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.
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
Page 273 U. S. 419
the validity of the price restriction
on resales of tickets. P. 273 U. S.
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.
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.
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.
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.
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.
8. Characterizations of businesses as "quasi
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Appellant is engaged in the business of reselling tickets of
admission to theatres and other places of entertainment in the City
of New York. It employs a large number of salesmen, messenger boys
and others. Its expenses are very large, and its sales average
approximately 300,000 tickets per annum. These tickets are obtained
either from the box office of the theatre or from other brokers and
distributors. It is duly licensed under § 168, c. 590, New York
Laws, 1922, and has given a bond under § 169 of that chapter in the
penal sum of $1,000, with sureties conditioned, among other things,
that it will not be guilty of any fraud or extortion. See
Weller v. New York, 268 U. S. 319
268 U. S.
Page 273 U. S. 427
Section 167 of chapter 590 declares that the price of or charge
for admission to theatres, etc., is a matter affected with a public
interest, and subject to state supervision in order to safeguard
the public against fraud, extortion, exorbitant rates, and similar
abuses. Section 172 forbids 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," such
printing being required by that section. Both sections are
reproduced in the margin. *
This suit was brought to enjoin respondents from proceeding
either at law or in equity to enforce the last named section, and
from revoking plaintiff's license, enforcing by suit or otherwise
the penalty of the bond or prosecuting criminally appellant or any
of its officers or agents for reselling or attempting to resell 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
Page 273 U. S. 428
price. The bill alleges threats on the part of appellees to
enforce the statute against appellant, to forfeit its license,
enforce the penalty of its bond and institute criminal prosecutions
against appellant, its officers and agents. It is further alleged
that the terms of the statute are so drastic, and the penalties for
its violation so great [imprisonment for one year or a fine of $250
or both], that appellant may not resell any ticket or evidence of
the right of entry at a price beyond that fixed by the statute even
for the purpose of testing the validity of the law, and that
appellant will be compelled to submit to the statute whether valid
or invalid unless its suit be entertained, and thereby will be
deprived of its property and liberty without due process of law and
denied the equal protection of the law, in contravention of the
Fourteenth Amendment to the federal Constitution. Following the
rule frequently announced by this court, that
"equitable jurisdiction exists to restrain criminal prosecutions
under unconstitutional enactments, when the prevention of such
prosecutions is essential to the safeguarding of rights of
we sustain the jurisdiction of the district court. Packard
v. Banton, 264 U. S. 140
264 U. S. 143
and cases there cited.
The case was heard below by a statutory court of three judges
and a decree rendered denying appellant's prayer for a temporary
injunction and holding the statute assailed to be valid and
constitutional. The provision of the statute in question also has
been upheld in a judgment of the New York state court of appeals,
People v. Weller,
237 N.Y. 316, brought here on writ of
error. That case, however, directly involved only § 168, requiring
a license, and although it was insisted that § 172 restricting
prices should also be considered, upon the ground that the two
provisions were inseparable, this court held otherwise, sustained
the validity of the license section, and declined to
Page 273 U. S. 429
pass upon the other one. Weller v. New York,
268 U. S. 319
268 U. S. 325
Strictly, the question for determination relates only to the
maximum price for which an entrance ticket to a theatre, etc., may
be resold. But the answer necessarily must be to a question of
greater breadth. The statutory declaration (§ 167) is that the
price of or charge for admission to a theatre, place of amusement
or entertainment or other place where public exhibitions, games,
contests or performances are held, is matter affected with a public
interest. To affirm the validity of § 172 is to affirm this
declaration completely, since appellant's business embraces the
resale of entrance tickets to all forms of entertainment therein
enumerated. And since the ticket broker is a mere appendage of the
theatre, etc., and the price of or charge for admission is the
essential element in the statutory declaration, it results that the
real inquiry is whether every public exhibition, game, contest or
performance to which an admission charge is made is clothed with a
public interest, so as to authorize a lawmaking body to fix the
maximum amount of the charge which its patrons may be required to
In the endeavor to reach a correct conclusion in respect of this
inquiry, it will be helpful, by way of preface, to state certain
pertinent considerations. The first of these is that 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,
Case of the State Freight
15 Wall. 232, 82 U. S. 278
and, as such, within the protection of the due process of law
clauses of the Fifth and Fourteenth Amendments. See City of
Carrollton v. Bazzette,
159 Ill. 284, 294. 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.
Page 273 U. S. 430
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. The latter,
ordinarily, does not exist in respect of merely private property or
business, Chesapeake & Potomac Tel. Co. v. Manning,
186 U. S. 238
186 U. S. 246
but exists only where the business or the property involved has
become "affected with a public interest." This phrase, first used
by Lord Hale 200 years ago, Munn v. Illinois, 94 U. S.
, 94 U. S. 126
it is true, furnishes, at best, an indefinite standard, and
attempts to define it have resulted, generally, in producing little
more than paraphrases which themselves require elucidation. Certain
properties and kinds of business it obviously includes, like common
carriers, telegraph and telephone companies, ferries, wharfage,
etc. Beyond these, its application not only has not been uniform,
but many of the decisions disclose the members of the same court in
radical disagreement. Its full meaning, like that of many other
generalizations, cannot be exactly defined -- it can only be
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.
The characterizations in some decisions of businesses as
-public," People v. King,
110 N.Y. 418,
428, "not strictly' private," Aaron v. Ward, 203 N.Y.
351, 356, 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 the conduct of particular
Page 273 U. S. 431
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. The latter power is not only a more definite
and serious invasion of the rights of property and the freedom of
contract, but its exercise cannot always be justified by
circumstances which have been held to justify legislative
regulation of the manner in which a business shall be carried
And finally, the mere declaration by the legislature that a
particular kind of property or business is affected with a public
interest is not conclusive upon the question of the validity of the
regulation. The matter is one which is always open to judicial
inquiry. Wolff Co. v. Industrial Court, 262 U.
, 262 U. S.
In the Wolff
case, this court held invalid the
wage-fixing provision of the compulsory arbitration statute of
Kansas as applied to a meat packing establishment. The power of a
legislature, under any circumstances, to fix prices or wages in the
business of preparing and selling food was seriously doubted, but
the court concluded that, even if the legislature could do so in a
public emergency, no such emergency appeared, and, in any event,
the power would not extend to giving compulsory continuity to the
business by compulsory arbitration. In the course of the opinion
(p. 262 U. S.
), it was said that business characterized as clothed
with a public interest might be divided into three classes:
"(1) Those which are carried on under the authority of a public
grant of privileges which either expressly or impliedly imposes the
affirmative duty of rendering a public service demanded by any
member of the public. Such are the railroads, other common
carriers, and public utilities."
"(2) Certain occupations, regarded as exceptional, the public
interest attaching to which, recognized from earliest
Page 273 U. S. 432
times, has survived the period of arbitrary laws by Parliament
or Colonial legislatures for regulating all trades and callings.
Such are those of the keepers of inns, cabs and grist mills.
State v. Edwards,
86 Me. 102; Terminal Taxicab Co. v.
District of Columbia, 241 U. S. 252
, 241 U. S.
"(3) Businesses which, though not public at their inception, may
be fairly said to have risen to be such, and have become subject in
consequence to some government regulation. They have come to hold
such a peculiar relation to the public that this is superimposed
upon them. In the language of the cases, the owner, by devoting his
business to the public use, in effect grants the public an interest
in that use and subjects himself to public regulation to the extent
of that interest, although the property continues to belong to its
private owner and to be entitled to protection accordingly."
Citing the Munn
case and others.
If the statute now under review can be sustained as valid, it
must be in virtue of the doctrine laid down in the third paragraph,
and it will aid in the effort to reach a correct conclusion in that
respect if we shall first consider the principal decisions of this
court where that doctrine has been applied. The leading, as well as
the earliest, definite decision dealing with a business falling
within that class is Munn v. Illinois, supra,
sustained the validity of an Illinois statute fixing the maximum
charge to be made for the use of elevators and warehouses for the
elevation and storage of grain.
As ground for that decision, the opinion recites, among other
things, that grain came from the west and northwest by water and
rail to Chicago, where the greater part of it was shipped by vessel
to the seaboard, and some of it by railway to eastern ports; that
Chicago had been made the greatest grain market in the world, and
that the business had created a demand for means by which the
immense quantity of grain could be handled or stored, and these had
been found in grain elevators. In this way, the largest
Page 273 U. S. 433
traffic between the country north and west of Chicago and that
lying on the Atlantic coast north of Washington was in grain
passing through the elevators at Chicago. The trade in grain
between seven or eight of the great states of the west and four or
five of those lying on the seashore formed the largest part of the
interstate commerce in these states. The elevators in Chicago were
immense structures, holding from 300,00 to 1,000,000 bushels at one
time. Under these circumstances, it was said that the elevators
stood in the very "gateway of commerce," and took toll from all who
passed; that their business certainly tended to a common charge,
and had become a thing of public interest and use; that every
bushel of grain, for its passage, paid a toll, which was a common
charge; and, finally, that, if any business could be clothed "with
a public interest, and cease to be juris privati
this had been made so by the facts.
There is some general language in the opinion which,
superficially, might seem broad enough to cover cases like the
present one. It was said, for example, (p. 94 U. S.
"Property does become clothed with a public interest when used
in a manner to make it of public consequence and affect the
community at large."
Literally, that would include all the large industries, and some
small ones; but, in accordance with the well settled rule, the
words must be limited to the case under consideration.
6 Wheat. 264, 19 U. S. 399
Plumley v. Massachusetts, 155 U.
, 155 U. S. 474
Indeed, the language quoted is qualified immediately by a statement
of the general rule, that
"When, therefore, one devotes his property to a use in which the
public has an interest, he, in effect, grants to the public an
interest in that use, and must submit to be controlled by the
public for the common good, to the extent of the interest he has
The significant requirement is that the property shall be
devoted to a use in which the public has an interest,
Page 273 U. S. 434
which simply means, as in terms it is expressed at page
94 U. S. 130
that it shall be devoted to " a public use." Stated in another
form, 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. See Louisvlle
&c. R.R. Co. v. West Coast Co., 198 U.
, 198 U. S. 500
subsequent elevator and warehouse cases, Budd v. New York,
143 U. S. 517
Brass v. Stoeser, 153 U. S. 391
while presenting conditions of less gravity, rest upon the
authority of the Munn
case. The differences among the
three cases are in matters of degree.
In Cotting v. Kansas City Stock Yards Co., &c.,
183 U. S. 79
183 U. S. 85
Mr. Justice Brewer, speaking on that point for himself and two
other members of the court, said that, tested by the Munn
case, the stockyards of the company, situated in one of the
gateways of commerce and so located that they furnished important
facilities to all seeking transportation of cattle, were subject to
governmental price regulation. But the majority of the court,
without referring to this view, assented to a reversal upon a
ground specifically stated (pp. 183 U. S.
-115), and the authority of the case must be limited
by the terms of that statement.
German Alliance Ins. Co. v. Kansas, 233 U.
, carries the doctrine further, and marks the
extreme limit to which this court thus far has gone in sustaining
price-fixing legislation. There, the court said that a business
might be affected with a public interest so as to permit price
regulation although no public trust was impressed upon the property
and although the public might not have a legal right to demand and
receive service, and it was held that fire insurance was such a
business. Mr. Justice McKenna, speaking for the court, pointed out
that, in an insurance business, each risk was not individual;
Page 273 U. S. 435
that "there can be standards and classification of risks,
determined by the law of averages," and, while there might be
variations, that rates are fixed and accommodated to such
standards. Discussing the question whether the business was
affected with a public interest so as to justify regulation of
rates, it was then said (p. 233 U. S.
"And we mean a broad and definite public interest. In some
degree, the public interest is concerned in every transaction
between men, the sum of the transactions constituting the
activities of life. But there is something more special than this,
something of more definite consequence, which makes the public
interest that justifies regulatory legislation."
The business of common carriers, transmission of intelligence,
furnishing water and light, gas and electricity, were cited as
examples, and the Munn, Budd,
reviewed. The fact that the contract of fire insurance was personal
in character, it was said, did not preclude regulation, and, in
that connection, it was pointed out that insurance companies were
so regulated by state legislation to show that the lawmaking bodies
of the country, without exception, regarded the business of
insurance as so far affecting the public welfare as to invoke and
require governmental regulation. And it was then said (p.
233 U. S.
"Accidental fires are inevitable, and the extent of loss very
great. 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; great
catastrophes are thereby lessened, and, it may be, repaired. In
assimilation of insurance to a tax, the companies have been said to
be the mere machinery by which the inevitable losses by fire are
distributed so as to fall as lightly as
Page 273 U. S. 436
possible on the public at large, the body of the insured, not
the companies, paying the tax."
And again (p. 233 U. S.
"Contracts of insurance, therefore, have greater public
consequence than contracts between individuals to do or not to do a
particular thing whose effect stops with the individuals."
And again (p. 233 U. S.
"We have shown that the business of insurance has very definite
characteristics, with a reach of influence and consequence beyond
and different from that of the ordinary businesses of the
commercial world, to pursue which a greater liberty may be
asserted. The transactions of the latter are independent and
individual, terminating in their effect with the instances. The
contracts of insurance may be said to be interdependent. They
cannot be regarded singly or isolatedly, and the effect of their
relation is to create a fund of assurance and credit, the companies
becoming the depositories of the money of the insured, possessing
great power thereby and charged with great responsibility."
Answering the objection that the reasoning of the opinion would
subject every act of human endeavor and the price of every article
of human use to regulation, it was said (p. 233 U. S.
"And both by the expression of the principle and the citation of
the examples, we have tried to confine our decision to the
regulation of the business of insurance, it having become 'clothed
with a public interest,' and therefore subject 'to be controlled by
the public for the common good.'"
This observation fairly may be regarded as a warning at least to
be cautious about invoking the decision as a precedent for the
determination of cases involving other kinds of business. And this
view is borne out by a general consideration of the case. The
Page 273 U. S. 437
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 -- they do not sell anything. They are engaged
in making contracts with and collecting premiums from a large
number of persons, the effect of their activities being to
constitute a guaranty against individual loss and to put a large
number of individual contributions into a common fund for the
purpose of fulfilling the guaranty. In this fund, all are
interested not in some vague or sentimental way, but in a very
real, practical and definite sense. It was from the foregoing and
other considerations peculiar to the insurance business that the
court drew its conclusion that the business was clothed with a
Wilson v. New, 243 U. S. 332
(involving the Adamson law), Block v. Hirsh, 256 U.
, and Marcus Brown Co. v. Feldman,
256 U. S. 170
rental cases), are relied upon to sustain the statute now under
review. But, in these cases, the statutes involved were of a
temporary character, to tide over grave emergencies, Adkins v.
Children's Hospital, 261 U. S. 525
261 U. S.
-552, the emergency in the New
case being of
nationwide extent, and it is clear that, in the opinion of this
court, at least the business of renting houses and apartments is
not so affected with a public interest as to justify legislative
fixing of prices unless some great emergency exists. Block v.
p. 256 U. S. 157
Chastleton Corp. v. Sinclair, 264 U.
, 264 U. S. 548
And even with the emergency, the statutes
Page 273 U. S. 438
"went to the verge of the law." Penna. Coal Co. v.
Mahon, 260 U. S. 393
260 U. S.
Nor is the sale of ordinary commodities of trade affected with a
public interest so as to justify legislative price-fixing. This
court said in Wolff Co. v. Industrial Court, supra,
262 U. S.
"It has never been supposed, since the adoption of the
Constitution, that the business of the butcher, or the baker, the
tailor, the woodchopper, the mining operator or the miner was
clothed with such a public interest that the price of his product
or his wages could be fixed by State regulation. It is true that,
in the days of the early common law, an omnipotent Parliament did
regulate prices and wages as it chose, and occasionally a Colonial
legislature sought to exercise the same power; but nowadays, one
does not devote one's property or business to the public use or
clothe it with a public interest merely because one makes
commodities for, and sells to, the public in the common callings of
which those above mentioned are instances."
See also United States v. Bernstein,
267 Fed. 295,
From the foregoing review, it will be seen that 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.
Lord Hale's statement that, when private property is "affected
with a public interest, it ceases to be juris privati
only," is accepted by this court as the guiding principle in cases
of this character. That this phrase was not intended by its author
to include private undertakings like those enumerated in the
statute now under consideration
Page 273 U. S. 439
is apparent when we consider the connection in which it was
used. It occurs in Lord Hale's manuscript, De Portibus
1 Harg.Law Tracts, 78, in which the threefold rights of
the proprietor, the public, and the king in ports are considered.
It first is pointed out that no man can erect a public port without
the king's license, though, if he set up a port for his private
advantage, he may take what rates he and his customers can agree
upon. But, it is said, if the king or the subject have a public
wharf, to which all persons must come, because it is the wharf only
licensed by the king, or there is no other wharf in that port,
arbitrary and excessive charges cannot be made. For it is then
affected with a public interest, and ceases to be juris
"as if a man set out a street in new building on his own land,
it is now no longer bare private interest, but it is affected with
a public interest."
It is clear that, as there announced, the rule is confined to
conveniences made public because the privilege of maintaining them
has been granted by government or because there has arisen what may
be termed a constructive grant of the use to the public. That this
is what Lord Hale had in mind is borne out, and the question now
under consideration is illuminated, by the illustration, which he
evidently conceived to be pertinent, of a street opened to the
public, in which case the assumed grant and resulting public right
of use is very apparent.
A theatre or other place of entertainment does not meet this
conception of Lord Hale's aphorism or fall within the reasons of
the decisions of this court based upon it. A theatre is a private
enterprise which, in its relation to the public, differs obviously
and widely, both in character and degree, from a grain elevator,
standing at the gateway of commerce and exacting toll, amounting to
a common charge for every bushel of grain which passes on its way
among the states; or stockyards, standing in
Page 273 U. S. 440
like relation to the commerce in livestock; or an insurance
company engaged as a sort of common agency in collecting and
holding a guaranty fund in which definite and substantial rights
are enjoyed by a considerable portion of the public sustaining
interdependent relations in respect of their interests in the fund.
Sales of theatre 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; and
quite as certainly, its activities are not such that their
enjoyment can be regarded under any conditions from the point of
view of an emergency.
The interest of the public in theatres and other places of
entertainment may be more nearly, and with better reason,
assimilated to the like interest in, provision stores and markets
and in the rental of houses and apartments for residence purposes,
although in importance it falls below such an interest in the
proportion that food and shelter are of more moment than amusement
or instruction. As we have shown, there is no legislative power to
fix the prices of provisions or clothing or the rental charge for
houses or apartments in the absence of some controlling emergency,
and we are unable to perceive any dissimilarities of such quality
or degree as to justify a different rule in respect of amusements
A theatre ticket may be in the form of a revocable license or of
a contract. If the former, it may be revoked at the will of the
proprietor; if the latter, it may be made nontransferable or
otherwise conditioned. A theatre, 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
Page 273 U. S. 441
not a franchise which puts the proprietor under the duty of
furnishing entertainment to the public or, if furnished, of
admitting everyone who applies. See Collister v. Hymn,
N.Y. 250, 253. How far the power of the legislature may be exerted
to prevent discriminating selection by the proprietor of his
patrons upon the basis of race, color, creed, etc., People v.
110 N.Y. 418, need not be determined, for, in any event,
such power and the other powers of regulation just enumerated fall
far short of the one here invoked to fix prices.
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. But certainly no such duty
devolves upon any American government. The most that can be said is
that the theatre 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 theatres 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. This is a fact of some
significance in connection with the historical argument, and, when
set in contrast with the practice in respect of innkeepers and
others, whose charges have been subjected to legislative regulation
from a very early period, it persuasively suggests that, by general
legislative acquiescence, theatres historically have been regarded
as falling outside the classes of things which should be thus
controlled. It will not do to say that this failure of legislative
bodies to act in the matter has been due to the absence of
complaints on the part of the public,
Page 273 U. S. 442
for it hardly is probable that a privilege as ancient and as
amply exercised as that of complaining about prices in general has
not been freely indulged in the matter of charges for
entertainment. Indeed, it is judicially recorded that, as long ago
as 1809, there was a riot in the Royal Theatre, London, for the
purpose of compelling a reduction in prices of admission. In
deciding a case growing out of the disturbance, Clifford v.
2 Campb. 358, 368, the court summarily disposed of
the claim that people had a right to express their disapprobation
of high prices in such a tumultuous manner, by saying that
"the proprietors of a theatre have a right to manage their
property in their own way, and to fix what prices of admission they
think most for their own advantage,"
and that any person who did not approve could stay away.
If it be within the legitimate authority of government to fix
maximum charges for admission to theatres, lectures (where perhaps
the lecturer alone is concerned), baseball, football and other
games of all degrees of interest, circuses, shows (big and little),
and every possible form of amusement, including the lowly
merry-go-round with its adjunct, the hurdy-gurdy, Commonwealth
177 Mass. 347, it is hard to see where the limit of
power in respect of price-fixing is to be drawn.
It is urged that the statutory provision under review may be
upheld as an appropriate method of preventing fraud, extortion,
collusive arrangements between the management and those engaged in
reselling tickets, and the like. 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
Page 273 U. S. 443
interference. One vice of the contention is that the statute
itself ignores the righteous distinction between guilt and
innocence, since it applies wholly irrespective of the existence of
fraud, collusion or extortion (if that word can have any legal
significance as applied to transaction of the kind here dealt with
-- Commonwealth v. O'Brien & Others,
12 Cush. 84, 90),
and fixes the resale price as well where the evils are absent as
where they are present. 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.
What this court said in Adams v. Tanner, 244 U.
, 244 U. S. 594
in the course of its opinion holding invalid a statute of
Washington penalizing the collection of fees for securing
employment, is apposite:
"Because abuses may, and probably do, grow up in connection with
this business is adequate reason for hedging it about by proper
regulations. But this is not enough to justify destruction of one's
right to follow a distinctly useful calling in an upright way.
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. 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
theatres and ticket brokers or scalpers seems to have been
effectively dealt with in Illinois by an ordinance
Page 273 U. S. 444
which required (1) that the price of every theatre ticket shall
be printed on its face, and (2) that no proprietor, employee, etc.,
of a theatre shall receive or enter into any arrangement or
agreement to receive more. This ordinance was sustained as valid by
the state supreme court in The People v. Thompson,
Ill. 87, 97, and that decision is cited here in support of the
present statute. But the important distinction between that case
and this is that the ordinance did not forbid the resale of the
ticket by a purchaser of it for any price he was able to secure, or
forbid the fixing of any price by the proprietor which he thought
fit, provided that price was printed on the face of the ticket.
That court had held in the earlier case of The People v.
231 Ill. 340, 344, that the business of conducting a
theatre was a private one; that the legislature had the power to
regulate it as a place of public amusement, and might require a
license; that the legislature had the same power to regulate such a
business as it had to regulate any other private business, and no
more. And an act which prohibited the resale of tickets for more
than the price printed thereon was held to be invalid as an
arbitrary and unreasonable interference with the rights of the
ticket broker. It was distinctly held that the intending purchaser
of the ticket had no right to buy at any price except that fixed by
the holder; that the manager might fix the price arbitrarily, and
raise or lower it at his will; that having advertised a
performance, he was not bound to give it, and having advertised a
price, he was not bound to sell at that price, and that the
business of dealing in theatre tickets and the right to contract
with regard to them were entitled to protection. To the same
effect, see Ex parte Quarg,
149 Cal. 79.
This doctrine was reaffirmed in the Thompson
held to have no application to the ordinance there considered, and
not to be inconsistent with the holding (p. 97)
Page 273 U. S. 445
that the manager of a place of public entertainment might
"be compelled to treat patrons impartially by putting an end to
an existing system by which theatre owners and ticket scalpers are
confederated together to compel a portion of the public to pay a
different price from others."
It should not be difficult similarly to define and penalize in
specific terms other practices of a fraudulent character the
existence or apprehension of which is suggested in brief and
argument. But the difficulty or even the impossibility of thus
dealing with the evils, if that should be conceded, constitutes no
warrant for suppressing them by methods precluded by the
Constitution. Such subversions are not only illegitimate, but are
fraught with the danger that, having begun on the ground of
necessity, they will continue on the score of expediency, and
finally as a mere matter of course. 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.
We are of opinion that the statute assailed contravenes the
Fourteenth Amendment, and that the decree must be
"§ 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."
"§ 172. Restriction as to Price.
No licensee shall
resell any such ticket or other evidence of the right of entry to
any theatre, 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
theatre, 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."
MR. JUSTICE HOLMES, dissenting.
We fear to grant power, and are unwilling to recognize it when
it exists. The States very generally have stripped jury trials of
one of their most important characteristics by forbidding the
judges to advise the jury upon the facts (Graham v. United
States, 231 U. S. 474
231 U. S.
), and when legislatures are held to be authorized to
do anything considerably affecting public welfare, it is covered by
apologetic phrases like the police power, or the statement that the
business concerned has been dedicated to a public use. 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
Page 273 U. S. 446
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.
I do not believe in such apologies. 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. Coming down to
the case before us, I think, as I intimated in Adkins v.
Children's Hospital, 261 U. S. 525
261 U. S. 569
that the notion that a business is clothed with a public interest
and has been devoted to the public use is little more than a
fiction intended to beautify what is disagreeable to the sufferers.
The truth seems to me to be that, subject to compensation when
compensation is due, the legislature may forbid or restrict any
business when it has a sufficient force of public opinion behind
it. Lotteries were thought useful adjuncts of the State a century
or so ago; now they are believed to be immoral, and they have been
stopped. Wine has been thought good for man from the time of the
Apostles until recent years. But when public opinion changed, it
did not need the Eighteenth Amendment, notwithstanding the
Fourteenth, to enable a State to say that the business should end.
Mugler v. Kansas, 123 U. S. 623
What has happened to lotteries and wine might happen to theatres in
some moral storm of the future, not because theatres were devoted
to a public use, but because people had come to think that way.
Page 273 U. S. 447
But if we are to yield to fashionable conventions, it seems to
me that theatres are as much devoted to public use as anything well
can be. We have not that respect for art that is one of the glories
of France. But to many people, the superfluous is the necessary,
and it seems to me that Government does not go beyond its sphere in
attempting to make life livable for them. I am far from saying that
I think this particular law a wise and rational provision. That is
not my affair. But if the people of the State of New York, speaking
by their authorized voice, say that they want it, I see nothing in
the Constitution of the United States to prevent their having their
MR. JUSTICE BRANDEIS concurs in this opinion.
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
94 U. S. 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
Page 273 U. S. 448
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
233 U. S.
"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
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.
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,
Page 273 U. S. 449
in the marketing process, from reselling the ticket at an
advance of more than fifty cents above the printed price. [Footnote 1
] 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.
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
Page 273 U. S. 450
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
Page 273 U. S. 451
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
Page 273 U. S. 452
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.
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.
or from a housing shortage growing out of a
public emergency as in Block v. Hirsh, 256 U.
; Marcus Brown Co. v. Feldman,
256 U. S. 170
Levy Leasing Co. v. Siegel, 258 U.
; cf. Chastleton Corp. v. Sinclair,
264 U. S. 543
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.
), 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
zoning ordinance upheld in Village of Euclid v. Ambler Realty
or state statutes restraining the owner of
Page 273 U. S. 453
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
state prohibition laws upheld in Mugler v. Kansas,
123 U. S. 623
legislation prohibiting option contracts for future sales of grain,
Booth v. Illinois, 184 U. S. 425
invalidating sales of stock on margin or for "futures," Otis v.
Parker, 187 U. S. 606
statutes preventing the maintenance of pool parlors, Murphy v.
California, 225 U. S. 623
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.
; St. Louis Poster Advertising Co. v. St.
Louis, 249 U. S. 269
Terminal Taxicab Co. v. Dist. of Columbia, 241 U.
; 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.
; Clark v. Nash, 198 U.
. 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
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. [Footnote 2
] That it is
Page 273 U. S. 454
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
MR. JUSTICE HOLMES and MR. JUSTICE BRANDEIS join in this
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,
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
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
providing for censorship of motion pictures, Mutual Film Corp.
v. Ohio Industrial Commission, 236 U.
An earlier ordinance of New York City, substantially similar to
the present act, was construed in People v. Newman,
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,
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,
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
Ill.1923, p. 322.
MR. JUSTICE SANFORD, dissenting.
I regret that I cannot agree with the opinion of the Court in
this case. My own view is more nearly that expressed by Mr. Justice
Stone. Shortly stated, it is this: the case, I think, does not
involve the question whether the business of theatre owners
offering their separate entertainments is so affected with a public
interest that the price which they themselves charge for tickets is
subject to regulation by the legislature, but the very different
question whether the business of ticket brokers who intervene
between the theatre owners and the general public in the sale of
theatre tickets is affected with a public interest, and may, under
the circumstances disclosed in this case, be
Page 273 U. S. 455
regulated by the legislature to the extent of preventing them
from selling tickets at more than a reasonable advance upon the
theatre prices. The facts stated by Mr. Justice Stone are
substantially those found by the District Court. They show, as I
think, clearly, that the ticket brokers, by virtue of arrangements
which they make with the theatre owners, ordinarily acquire an
absolute control of the most desirable seats in the theatres, by
which they deprive the public of access to the theatres 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.
In Munn v. Illinois, 94 U. S. 113
94 U. S. 132
although there was no holding that the sale of grain was, in
itself, a business affected with a public interest which could be
regulated by the legislature -- it was held that the separate
business of grain elevators, which "stood in the very gateway of
commerce" in grain, "taking toll" from all who passed and tending
to a common charge, had become, by the facts, clothed "with a
public interest," and was subject to public regulation limiting the
charges to a reasonable toll. So, I think, that here -- without
reference to the character of the business of the theatres
themselves -- the business of the ticket brokers, who stand in "the
very gateway" between the theatres and the public, depriving the
public of access to the theatres for the purchase of desirable
seats at the regular prices, and, exacting toll from patrons of the
theatres desiring to purchase such seats, has become clothed with a
public interest and is subject to regulation by the legislature
limiting their charges to reasonable exactions and protecting the
public from extortion and exorbitant rates. See People v.
207 App.Div. 337, 343, and 237 N.Y. 316, 331, in which
the constitutionality of this statute was sustained by the New York
courts, and Opinion of the Justices to the Senate,
Mass. 589, 598. And in Wolff Co. v. Industrial Court,
262 U. S. 522
262 U. S. 535
it was recognized that a business,
Page 273 U. S. 456
although not public at its inception, might become clothed with
a public interest justifying some government regulation, by coming
"to hold such a peculiar relation to the public that this is
superimposed" upon it. This, I think, is the case here.