Weller v. New York/Opinion of the Court

Chapter 590, New York Laws 1922, added eight sections, 167-174, to the General Business Law of the State. They are copied in the margin. Section 168 directs:

'No person, firm or corporation shall resell or engage in the business of     reselling any tickets of admission or any other evidence of      the right of entry to a theater, place of amusement or      entertainment, or other places where public exhibitions,      games, contests or performances are held without having first      procured a license therefor from the comptroller.'

And section 173 declares every violation of the inhibition shall be a misdemeanor.

By an information in the Court of Special Sessions, New York City, the District Attorney accused plaintiff in error of engaging in the business of reselling theater tickets without the license required by law. The evidence showed he was engaged in the business, and it was conceded he had never taken out a license or complied with chapter 590. His defense rested upon the claim that the statute is repugnant to the Fourteenth Amendment. The trial court adjudged him guilty and imposed a fine of $25. This was affirmed by the Appellate Division and by the Court of Appeals. People v. Weller, 207 App. Div. 337, 202 N. Y. S. 149; Id., 237 N. Y. 316, 143 N.E. 205. In an extended opinion the latter court upheld the challenged enactment, but said nothing of the possibility of sustaining the license provisions if those relating to resale prices were invalid.

Counsel for plaintiff in error now insists that the two provisions are inseparable; that those which undertake to establish resale prices are clearly invalid; and, consequently, the whole act must fall. On the contrary, counsel for the prople maintain that the power of the state to require such licenses is clear and that we need not determine the validity of the price restrictions.

It is not, and we think it cannot, seriously be urged that the state lacked power to require licenses of those engaging in the business of reselling theater tickets. The conviction and sentence were for failure to observe that requirement. In the absence of an authoritative announcement of another view by some court of the state we shall hold this provision severable and valid. Brazee v. Michigan, 241 U.S. 340, 36 S.C.t. 561, 60 L. Ed. 1034, Ann. Cas. 1917C, 522. The statute itself declares (section 174):

'In case it be judicially determined that any section of this     article is unconstitutional or otherwise invalid, such      determination shall not affect the validity or effect of the      remaining provisions of the article.'

If section 172, which restricts resale prices, were eliminated, a workable plan would still remain. See Dorchy v. Kansas, 264 U.S. 286, 44 S.C.t. 323, 68 L. Ed. 686.

The judgment of the court below is affirmed.