Tyson & Brother v. Banton

The Court's decision was far from unanimous. While a five-vote majority found nothing in the Fourteenth Amendment to suggest that tickets were not to be protected as property, four dissenting judges could find nothing in the same amendment prohibiting regulation in the public interest. Justice Holmes saw nothing in the entire Constitution that prevented the people of New York from enacting protective regulations like the resale law, if widespread agreement existed that such a law should be passed. Justice Holmes was less concerned with the merits of the New York case in particular than with what he considered to be the Court's repudiation of the public's will, properly expressed through their legislature. "We fear to grant power," wrote Holmes, "and are unwilling to recognize it when it exists."

Holmes was joined in his opinion by Justice Brandeis, both of whom added their signatures to a separate dissent by Justice Stone. Noting that the resale law did not attempt to set the price of tickets--the law merely required each ticket to have its price printed on its face and limited resale profit to 50 cents per ticket, a sum even most licensed agents agreed was the norm--Stone found no constitutional basis for forbidding regulation.

A third separate dissent was filed by Justice Sanford, who noted that some agents were in collusion with theatre owners willing to sell advance tickets in large numbers. While this premature exchange of money benefited owners worried about unsuccessful shows and agents who wanted to monopolize access to the best theatre seats, the arrangement left the public with no protection against extortionate resale rates. Justice Sanford reminded the Court of its decision in Munn v. Illinois (1876). In that decision, the Court found that the price of grain could not be regulated, but because grain elevators controlled public access to the product, they were found to be subject to regulation. Justice Sanford cast the ticket resale agents in a similar intermediary role and believed that the public should not be at their mercy.

The Court's controversial decision was met with predictable approval by the Theatre Ticket Brokers Association, whose members promised not to use the Court's decision as an excuse to inflate the resale price of tickets unfairly. The New York Times was less optimistic about the results of the law's invalidation, responding with an editorial entitled "Ticket Scalpers Win." The Supreme Court's decision doomed the resale law, but the vigor of New York State investigators remained undiminished, filling the papers with tales of Broadway ticket frauds.