| Tyson & Brother v. Banton
(No. 261)
Reversed. |
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| Syllabus
| Opinion
[ Sutherland ] | Dissent
[ Holmes ] | Dissent
[ Stone ] | Dissent
[ Sanford ] |
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Tyson & Brother v. Banton
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
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 [p455] 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, 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. Weller, 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, 247 Mass. 589, 598. And in Wolff Co. v. Industrial Court, 262 U.S. 522, 535, it was recognized that a business, [p456] 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.