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Subject Area: Law
Topic: The American Revolution and Constitution

§ 123.: Prohibition of ticket-brokerage—Ticket-scalping prohibited and punished.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 123.

Prohibition of ticket-brokerage—Ticket-scalping prohibited and punished.—

Of late years statutes have been enacted in several States, notably Indiana and Pennsylvania, which prohibit the sale of railroad tickets, except by the authorized agents of the railroads and the bona fide purchaser of an unused ticket or portion of a ticket, the object of the statutes being to put an end to the business of the so-called ticket “scalpers” or brokers; and the Pennsylvania statute makes it compulsory upon the railroad company to redeem an unused ticket or portion of a ticket. It has been held in both States that the law was constitutional.1 In both cases the law was justified as a measure for the prevention of fraud upon the railroads and upon purchasers. The preamble to the Pennsylvania statute was as follows: “Whereas numerous frauds have been practiced upon unsuspecting travelers by means of the sale by unauthorized persons of railway and other tickets, and also upon railroads and other corporations by the fraudulent use of tickets, in violation of the contract of their purchase,” etc. It is not contended that the business of ticket brokerage is in itself of a fraudulent character. The business can be honestly conducted by an honest man. It is only claimed that in its prosecution the business presents manifold opportunities for the commission of fraud. As has already been stated, the police regulation of an employment may extend to any length that may be necessary for the prevention and suppression of fraud in its pursuit; but an honest man cannot be denied the privilege of conducting the business in an honest and lawful manner because dishonest men are in the habit of practicing gross and successful frauds upon those with whom they have dealings. If that were a justifiable ground for abolishing any business, many important, perhaps some of the most beneficial, employments and professions could be properly prohibited. There is no profession or employment that furnishes more abundant opportunities for the practice of frauds upon defenseless victims than does the profession of the law, and that profession has its ample proportion of knaves among its votaries, although the proportion is very much smaller than is popularly supposed. But it would be idle to assert that, because of the frequency of fraudulent practices among lawyers, the State could abolish the profession and forbid the practice of the law. There is no difference in principle between the two cases. The business of ticket brokerage does afford many opportunities for fraud and deceit, and it may on that account be placed under strict police surveillance. But the business serves a useful end, when honestly conducted, and the constitutional liberty of the ticket broker is violated when he is prohibited altogether from carrying on his business. The foregoing text of this section has been reproduced without change from the first edition, wherein it appeared on pages 292, 293. To my certain knowledge, in every subsequent case in which the constitutionality of such laws has been questioned, this argument has been presented against their constitutionality by the attorneys of the ticket-brokers. But with the exception of the recent New York case, to which reference will be made presently, the argument did not seem to impress the courts, and they sustained the constitutionality of the law.1 The Illinois statute prohibited the sale of railroad tickets by any one but the authorized transportation agents, and the original purchaser of the ticket. The Minnesota court held the law to be constitutional as a regulation of an incident of the business of common carriers, which business is itself subject to police regulation. In this case, Judge Mitchell says:—

“That the transportation of passengers by common carriers is a proper subject of police regulation by the State is unquestioned; and, if a business itself is the subject of police regulation, then so are all its incidents and accessories. That the matter of the issue and transfer of tickets, as evidences of the contracts of the carriers, is an incident and accessory of the business, needs no argument.”

“And where a business is a proper subject of the police power, the legislature may, in the exercise of that power, adopt any measures not in conflict with some provision of the constitution, that it sees fit, provided, only, they are such as have some relation to, and some tendency to accomplish, the desired end; and, if the measures adopted have such relation or tendency, the courts will never assume to determine whether they are wise, or the best that might have been adopted.”

The New York statute against ticket scalping was very drastic in the penalties which it prescribed for a violation of the statute, the highest being imprisonment in the penitentiary. When a case under the law appeared on appeal before the Appellate Division of the Supreme Court of the First Department, the constitutionality of the act was sustained on the ground, that the ticket of a common carrier was not property in the constitutional sense, the right to alienate which was protected against statutory curtailment by the constitutional guaranties.1 Judge Patterson, in this case, says:—

“The buying and selling of railroad tickets is nothing but the buying and selling of the evidence which entitles a person to transportation by a public carrier. The issuing of tickets is a feature of the carriers’ business. The regulation and control of the business of a public carrier is originally with the sovereign power conferring the franchise upon that carrier, if it be a corporation, or of the State in which the business is carried on, if the carrier is not a corporation. If the exercise of that power of regulation and control prevents a third party from securing a personal advantage, which he calls his business, he is not deprived of any constitutional right.”

And the same position is taken by the dissenting judges of the Court of Appeals,2 when an appeal was taken to that court, adding the additional argument that the prohibition of the business of selling the tickets of common carriers by others than the duly authorized agents of the railroads and other common carriers, was a reasonable provision for preventing fraud upon travelers by making the common carriers and their agents the sole vendors of tickets. Says Judge Martin:—

“The real inquiry here presented is whether the legislature may provide that steamboat and railroad tickets shall not be sold by irresponsible or unknown persons, thus exposing travelers to fraud, and require them to be so sold that the companies issuing them shall be responsible to the traveler who purchases them. When properly considered it is obvious that the purpose and effect of this law was to require the sale of passage tickets in a manner which would render the companies themselves responsible for the sale. While the statute forbids persons other than the companies or their duly constituted agents making such sales, still, its purpose was to compel the companies to sell their own tickets and thus become responsible.

* * * * * * * * * * *

“That the sale of tickets by brokers has long been a source of fraud, both upon the traveling public and the companies issuing them, is a matter of common knowledge, and of its existence there can be no doubt. Indeed, it is doubtful if the business would exist but for the profit derived from improper or fraudulent sales. The fraud of ticket brokers assumes various forms, such as changing tickets which are not transferable by the erasure of the name, the place of destination, or the date, and substituting others, and by otherwise changing the tickets, or by obliterating the dates so as to render their improper use possible. Moreover, the existence of such brokers incites the stealing of tickets, and encourages the employees of the companies in defrauding their employers by furnishing a market for stolen tickets and those not canceled by dishonest officers. That the sale of such tickets is a fraud upon both the carrier and the honest traveler cannot be successfully denied. Again, when a passenger loses his ticket, instead of its being restored to him, resort may at once be had to those agencies to realize upon it. Hardly a week passes when the public prints do not contain one or more accounts of the grossest fraud upon honest but unwary travelers, which would not occur but for their existence. Therefore, the existence of ticket brokers is a continual menace to both passengers and carriers. It tends to encourage forgery, larceny, the receipt and sale of stolen and fraudulent tickets, the perpetration of frauds upon travelers, and is clearly a disadvantage to the honest traveler as well as to the carrier. Hence, the necessity for this statute is obvious, and I think the legislature was wise in adopting it.”

“While every person has a right to pursue, in a legitimate manner, any lawful calling he may select, and the State can neither compel him to adopt any particular calling nor prohibit his engaging in any legitimate business, still, it, in the exercise of its police power, is authorized to subject all occupations to such restraint as may be necessary to prevent their becoming harmful to the public, and where an occupation threatens public injury and its suppression is essential to the public welfare, the State may prevent its pursuit.1

“The State has a right to reasonably control the manner in which public corporations shall transact their business, and to protect the public against fraud. This statute does nothing more. Its effect is to require railroad and steamboat companies to sell their own tickets in a manner that will render them responsible to the purchaser for any fraud or mistake that may be perpetrated or may occur. The property and business of these companies is clothed with a public interest which makes them of public consequence, affecting the community at large; and hence, they may be controlled by any police regulation which is necessary to secure the public good.2 It is, therefore, reasonable that the State may provide any preventive remedy necessary when the frequency of fraud or the difficulty in circumventing it is so great that no other means will prove efficacious. A regulation which is instituted for the purpose of preventing fraud or injury to the public, and which tends to furnish such protection, is clearly constitutional. This proposition is sustained by numerous authorities in this State and elsewhere, and is an important element of the police power which is vested in the legislature.

“It seems clear that the judgment in this case should be upheld upon the grounds:—

“1. Railroad and steamboat tickets can in no proper sense be regarded as property in which third persons have any vested interest. They are mere tokens or evidences of a right to transportation in which even the traveler who has purchased one has but a special interest, and to which the companies have title and the ultimate right of possession.1

“2. The sale of railroad and steamboat tickets by persons other than the companies or their agents as a business ness is not an employment in which they have any unqualified right to engage. A ticket is a mere incident to the business of the companies in transporting passengers. Like a baggage check, it is merely a method adopted by them for the transaction of their own business. The ticket itself possesses none of the ordinary elements of property and cannot, without the consent of the companies, form the basis of a legitimate independent business. At most it is but an evidence of the arrangement between the companies and their passengers in which others have no lawful interest. No right to transfer is given, and generally, none is intended. To hold that every person has a constitutional right to interfere with the relations between passengers and carriers, which is superior to the control of the legislature, would result in extending the restraints imposed upon the lawmaking power much farther than they have hitherto been supposed to exist, and would be an interference with the power vested in the legislative branch of the State government that is wholly unwarranted. It seems to me that third persons have no constitutional right to interfere with the relations between the carrier and passenger by the purchase and sale without its consent of tickets issued by the former, and that to establish such a right would be unauthorized by any existing principle of constitutional law. It is true the act recognizes the right of third persons to make sales of passage tickets, but that right is a limited one and can be properly exercised only by an agent of one of the companies furnishing the traveler with the transportation for which the ticket is purchased. But it is to be observed that as such sales are to be made by one of the companies furnishing the transportation, the company making it becomes responsible to the passengers and other carriers for any fraud perpetrated by its agent, and is in harmony with the general purpose of the act.”

The majority of the judges of the Court of Appeals, however, reversed the judgment of the Supreme Court, and held the act to be unconstitutional on two principal grounds: (1) Because the State has no right to prohibit altogether the carrying on of a business which is not inherently fraudulent, simply because some of those who are engaged therein have systematically practiced gross frauds upon others; and (2) because the act in question does not make the business of ticket brokerage unlawful, but makes it a monopoly, and vests such monopoly in the transportation companies of the State. The court also held that the argument, that a transportation ticket is not property in the constitutional sense, is not tenable. The importance of the principles of constitutional law justifies me, I think, in giving space to the following lengthy quotation from the opinion of Chief Judge Parker, who pronounced judgment for the court.

Judge Parker said in part:—

“The statute that appellant insists is in derogation of the limitation placed upon the legislative power by the people, through the constitution of the State, reads as follows: ‘Section 1. The Penal Code is hereby amended by inserting therein a new section, to be known as Section 615, to read as follows: Section 615. Sale of passage tickets on vessels and railroads forbidden except by agents specially authorized. No person shall issue or sell, or offer to sell, any passage ticket, or any instrument giving or purporting to give any right, either absolutely or upon any condition or contingency to a passage or conveyance upon any vessel or railway train, or a berth or stateroom in any vessel, unless he is an authorized agent of the owners or consignees of such vessels, or of the company running such train, except as allowed by Sections 616 and 622; and no person is deemed an authorized agent of such owners, consignees or company, within the meaning of the chapter, unless he has received authority in writing therefor, specifying the name of the company, line, vessel or railway for which he is authorized to act as agent, and the city, town or village, together with the street and street number, in which his office is kept, for the sale of tickets.’

“ ‘Section 2. Section six hundred and sixteen of the Penal Code is hereby amended so as to read as follows: Sec. 616. Sale by authorized agents restricted. No person, except as allowed in Section six hundred and twenty-two, shall ask, take or receive any money or valuable thing as a consideration for any passage or conveyance upon any vessel or railway train, or for the procurement of any ticket or instrument giving or purporting to give a right, either absolutely or upon a condition or contingency, to a passage or conveyance upon a vessel or railway train, or a berth or stateroom on a vessel, unless he is an authorized agent within the provisions of the last section; nor shall any person, as such agent, sell or offer to sell, any such ticket, instrument, berth or stateroom, or ask, take or receive any consideration for any such passage, conveyance, berth or stateroom, except at the office designated in his appointment, nor until he has been authorized to act as such agent according to the provisions of the last section, nor for a sum exceeding the price charged at the time of such sale by the company, owners or consignees of the vessel or railway mentioned in the ticket. Nothing in this section or chapter contained shall prevent the properly authorized agent of any transportation company from purchasing from the properly authorized agent of any other transportation company a ticket for a passenger to whom he may sell a ticket to travel over any part of the line for which he is the properly authorized agent, so as to enable such passenger to travel to the place or junction from which his ticket shall read.’

“The remaining portion of the section relates to the redemption of tickets purchased from an authorized agent of a railway company, under certain contingencies, and within certain periods of time, and is not in anywise involved in this appeal.

“Having observed how the statute reads, it will be well next to analyze it and see if we can find out what was intended to be accomplished, and is in fact accomplished, by the phraseology of the statute, in order that we may ascertain whether the statute is in contravention of any of the rights secured by the constitution to the citizen. It will be observed, in the first place, that it does not prohibit the sale of tickets absolutely, nor does it limit to the particular transportation company over whose route he desired to be conveyed, the right to sell tickets to the traveler. It may be said in passing that the last assertion is in conflict with the position taken by the learned judge who wrote the opinion of the appellate division, for he assumes that as only persons appointed agents can sell, the effect of the provision is that a corporation ‘shall only sell through its agents, and is merely a declaration that the corporation itself was to sell its tickets.’

“The first section and the first part of the second section do restrict the sale of passage tickets to agents specially authorized by transportation companies, and if there was nothing else in the statute upon the subject, it would bear the construction put upon it, that its only effect is to confine the right to sell passage tickets of a corporation to that corporation itself, which can act only through agents; but between the opening and the closing sentences of the second section may be found the following: ‘Nothing in this section or chapter contained shall prevent the properly authorized agent of any transportation company from purchasing from the properly authorized agent of any other transportation company a ticket for a passenger to whom he may sell a ticket to travel over any part of the line for which he is the properly authorized agent, so as to enable such passenger to travel to the place or junction from which his ticket shall read.’ Thus we see that the moment a man becomes the agent of a transportation company he is by that designation authorized to buy tickets of any other transportation company in the United States or the world, and may sell such tickets to any person who applies for them. In the sale of tickets of the various transportation companies, other than those of the company of which he is an agent, he necessarily acts as a broker. He can buy the tickets and sell them again, making a profit that may perhaps depend more or less on the degree of competition between railroads in various parts of the country. Clearly, the agent of a transportation company, in the purchase and sale of tickets of foreign corporations, is not engaged in selling the passage tickets of the transportation company appointing him. It is not the sale of the tickets of his principal alone that the agent is thus engaged in; but when a transportation company appoints an agent to sell its tickets, then the State, by this statute, steps in and attempts to clothe him with the power which it takes from all other citizens to deal in the tickets of as many other transportation companies as he may be able to make satisfactory arrangements with.

“This leads us to note another interesting feature of this remarkable statute. The buying and selling of passage tickets is not abolished; it is only condemned where the seller has not authority from some one of the transportation companies to act as its agent. It has happened before that for the protection of the people the lawmaking power has provided for an examination for the purpose of ascertaining whether applicants possessed suitable qualifications as to character, intelligence and financial responsibility to fill certain positions of trust, or to engage in a business which might prove dangerous to the people in the hands of a person either incompetent or of bad character; but in no instance has it conferred a general and unlimited power of appointment upon a class of persons or corporations wholly unconnected with the State government. It may possibly be that there was such a situation as would have justified an enactment placing some restrictions upon those engaged in the selling of passage tickets and prescribing penalties by way of fine or imprisonment for those who should break over such restraints. Our excise legislation affords an illustration. By its provisions all are permitted to sell liquor within certain limitations that apply to all citizens alike, and for the violation of the regulations of the traffic are provided certain penalties that are expected to assure to the public some measure of protection from non-law-abiding citizens engaged in the business. But this act simply turns over to the transportation companies the selection of those who are hereafter to be permitted to sell tickets. It imposes no restraints whatever upon the appointing power, nor upon the agents selected, other than that in the purchase of tickets he must confine himself to the properly authorized agents of the transportation companies. The business of buying and selling tickets, as to such agents, continues to be a legitimate business, but to all citizens other than those who may be selected by the transportation companies, the right to buy and sell tickets is denied, and an actual sale by them constitutes a felony. The act itself is silent as to the motive of its enactment by the legislature, and it contains no suggestion as to the public interests which its purpose is to subserve.

“Ticket brokerage as a business has been in existence for many years. It is a matter of common knowledge that at great agencies such as Cook’s and Gaze’s, tickets can be purchased over a great portion of the transportation routes of the world. Intending travelers in great numbers have gone to these agencies for advice as to choice of routes to be taken in contemplated journeys and to purchase the tickets for the trip, whether it should require days, or weeks or months to make it. The traveling public in large numbers have come to make use of the facilities afforded by such agencies, of which there are now very many. And Cook’s and Gaze’s are among the agencies that must go out of business in this State if this statute can live, unless some transportation company shall deem it wise to clothe them with the authority to act as its agents.

“It is asserted by counsel that the traveling public and the transportation companies have been so defrauded by the acts of the brokers in the selling of unused or alleged to be unused passage tickets, as to call for legislation of a protective character, of which this statute is the outcome. The tendency of the times undoubtedly is to rush to the legislature for a cure for all the grievances of citizens, whether real or imaginary, and many novel experiments in legislation are the result. But usually in case of wrongs penalties have been provided. It is novel legislation indeed that attempts to take away from all the people the right to conduct a given business because there are wrongdoers in it, from whose conduct the people suffer. But where in the statute is to be found the evidence that its purpose is to prevent fraud? ‘In the title of the act,’ answers counsel, and with that answer he has to be content. For while the act is entitled ‘Frauds in the sale of passage tickets,’ the body of the statute does not contain any reference to forged, altered, used or stolen tickets. The sale of such tickets is made a punishable offense under other sections of the Penal Code. The provisions of the act, therefore, have reference to the selling of valid tickets, regularly issued by a transportation company. Can the legislature declare such sales to be fraudulent, or prohibit them on the ground that it tends to prevent fraud? If the act prohibited is fraudulent, there can be no doubt that the legislature, under its police power, may provide for its punishment; but whether it may, under such power, interdict the sale of a valid ticket by one person to another upon the pretext that fraud will thus be prevented, presents a very different question. I confess I am unable to see how such a sale defrauds a transportation company. If a transportation company sells a ticket from New York to San Francisco, it undertakes to carry the holder from one place to the other. It costs the company no more to carry one person than it does the other. How then can it be defrauded or in any way prejudiced by the transfer of such a ticket by the purchaser to another person? It is said that the prohibition of such a sale tends to protect the traveler from being defrauded. If it is a sale of a valid ticket, no fraud can possibly result, and if it is not a sale of a valid ticket, then the sale is fraudulent and is prohibited by other provisions of the Penal Code.

“Only one prop remains which it is pretended can support the weight of this statute, and that is, that the penal laws not having proved sufficiently efficacious to wholly prevent fraud, an emergency is presented which justifies the taking away from the general public the right to engage in the business of ticket selling.

“Counsel argue that the helpfulness of the ticket broker in securing to the traveling public the benefits of such competition was of such a fraudulent character as to wholly justify the legislation, and appeal to the decisions quoted from in support of such contention. But we pass for the present the subject of motive, to be again referred to when we come to consider whether, under the police power, the legislation can be justified. Whatever the legislature’s motive, the fact is, that it has passed an act which does not declare ticket brokerage unlawful, for it allows any person who may be fortunate enough to secure an appointment as agent for a transportation company to engage in ticket brokerage; but the act does declare that if any person, other than an agent of a transportation company, undertakes to engage in the passenger ticket brokerage business he shall be guilty of a felony; in other words, that it is unlawful for all citizens of New York to engage in the buying and selling of passage tickets unless empowered to do so by the written appointment of a transportation company.

“Much has been said in argument with reference to this statute in a more agreeable vein, placing the statute in a somewhat more attractive form, but it is as well to go beneath the surface and get at the truth, which is that the statute was intended to and does, in fact, vest the control of the sale of passage tickets within this State, not only of transportation companies doing business in this State, but throughout the world, exclusively in the hands of such companies.

“The business of selling passage tickets continues, therefore, to be regarded as a lawful and legitimate business. Public policy is still declared to favor a business which recognizes the propriety of the middleman between the passenger and the transportation company, but the right to engage in it is denied to the general public.

“The question then is whether the organic law prohibits legislation of this character.

“Before referring to the provisions of the constitution that, it is confidently asserted, condemn such legislation, it may not be out of place to note that the granting of monopolies or exclusive privileges to corporations or persons has been regarded as an invasion of the rights of others to follow a lawful calling and an infringement of personal liberty, from the times of the reigns of Elizabeth and James. The statute of 21 Jac., abolishing monopolies, has been from the time of its enactment regarded as a statutory landmark of English liberty, and that nation has jealously preserved it. It was a part of that inheritance which our fathers brought with them and incorporated into the organic law, to the end that the lawmaking power should be restrained from interference with it.

“It is not contended that the business of ticket brokerage is in itself of a fraudulent character. The business can be honestly conducted; it has been so conducted in the past by honest men engaged in it; and the most that is asserted is that there are some men engaged in the business who have imposed on the public. The same assertion can be made with equal truth of every business, trade and profession. Because some coal dealers and vendors in sugar cheat in weight, and dealers in paints and oils in measurements, and in tobacco in quality, it has not hitherto, we venture to say, been thought the proper remedy to make it a felony for persons to hereafter engage in such business, unless they shall have been duly appointed as agents by the corporations manufacturing or producing the product.

“Still another motive for this enactment is suggested, and that is that its real purpose is to enable transportation companies to compel others with which they may enter into pooling arrangements to preserve their agreement from secret violation, which is frequently the outcome under the present ticket brokerage system, which offers an avenue by which the weaker corporation to such an agreement can dispose of its tickets at a price lower than that agreed upon.

* * * * * * * * * * *

“Again, it is said that ticket brokers enable the railroads to engage in unfair competition. This is accomplished by the sale to the broker by a competing railroad, at much less than the regular rates, of a block of tickets that the broker is enabled to sell to his customers, and this to a certain extent takes travel from its competitors. An opinion is cited in which the court in another jurisdiction denounces the ticket scalper for engaging in a business of this character, and pronounces such business fraudulent alike in its conception and operation; but we pass this opinion without other comment than to say whatever may be regarded as the law in other jurisdictions, in this one it is well established that the public welfare is best subserved by the encouragement of competition,1 and hence this so-called reason furnishes no support to the claim that this legislation was for the public good.”

To one who, like myself, places so high a value, as a constitutional protection against legislative tyranny, upon the principle that a legislature cannot constitutionally prohibit a trade or business which is not inherently fraudulent, because great frauds are committed by some who are engaged in the business, or because the character of the business makes the practice of fraud easy and its detection difficult; it is a matter of great gratification that these later cases, in which the constitutionality of the ticket-scalping laws has been sustained, do not rest their judgment upon a denial of that principle, although most of the opinions of the judges do refer to the commission of these frauds by unauthorized ticket agents as a justification for giving to the railroads and other common carriers the exclusive privilege of selling such tickets. Their chief ground for holding these laws to be constitutional is that a ticket is only a token, and not a piece of property which is the proper subject of general barter and sale; that it is merely evidence of a contract to carry the holder to his place of destination, and that its sale is merely an incident of the business of a common carrier, which can be exclusively given to agents of their own appointment, without infringing their constitutional right of any one else to engage in the business of selling the tickets, after they have been issued by the railroads. This argument is certainly a very strong one, if it be conceded that a ticket,—which is not expressly declared on its face to be non-transferable and which does not contain the name of the purchaser, who alone is entitled by the contract to make use of it;—in other words, that a general ticket, issued by a transportation company, is not property, whose free alienation inter-vivos is guaranteed by the constitution. But if this be denied, and such a ticket be held to be as much property in the constitutional sense as a note or bond, payable to bearer, there is nothing in the argument to sustain the constitutionality of the ticket-scalping law, in the face of the undoubted fact that the purpose of these laws is not so much the prevention of frauds upon the unsuspecting traveler, as the furtherance of the private interests of the railroads and other common carriers. I am inclined to believe that the policy of such laws is a part of the general policy of combinations of railroads in maintaining rates, and are designed to prevent some railroads from selling tickets through the ticket-brokers at a lower rate than the rate fixed by the combinations. As long as it is the policy of the law, not only to refuse aid in enforcing such combinations, but even to punish those who enter into such combinations, this would not furnish any constitutional justification for these laws. But, to recur to the argument that a ticket is not property; in the New York case, Judge Bartlett in his opinion says that the question, whether the purchaser of a ticket can be denied the right to sell it, was not before the court, but intimated that this question would be answered by him in the affirmative. But if the purchaser from the railroad could sell the ticket, why could not his vendee sell it too? So that we return to the original proposition, whether the business of selling transportation tickets, once issued by the companies, can be lawfully prohibited? It is clear that the railroads may issue tickets, as they do, which are non-transferable, and when their non-transferable character is stated on their face, no one but the original purchaser can make use of them. And if it is the policy of the transportation companies to issue that kind of ticket, they must take the measures necessary to secure their enforcement of that condition. There is no difference between a railroad ticket and any other license to make use of another’s property. Unless the license is non-transferable, by the law or by express agreement of the parties, it is as much the proper subject of alienation as any more stable right of interest in another’s property.

I have been drawn into a full discussion of these laws against ticket-scalping, because I believe that the Court of Appeals have, in deciding against their constitutionality, strengthened the constitutional barriers, not only against legislative interferences with the constitutional liberty in general, but also against the extension of the power of the legislature to create legal monopolies, or the increase of the powers of those already existing, whose creation has been justified by the apparent necessity of choosing between government and private monopolies.1

[1]Fry v. State of Indiana, 63 Ind. 552 (18 Am. Law Reg. (n. s.) 425; Commonwealth v. Wilson, 14 Phila. (Pa.) 384.

[1]Burdick v. People, 149 Ill. 600, 611; State v. Corbett, 57 Minn. 345; Janrien v. State (Tex. Cr. App. 99), 51 S. W. 1126.

[1]People v. Warden of City Prison, 26 App. Div. 228; 50 N. Y. S. 56.

[2]People ex rel. Tyroler v. Warden of City Prison, 157 N. Y. 116.

[1]Wynehamer v. People, 13 N. Y. 378, 487; Metropolitan Board v. Barrie, 34 N. Y. 657.

[2]People v. Budd, 117 N. Y. 1; People ex rel. v. B. & A. R. R. Co., 70 N. Y. 569; Munn v. Illinois, 94 U. S. 113.

[1]Hibbard v. N. Y. & E. R. R. Co., 15 N. Y. 455, 466; Quimby v. Vanderbilt, 17 N. Y. 306; Rawson v. Pa. R. R. Co., 48 N. Y. 212.

[1]People v. Sheldon, 139 N. Y. 263; Judd v. Harrington, id. 105.

[1]As to which see post, §§ 127, 128.