1. A state law forbidding and penalizing the engaging without a
license in the business of reselling theater tickets does not
violate the Fourteenth Amendment. P.
268 U. S. 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.
Page 268 U. S. 322
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 person,
Page 268 U. S. 323
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 § 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
Page 268 U. S. 324
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, 237 N.Y. 316. In an extended
opinion, the latter court upheld the challenged enactment, but said
nothing of the
Page 268 U. S. 325
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 people 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. The
statute itself declares (§ 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 § 172, which restricts resale prices, were eliminated, a
workable plan would still remain.
See Dorchy v. Kansas,
264 U. S. 286.
The judgment of the court below is
Affirmed.
*
"§ 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."
"§ 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 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 proof
satisfactory to the comptroller of the moral character of the
applicant."
"§ 169.
Bond. The comptroller shall require the
applicant for a license to file with the application therefor a
bond in due form to the people of the State of New York in the
penal sum of one thousand dollars, with two or more sufficient
sureties, who shall be freeholders within the State of New York,
conditioned that the obligor will not be guilty of any fraud or
extortion, and will not exact or receive a price for any such
ticket or evidence of the right of entry in excess of the price
authorized by this article. The comptroller shall keep books
wherein shall be entered in alphabetical order all licenses granted
and all bonds received by him as provided for in this article, the
date of the issuance of such licenses and the filing of such bonds,
which record shall be open to public inspection. A suit to recover
on the bond required to be filed by the provisions of this article
may be brought by the comptroller or on the relation of any party
aggrieved in a court of competent jurisdiction and in the event
that the obligor named in such bond has violated any of the
conditions of such bond, recovery for the full penal sum of such
bond may be had in favor of the people of the state."
"§ 170.
Revocation of Licenses. In the event that any
licensee shall be guilty of any fraud or misrepresentation or shall
charge for any ticket a price in excess of the price authorized by
this article or otherwise violate any of the provisions of this
article or any other law or local ordinance, the comptroller shall
be empowered, on giving ten days' notice by mail to such licensee,
and on affording such licensee an opportunity to answer the charges
made against him, to revoke the license issued to him."
"§ 171.
Supervision of Comptroller. The comptroller
shall have the power, upon complaint of any citizen or of his own
initiative, to investigate the business, business practices and
business methods of any such licensee if in the opinion of the
comptroller such investigation is warranted. Each such licensee
shall be obliged, on request of the comptroller, to supply such
information as may be required concerning his business, business
practices or business methods."
"§ 172.
Restriction as to Price. No licensee shall
resell any such ticket or other evidence of the right of entry to
any theater, place of amusement or entertainment, or other place
where public exhibitions, games, contests or performances are given
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.
Every person, firm or corporation who owns, operates or controls a
theater, place of amusement or entertainment, or other place where
public exhibitions, games, contests or performances are held shall,
if a price be charged for admission thereto, print on the face of
each such ticket or other evidence of the right of entry the price
charged therefor by such person, firm or corporation."
"§ 173.
Violations; Penalties. Every person, firm or
corporation who resells any such ticket or other evidence of right
of entry or engages in the business of reselling any such ticket or
other evidence of the right of entry without first having procured
the license prescribed and filing of a bond required by this
article shall be guilty of a misdemeanor. Every person, firm or
corporation who violates any provisions of this article shall be
guilty of a misdemeanor."
"§ 174.
Constitutionality of Article. 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."