embracing a version of the affected-with-the-public-interest test
How later courts described this case
- embracing a version of the affected-with-the-public-interest test
Written by the judges who cited it.
The opinion
*468 CATES, Presiding Judge
(concurring).
A court should not be a disputatious forum for the debating and resolving of questions within the realm of Political Economy. The discrepancies between Adam Smith and Lord Keynes may illustrate but should not control legal controversies.
Here, if we adopt the dissent of Brandies in New State Ice Co. v. Liebmann, 285 U.S. 262 at 302-303 , 52 S.Ct. 371 , 76 L.Ed. 747 then I cannot see how sporting events — at least as to the resale prices— reasonably require regulation for the public protection.
To adopt the views of my Brother Tyson would mean that the Legislature could set (high or low) the prices for Alabama or Auburn tickets, the coaches’ salaries, working hours, recruitment inducements, scholarships, even- — by contract — the post graduation bonuses received by the players, earned by playing for one of our egregious public universities. The Legislature would enter the Wonderland of deciding, for example, whether 10%, 20%, 50% or any other fraction of all the football tickets shall be reserved for Boy or Girl Scouts, Disabled Veterans, retired ministers of the gospel or rabbis, parents of teen age prospective players, alumni or any other appropriate group within a reasonable classification.
Scalping in the environs of a gladiatorial arena no doubt can be a public nuisance and hence the City of Birmingham has the power to suppress it. But to prevent an otherwise honest profit is not in my way of thinking regulating a nuisance.
Perhaps bread and circuses may become a staple of American life. Autumn (and early Winter) television tends to this conclusion.
If, in the necroptic dissection of Tyson & Brother v. Banton, 273 U.S. 418 , 47 S.Ct. 426 , 71 L.Ed. 718 , we advert to Mr. Justice Stone’s prophetic dissent in Ribnik v. McBride, 277 U.S. 350 , 48 S.Ct. 545 , 72 L.Ed. 913 , then I feel it is certain that we cannot say that the profitable reselling of football tickets reflects “any combination of circumstances [which] seriously curtails the regulative force of competition so that buyers or sellers are placed at such a disadvantage in the bargaining struggle that a legislature might reasonably anticipate serious consequences to the community as a whole.”
A football game can, of course, by the owner or renter of the stadium be made into a social affair with engraved invitations, formulas of repondez-s’il-vous-plait and a prohibition against gate crashers and other non-invitees. I think we can take notice that this effeteness of the days of Lester De Pester has imitated the Bedouin who folded his tent and silently stole away.
Finally, in this day of worry about urban crime I think that it is a poor allocation of the manpower of the Birmingham constabulary to root out grifters peddling football ducats on the main street of the city.
I firmly adhere to the majority opinion and have written this to — hopefully—reinforce it.