This appeal is based upon the alleged unconstitutionality of chapter 506 of the Laws of 1897, entitled "An act to amend the Penal Code, relative to the sale of passenger tickets."
Chapter XII of title XV of the Penal Code, amended by this statute, is entitled, "Fraud in the sale of passage tickets." The relator insists that the act of 1897 violates article 1, section 1, of the State Constitution, which provides that no member of the state shall be disfranchised or deprived of his rights or privileges unless by the law of the land and the judgment of his peers; also article 1, section 6, of the State Constitution, providing that no person shall be deprived of life, liberty or property without due process of law; also the fourteenth amendment of the Constitution of the United States, which provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws; also article 3, section 1, of the State Constitution, vesting the legislative *Page 134 power of the state in a senate and assembly; also article 1, section 8, subdivision 3, of the Constitution of the United States providing that Congress shall have power to regulate commerce among the several states.
The learned counsel for the relator and appellant asks us to consider in the light of these constitutional prohibitions the act of 1897, which makes, as he insists, the pursuit of a business which for forty years prior to September 1st, 1897, was legitimate and lawful, a felony.
The business referred to is described in the relator's petition for the writ of habeas corpus as "selling and offering for sale, and procuring tickets, giving and purporting to give, the right to a passage and conveyance on vessels and railway trains."
It should be observed that the act of 1897 is merely an amendment of a chapter of the Penal Code containing some twelve sections, and inserts therein one new section and amends another.
It is not, in a general sense, new legislation, but engrafts some additional provisions upon statutory enactments that have existed in one form or another for forty years or more.
A short review of this legislation, which is not referred to in the briefs of counsel, or the opinion below, may be profitable at this time.
Chapter 470, Laws of 1857, is entitled "An act to prevent frauds in the sale of tickets to passengers upon railroads, steamboats and steamships," and provides that no person other than the agents or employees of the carriers named, duly appointed by them for that purpose, by a proper authority in writing, shall offer for sale, or sell within this state, any tickets, etc.
A violation of this act is made a misdemeanor, punishable by a fine of not less than one hundred dollars, or by imprisonment not less than three months, or by both such fine and imprisonment.
Chapter 103, Laws of 1860, is entitled "An act to prevent frauds in the sale of tickets upon steamboats, steamships and other vessels," and is confined to the sale of tickets upon various *Page 135 vessels, and while longer and more comprehensive than the act of 1857, is similar in its restrictive provisions and makes the penalty for violation imprisonment in a state prison for a term of not more than two years, or by imprisonment in a county jail not less than six months.
Chapter 820, Laws of 1868, amends the act of 1857.
Chapter 201, Laws of 1876, is entitled "An act to prevent frauds in the sale of staterooms, berths and tickets upon steamboats, and steamships, and other vessels," and is in harmony with the previous legislation upon the general subject.
While these laws remained upon the statute book, and in 1881, the Penal Code was adopted (Ch. 676, Laws 1881), which in title XV, chapter XII contained practically the same provisions as the laws of 1857 and 1860.
Chapter 384, Laws of 1882, amended the Penal Code by repealing section 615, being the opening section of said chapter XII, but the remaining sections were retained, which forbade the sale of tickets by persons other than authorized agents of companies.
Chapter 593, Laws of 1886, repealed chapter 470, Laws of 1857; sections one, two, three, four, five, six, seven, nine and eleven of chapter 103 of the Laws of 1860, and chapter 201 of the Laws of 1876.
Chapter 662, Laws of 1892, amended sections 618 and 621 of the Penal Code, relating to this subject, by increasing the penalty for the violation of the statute to a maximum imprisonment of two years and declaring that offices kept for the purpose of selling tickets in violation of any provisions of the chapter are to be deemed disorderly houses.
This seems to have been the last legislation upon this general subject until chapter 506 of the Laws of 1897, the act now under consideration, which enacted a new section, six hundred and fifteen of the Penal Code in place of the old section repealed by chapter 384 of the Laws of 1882, and also amended section six hundred and sixteen.
While the argument based upon practical construction is not conclusive, it is entitled to great weight. *Page 136
When we are confronted, as in this case, by a declared public policy of the state which has existed for more than a generation, its illegality ought to be made very clearly to appear before the court holds it to be in violation of constitutional provisions.
It may be stated in this connection that similar legislation exists in several other states, and has been uniformly sustained by the courts. (Burdick v. People, 149 Ill. 600; State v.Corbett, 57 Minn. 345; Commonwealth v. Wilson, 14 Philadelphia, 384.)
The only question presented for our decision at this time may be thus stated: Is it competent for the legislature, in the exercise of the police power and in regulating the sale of passage tickets by common carriers, to prohibit sales by ticket brokers, unless they are duly authorized to make such sales by the owners or charterers of the vessel, or by the company running the railway train upon which passage tickets are offered for sale?
We are not now called upon to determine the privileges enjoyed by, or obligations imposed upon, common carriers by this legislation; nor are we to decide whether the individual who has purchased a ticket in good faith, with the intention of using the same, has been deprived of his property without due process of law when prohibited from selling his unused ticket, and compelled to resort to a more or less imperfect scheme of redemption by the individuals or corporations issuing it.
The relator is in no way concerned with these questions, and his appeal must stand or fall upon the proper construction of the law relating to the sale of passage tickets by ticket brokers. The statute might be void as to the passenger holding an unused ticket, and valid as to the ticket broker.
The court should express no opinion on this point. We are not only confined to the single question pointed out, but we have nothing to do with those questions of fact that were presented with great ability by the learned counsel for the appellant, as they have no place in the record.
We have to deal with the legal question of legislative power *Page 137 only, and are not judicially informed as to the facts that induced the legislature to act, save as they may be inferred from that which appears upon the face of the legislation, the validity of which is now challenged.
The acts prior to the Penal Code aver in their titles that they were enacted to prevent frauds in the sale of tickets to passengers upon railways and vessels, and the chapter of the Penal Code that has taken the place of these earlier statutes is entitled, "Fraud in the sale of tickets."
It may, therefore, be fairly and reasonably inferred from these declarations on the face of the statutes that the legislature was moved to act in order to prevent frauds upon passengers and common carriers.
As this record presents only the constitutionality of the act in question upon its face, we are not advised judicially of the evils which many years of legislation have sought to remedy.
So we come to the question whether it is competent for the legislature, in the exercise of the police power, in order to prevent frauds in the sales of passage tickets by land and water, to confine their sale to the individuals and corporations issuing them, or their duly authorized agents?
In other words, has the relator such an inalienable right to deal in these tickets by purchase and sale that to deprive him of it is to strip him of his liberty, rights, privileges and property without the judgment of his peers and due process of law?
The appellant insists that to confine the sale of tickets to the common carriers, or their agents, not only works these results as to him, but is to discriminate against every citizen and build up a monopoly.
We are cited in a learned brief to many cases in the Supreme Court of the United States, our own court, and other courts, to sustain this position.
The reasonable limits of this discussion will not permit a review of these authorities, but I am of opinion they have no application to the case at bar. *Page 138
It has been often remarked by judicial writers that it is difficult and undesirable to define the limits of the police power. It has been said to be "the general power of a government to preserve and promote the public welfare even at the expense of private rights." (Am. Eng. Enc. of Law, vol. 18, p. 740.)
Judge Cooley, in his Constitutional Limitations (4th ed.), 719, says: "The limit of the police power in these cases must be this: The regulations must have reference to the comfort, safety and welfare of society."
The Supreme Court of Illinois, in Town of Lake View v. RoseHill Cemetery Co. (70 Ill. 194), referring to the police power, said:
"It may be assumed it is a power co-extensive with self-protection, and is not inaptly termed `the law of paramount necessity.' * * * It may be said to be that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of society."
The Supreme Court of the United States (In re Rahrer,140 U.S. 554) pointed out that it is within the power of the state to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order and prosperity.
It was, as it seems to me, a reasonable and proper exercise of the police power by the legislature, when seeking to put an end to frauds in the sale of passage tickets, to require carriers, who are usually created by legislation, to sell their own tickets either directly or through duly authorized agents.
It is always the fact that the exercise of the police power by the legislature leads to loss and inconvenience in the cases of many individuals; it is the inevitable result and must be endured unless personal and property rights are invaded to such an extent that constitutional provisions are violated.
The relator insists that he is deprived of his property without due process of law.
We do not have here presented, as before intimated, the question which might arise in the case of the purchaser of a *Page 139 ticket in good faith intending to use the same, but, being unexpectedly prevented from so doing, desires to sell it.
This relator has no such special property in the ticket as the supposed case discloses, but is a mere dealer or speculator in these symbols or tokens.
The relator claims the same right to traffic in passage tickets as he would have to buy and sell cotton, grain or any other article of personal property that can be seen and handled.
The nature of a passage ticket has been repeatedly considered by this court. In Hibbard v. N.Y. and E.R.R. Co. (15 N.Y. 455,466) the plaintiff was ejected from the train because he refused to show his ticket.
The plaintiff recovered damages below, but this court reversed, and in its opinion said:
"The ticket is the property of the railroad company, and is a part of the means by which it conducts its business. It is delivered to the passenger to be held by him, temporarily, for a special purpose, and who, to that extent, acquires a special property in it.
"When the journey is ended, or about to end, it is to be redelivered to the conductor.
"It serves a threefold purpose: it is evidence in the passenger's hands that he has paid his fare and has a right within the cars; it insures the payment of the passage money by all who take seats, and when it is redelivered to the company it becomes a voucher in its hands, against the office or agent who issued it, in the adjustment of its accounts."
It thus appears that the original and legitimate function of the ticket is to carry out a transaction between the carrier and the passenger, the ticket being the property of the carrier, while the passenger is entitled to retain it in his possession until the completion of his journey.
In Quimby v. Vanderbilt (17 N.Y. 306) this court held that passage tickets are generally to be regarded as tokens rather than contracts, and are not within the rule excluding parol evidence to vary a written agreement. *Page 140
In Rawson v. Penn. Railroad Co. (48 N.Y. 212) the court held that a ticket does not generally contain any contract and is not intended to. It is a mere token or voucher adopted for convenience to show that the passenger has paid his fare from one place to another.
I am of opinion that neither the act of 1897, nor the statute it amends, deprives the relator of his property without due process of law.
The relator has no such vested right as a ticket broker to traffic in the purchase and sale of these symbols or tokens which are the property of the carrier, as has the merchant dealing in goods, wares and merchandise.
If the legislature deemed this interference in the business of the common carrier relating to the sale of passage tickets as leading to great frauds and abuses, it was competent for that body to put an end to them even if, as may be possible in the relator's case, ticket brokers were unfavorably affected who were in no way responsible for the evils sought to be remedied.
This is not the case of the legislature saying to the merchant, you shall no longer buy and sell and get gain — you must henceforth abstain from dealing in those articles of merchandise the handling of which by land and sea constitutes the commerce of the world.
This is the case of the legislature saying to the citizen, you must not interfere with the due and orderly conduct of business between the common carrier and the passenger in the sale and purchase of the symbol or token used for the purpose, as it leads to frauds upon not only the common carrier and the first-class passenger, but the emigrant as well (see Penal Code, § 626), and in the exercise of the police power to protect the traveling public, we enact that the passage ticket of the common carrier shall be sold only by it or its agents.
In sustaining this exercise of the police power it is not necessary to refer in detail to the legislation regulating the conduct of business in various ways in order to prevent fraud *Page 141 and promote the welfare of society, which has been uniformly sustained in this and other states.
It is further insisted on behalf of the relator that the act of 1897 is unconstitutional because it amounts to a regulation of commerce among the several states by the legislature of this state.
It is difficult to understand how any such result is accomplished by this legislation.
It has often been said that legislation by a state may, in a great variety of ways, affect commerce and persons engaged in it without constituting a regulation of it within the meaning of the Constitution of the United States. (Kidd v. Pearson,128 U.S. 1, 23; Hall v. De Cuir, 95 U.S. 485, 487, 488; Sherlock v.Alling, 93 U.S. 99, 103; State Tax on Railway Gross Receipts, 15 Wall. 284; Munn v. Illinois, 94 U.S. 113; C., B. Q.R.R.Co. v. Iowa, 94 U.S. 155; Pound v. Turck, 95 U.S. 459.)
The act of 1897 does indeed affect ticket brokers who were, in a sense, engaged in interstate commerce, but it cannot properly be said that it was an effort on the part of the legislature of this state to regulate commerce, within the meaning of the Federal Constitution. The traveling public is at liberty to freely come and go as heretofore, and the fact that they are prohibited from dealing with the unauthorized ticket broker offers no obstacle to interstate commerce.
The act of 1897 deals with the ticket broker as a resident of this state carrying on his business here, and there is no attempt to usurp the powers of Congress to regulate interstate commerce.
It is finally argued on behalf of relator that the legislation offends the Constitution of this state because it is practically an abdication of governmental functions in favor of private individuals and corporations.
The statement of the argument is that the legislature has left it to private agencies to determine who shall and who shall not be permitted to carry on the business of selling tickets.
This argument refutes itself. *Page 142
The legislature, in the constitutional exercise of the police power, has said to the common carrier, you must select and duly commission the agents who are to sell your passage tickets, and no one else can engage in that business.
This is certainly not an abdication of governmental functions, but a wise and proper exercise of them, as I view the situation.
I have carefully considered the elaborate argument presented in the appellant's brief, but see no reason to disagree with the conclusions reached by the learned Appellate Division.
The order appealed from should be affirmed.