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The business of conducting a theatre is a private one. The legislature has the power to regulate it as a place of public amusement and might require a license. The legislature has the same power to regulate such a business as it has to regulate any other private business, and no more. An act which prohibits the resale of tickets for more than the price printed thereon is invalid as an arbitrary and unreasonable interference with the rights of the ticket broker. The intending purchaser of the ticket has no right to buy at any price except that fixed by the holder. The manager might fix the price arbitrarily, and raise or lower it at his will and having advertised a performance, he is not bound to give it, and having advertised a price, he is not bound to sell at that price. The business of dealing in theatre tickets and the right to contract with regard to them are entitled to protection.
Tyson & Brother--United Theatre Ticket Offices, Inc. (Tyson & Brother) was engaged in the business of reselling tickets of admission to places of entertainment. 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. Section 167 of chapter 590 declares that the price of or charge for admission to theaters, 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. Suit was brought to enjoin appellees, district attorney and state comptroller, from revoking Tyson & Brother’s license and prosecuting Tyson & Brother or any of its officers or agents from reselling or attempting to resell any ticket or other evidence of the right of entry to any theatre at a price in excess of 50 cents in advance of the ticket price. The district court denied Tyson & Brother a temporary injunction.
Was Section 172 which forbids the resale of any ticket or other evidence of the right of entry to any theatre, valid and constitutional?
The court reversed the decree from the district court finding that 1922 N.Y. Laws ch. 590, § 172 contravened U.S. Const. amend. XIV. Sales of theatre tickets bore no relation to the commerce of the country and there was no legislative power to fix the prices of such, in the absence of a controlling emergency. Places of entertainment did not affect the public interest as to justify legislative regulation of their charges. Ch. 590, § 172 ignored the righteous distinction between guilt and innocence, as it applied wholly irrespective of the existence of fraud, collusion, or extortion, and fixed the resale price where fraud was not present.