Court of Gen. Sessions, N. Y. County, December, 1919. [Vol. 109.

unreasonable as a regulation, and unauthorized as a tax."

In People ex rel. Moskowitz v. Jenkins, supra, the court said: "It is undoubtedly true that the legislature may impose on professions, callings, businesses and vocations license fees for the purpose of revenue, and though termed license fees, they are enacted not under the police power, but under the power of taxation. There exists also in the legislature the right to classify vocations or businesses for the purpose of taxation. One class may be taxed at one rate and another class at another rate. But the right to classify, though very broad, is not absolutely unlimited.

"Treating the statute and the ordinance passed under it as an exercise of the taxing power (though I have no idea it ever was intended as such), the classification is plainly arbitrary and unreasonable.”

Section 4, article 1, of chapter 3 of the ordinances is also attacked on the ground that it is unreasonable, inasmuch as it provides for the revocation and annulment of the license on the determination of a single judge or justice, but deprives the licensee of the right to appeal. This section purports to be based on section 1476 of the Greater New York charter, which is part of title 2, of chapter 22 of that instrument. This objection is well taken. Under such a provision a licensee may be deprived of the means of earning his livelihood, his business may be destroyed, and his property rendered worthless by the summary decision of a single judge, however contrary to the law and fact it may be.

The legislature has the absolute right to regulate appeals, and, so far as the Constitution does not permit the right of appeal, to deny such right. People v. Dunn, 157 N. Y. 528, 539. It is clear that the legislature has not vested in the board of aldermen any specific

Misc.] Court of Gen. Sessions, N. Y. County, December, 1919.

grant of power whch permits it to pass an ordinance containing a provision prohibiting a licensed ticket speculator from appealing from a decision revoking his license.

While section 1476 of the charter contains a provision which prohibits a licensee for a public exhibition to appeal, such provision does not confer any authority upon the board of aldermen to prohibit the right of a ticket speculator to appeal, because that section, supra, affects only a licensee to whom a license was granted for a public exhibition. Furthermore, section 1476 was a specific enactment by the legislature.

This shows beyond peradventure that it was not intended, in the absence of such express authority, by the legislature, to confer upon the board of aldermen the right to prohibit an appeal in the case of a ticket speculator.

There remains to be considered whether the learned magistrate erred in excluding evidence offered by the defendants for the purpose of showing the unreasonableness of the ordinance.

It is conceded that the ordinance was not passed pursuant to any specific authority of the legislature, and that it was not specifically adopted by that body after its enactment by the board of aldermen. This being so, the defendants had the undoubted right to offer evidence to support their claim that the legislation was unreasonable and oppressive.

The exclusion of this evidence was clearly in violation of the rule governing the right of a defendant to attack a mere ordinance adopted by the board of aldermen in pursuance of general authority of the legislature. Anderson v. Steinway Sons, 178 App. Div. 507, 517; affd., 221 N. Y. 639; Matter of Stubbe v. Adamson, 220 id. 459.

Court of Gen. Sessions, N. Y. County, December, 1919. [Vol. 109.

In Anderson v. Steinway Sons, 178 App. Div. 517, the court said: "It is well settled that in the case of an act of the Legislature, or of a municipal ordinance which has been expressly ratified by the Legislature, evidence may not, as a general rule, be introduced for the purpose of showing that the statute or ordinance is unreasonable and, therefore, unconstitutional, while in the case of an ordinance or municipal regulation, adopted under authority of the Legislature, but not specifically ratified after adoption, it may be attacked on the ground that it is unreasonable, and to support this claim evidence may be introduced."

In Matter of Stubbe v. Adamson, supra, the court said: "It is well settled that the rules governing an attack upon a mere ordinance adopted by municipal authorities in pursuance of general authority are quite different than those which are applicable to an attack upon a statute passed by the legislature or an ordinance adopted under specific authority of the legislature or or approved by that body after adoption. Enforcement of a regulation having the force of an ordinary municipal ordinance passed under general authority may be opposed on the ground that the ordinance is unreasonable and evidence may be introduced for the purpose of establishing this defense (Mayor, etc., of N. Y. v. D. D., E. B. & B. R. R. Co., 133 N. Y. 104; Village of Carthage v. Frederick, 122 N. Y. 268) whereas in the case of a statute or of an ordinance having the force of a statute it is equally well settled as a general proposition that evidence may not be introduced for the purpose of showing that the statute or ordinance is unreasonable, and, therefore, unconstitutional.

"Where, however, the power to legislate is general or implied, and the manner of exercising it is not specified, there must be a reasonable use of such

Misc.] Court of Gen. Sessions, N. Y. County, December, 1919.

power, or the ordinance may be declared invalid by the courts. (Village of Carthage v. Frederick, supra, p. 271.)"

In order that there should be no misunderstanding as to the questions passed upon, I deem it necessary to recapitulate the points decided, and this opinion is, therefore, limited to the following:

1. That the price-fixing and licensing provisions in relation to ticket brokers contained in section 11a of the ordinance are invalid;

2. That the license fee for the year 1919 is excessive and more than reasonably necessary to reimburse the city for the regulation and supervision of the business of a ticket broker;

3. That the board of aldermen was without power to enact a provision prohibiting a licensed ticket broker from appealing from a decision revoking his license; and,

4. That error was committed by the magistrate in excluding evidence offered by the defendants for the purpose of showing the unreasonableness of section 11a of the ordinance.

In deciding the questions involved in these cases, it must be understood that the provisions of sections 3, 3a and 12, of article 1, of chapter 3, of the Code of Ordinances were not considered, as those sections in no way affect the decision herein rendered; and no opinion is expressed thereon, for the further reason that the defendants not being injured by those sections cannot raise any objection as to their validity on behalf of persons who might be affected thereby. Therefore those sections must stand. For the same reasons the provision contained in section 11a which reads: "This section shall not be deemed to require a licensee under sections one and two of this article to obtain an additional license for the sale by him of tick

Court of Gen. Sessions, N. Y. County, December, 1919. [Vol. 109.

ets of admission to a licensed exhibition or performance conducted by him;" must likewise stand, because this provision relates to a person exhibiting entertainments of the stage to the public.

I am not unappreciative of the fact that this ordinance was passed in answer to a widespread public demand to prevent ticket brokers from charging extortionate prices for admission to theatres where popular entertainments are produced, the result being that persons of ordinary means find it almost impossible to purchase tickets for such plays or are required to wait weeks, if not months, before the privilege is accorded to them to witness such performance at a reasonable price.

Both the theatre and the ticket speculator thrive because the public is willing to pay any excessive price that may be asked.

There is no doubt that the evil flowing from this business should be corrected, but the relief unfortunately, for the reasons already pointed out, cannot come through the courts for the courts are merely the interpreters of the law. In California and Illinois the people have sought to remedy a similar situation, but the legislation was declared to be unconstitutional.

The remedy, in my judgment, can come from the producing managers of the theatres. This can be accomplished through the medium of a contract entered into between the producing managers of the theatres and ticket brokers to sell tickets at reasonable prices. This arrangement can be made effective if the parties will act in good faith. Fixing reasonable prices for theatre tickets will not violate the law of monopoly because entertainments of the stage do not come within the inhibition of the anti-monopoly law. In fact, the entire subject is within the absolute