"[A] state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution ..., and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain"
How later courts described this case
- "[A] state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution ..., and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain"
- dissenting opinion joined by Brandeis, J.
- dissenting opinion joined by Brandéis, J.
- striking down a statute regulating the resale price of theater tickets
Written by the judges who cited it.
Later courts went against this
Overruled implicitly by Gold v. DiCarlo, 380 U.S. 520 (1965)
Listed in the Constitution Annotated's table of Supreme Court decisions overruled by subsequent decision (entry 113).
Overruled implicitly by Nebbia v. New York, 291 U.S. 502 (1934)
The Supreme Court, in Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469, effectively overruled Tyson, supra, in sustaining a state statute regulating the price at which milk might be sold and recognizing the dairy interest as affected with the public interest and subject to the exercise of the police power of the state in an expanding economy and an increasingly interdependent society.
The opinion
Me. Justice Holmes,
dissenting.
•We fear to grant power and are unwilling to recognize it when it exists. The States very generally have stripped jury trials of one of their most important characteristics by forbidding the judges to advise the jury upon the facts (Graham v. United States, 231 U. S. 474, 480 ), and when legislatures are held to be authorized to do anything considerably affecting public welfare it is Covered by apologetic phrases like the police power, or the statement that the business concerned has been dedicated to a public use. The former expression is convenient, to be sure, to conciliate the mind to something that needs explanation: the fact that the constitutional requirement of compensation *446 when property is taken cannot be pressed to its grammatical extreme; that property rights may be taken for public purposes without pay if you do not take too much; that some play must be allowed to the joints if the machine is to work. But police power often is used in a wide sense to cover and, as I said, to apologize for the general power of the legislature to make a part of the community uncomfortable by a change.
I do not believe in such apologies. I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain. Coming down to the case before us I think, as I intimated in Adkins v. Children’s Hospital, 261 U. S. 525, 569 , that the notion that a business is clothed with a public interest and has been devoted to the public use is little more than a fiction intended to beautifv what is disagreeable to the sufferers. The truth seems to me to be that, subject to compensation' when compensation is due, the legislature may forbid or restrict any business when it has a sufficient force of public opinion behind it. Lotteries were thought useful adjuncts of the State a century or so ago; now they are believed to be immoral and they have been stopped. Wine has been thought good for man from the time of the Apostles until recent years. But when public opinion changed it did not need the Eighteenth Amendment, notwithstanding the Fourteenth, to enable a State to say that the business should end. Mugler v. Kansas, 123 U. S. 623 . What has happened to lotteries and wine might happen to theatres in some moral storm of the future, not because theatres were devoted to. a public use, but because people had come to think that way.
*447 But if we are to yield to fashionable conventions, it seems to me that theatres are as much devoted to public use as anything well can be. We have not that respect foí. art that is one of the glories of France. But to many people the superfluous is the necessary, and it seems to me that Government does not go/beyond its sphere in attempting to make life livable for them. I am far from saying that I think this particular law a wise and rational provision. That is not my affair. But if the people of the State of New York speaking by their authorized voice say that they want it, I see nothing in the Constitution of. the United States to prevent their having their will 1 . -
Mr. Justice Brandéis concurs in this opinion.
Turning to the broader question, the public importance of theatres has been manifested in regulator} legislation in this country from the earliest times. -Beale, Innkeepers, § 325n; Cecil v. Green, 161 Ill. 265, 268 . In New York, physical construction of theatres with respect to fire escapes, exits and seating is regulated, Village Law, § 90, par. 25; licenses to produce shows are required, Town Law, § 217; Sunday entertainments of certain kinds, Penal Code, § 2145, cf. People v. Hoym, 20 How. Prac. 76 ; Neuendorff v. Duryea, 6 Daly 276 ; discrimination because of race or color, Penal Code, § 514, People v. King, 110 N. Y. 418 , or against persons wearing United States uniforms, Penal Code, § 517; appearance of children under fourteen upon the stage, People v. Ewer, 141 N. Y. 129 ; admission of children under sixteen, Penal Code, § 484; presentation of certain types of exhibitions, Penal Code, §§ 831, 833; or immoral shows and exhibitions, Penal Code/ § 1140a; or plays in which a living character represents the Deity, Penal Code,§ 2074; are all prohibited. Section 3657, Page, Ohio Gen. Code, empowering municipalities to require licensing of theatrical exhibitions and theatre ticket selling and § 12600-2 et seq. regulating physical construction, etc., are typical of present day statutes. This Court has upheld legislation regulating admissions to public entertainments, Western Turf Association v. Greenberg, 204 U. S. 359 ; and providipg for censorship of motion pictures, Mutual Film Corp. v. Ohio Industrial Commission, 236 U. S. 230 .