

11. A business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use and its use thereby, in effect, granted to the public. P. 273 U. S. 434.

Page 273 U. S. 420

12. Each of the decisions of this Court upholding governmental price regulation, aside from cases involving legislation to tide over temporary emergencies, has turned upon the existence of conditions, peculiar to the business under consideration, which bore such a substantial and definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use. P. 273 U. S. 438.

13. A theatre, though a license may be required, is a private enterprise; the license is not a franchise putting the proprietor under a duty to furnish entertainment to the public and admit all who apply. P 273 U. S. 439.

14. 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 is rejected. P. 273 U. S. 441.

15. A statutory provision fixing the prices at which theatre tickets may be resold cannot be sustained as a measure for preventing fraud, extortion, and collusive arrangements between theatre managers and ticket brokers. P. 273 U. S. 442.

16. Constitutional principles, applied as they are written, must be assumed to 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. P. 273 U. S. 445.


APPEAL from a decree of the District Court denying a temporary injunction in a suit brought by the appellant, a licensed ticket-broker corporation in New York, to restrain the District Attorney of New York County and the State Comptroller from forfeiting the license, forfeiting the bond accompanying the same, and prosecuting criminal proceedings, under the state law, because of the appellant's failure to conform to a provision thereof limiting the prices at which it may resell tickets, which it challenges as invalid under the Fourteenth Amendment.

Page 273 U. S. 426

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