Recognizing the justice of recent criticisms upon the increase of long and argumentative dissenting opinions in this court, still, the importance of the principle announced in the decision of this case demands a statement of the reasons which prevent my concurring with the majority.
The case involves the validity of a statute which continues a protection to the public and to transportation companies against fraud in the sale of passage tickets which has existed in this state in substantially the same form for more than forty years. Therefore, the present statute cannot be held unconstitutional without practically determining that for all that time the affairs of this state in that respect have been controlled by statutes which were invalid as being in excess of the powers of the legislature to enact. The passage and continuance upon the statute books of this and similar statutes for so many years show that during that time a legislative policy has prevailed in this state which has been sanctioned by numerous legislative acts. It has never been questioned by the courts, and has been acquiesced in by the departments of the state government. This constitutes such a practical construction of the constitutional provisions invoked by the appellant as to justify this court in holding the statute to be within the police power of the state, especially as similar statutes had been in *Page 143 force for many years when the present Constitution was adopted. (People ex rel. v. Dayton, 55 N.Y. 367, 378; People v.Home Ins. Co., 92 N.Y. 328, 337; Matter of W.S.A. P.R.R.Co., 115 N.Y. 442, 447; People ex rel. v. Murray, 149 N.Y. 367,376.)
The real inquiry here presented is whether the legislature may provide that steamboat and railroad tickets shall not be sold by irresponsible or unknown persons, thus exposing travelers to fraud, and require them to be so sold that the companies issuing them shall be responsible to the traveler who purchases them. While the statute forbids persons other than the companies or their duly constituted agents making such sales, still its purpose was to compel the companies to sell their own tickets and thus become responsible. Manifestly, the method prescribed by this act was the only efficient one that could be adopted to secure the end sought. If the companies had merely been forbidden to permit such sales, their permission could never be established, and thus the purpose of the statute would be thwarted.
The single question presented is whether the legislature was authorized to enact a statute requiring railroad and steamboat companies, or, where the passage extends over more than one line, one of such companies, to sell the tickets for such passage by their duly constituted agents, and forbidding such sales by persons not sustaining that relation, under penalty of imprisonment. If this act is in conflict with the fundamental law, it is for the reason that it affects the liberty of the citizen to engage in a legitimate employment or business in a lawful way, or because it is destructive of some property right which he lawfully possesses.
It has been asserted by counsel that the business of ticket brokerage has been a legitimate one in this state for more than forty years. With that statement I am unable to agree. During that entire time a law has existed making the sale of railroad and steamboat tickets by others than the companies or their properly authorized agents a crime.
Nor do I understand how it can be properly said that railroad *Page 144 or steamboat tickets are property, within the common acceptation of that term, when in the hands of others than passengers, as during all those years the statute has continuously declared that passage tickets should not become property in the hands of others, at least, so as to include the ordinary right of sale. Their right of sale was limited to the company over whose route the traveler desired to pass, or, where the route was over several lines, to one of the companies over whose line the passenger intended to travel.
The manifest purpose of this statute was to prevent fraud in the sale of passage tickets, and thus protect the purchaser and companies as well. I do not see how it can be correctly said that the legislature was silent as to the motive of passing these various acts. In each the title of the act disclosed that its purpose was to prevent fraud in the sale of passage tickets. The title of an act affords means of determining the legislative intent, and its help cannot be rejected as being extrinsic and extra-legislative, as it bears upon its meaning and purpose. (Sutherland on Statutory Construction, § 211; People ex rel. v.Wood, 71 N.Y. 374.)
That the sale of tickets by brokers has long been a source of fraud both upon the traveling public and the companies issuing them, is a matter of common knowledge, and of its existence there can be no doubt. Indeed, it is doubtful if the business would exist but for the profit derived from improper or fraudulent sales. The fraud of ticket brokers assumes various forms, such as changing tickets which are not transferable by the erasure of the name, the place of destination, or the date, and substituting others, and by otherwise changing the tickets, or by obliterating the dates so as to render their improper use possible. Moreover, the existence of such brokers incites the stealing of tickets, and encourages the employees of the companies in defrauding their employers by furnishing a market for stolen tickets and those not canceled by dishonest officers. That the sale of such tickets is a fraud upon both the carrier and the honest traveler, cannot be successfully denied. Again, when a passenger loses his ticket, *Page 145 instead of its being restored to him, resort may at once be had to those agencies to realize upon it. Hardly a week passes when the public prints do not contain one or more accounts of the grossest fraud upon honest but unwary travelers, which would not occur but for their existence. Therefore, the existence of ticket brokers is a continual menace to both passengers and carriers. It tends to encourage forgery, larceny, the receipt and sale of stolen and fraudulent tickets, the perpetration of frauds upon travelers, and is clearly a disadvantage to the honest traveler as well as to the carrier. Hence, the necessity for this statute is obvious, and I think the legislature was wise in adopting it.
While every person has a right to pursue in a legitimate manner any lawful calling he may select, and the state can neither compel him to adopt any particular calling nor prohibit his engaging in any legitimate business, still, it, in the exercise of its police power, is authorized to subject all occupations to such restraint as may be necessary to prevent their becoming harmful to the public, and where an occupation threatens public injury and its suppression is essential to the public welfare, the state may prevent its pursuit. (Wynehamer v. People,13 N.Y. 378, 487; Metropolitan Board v. Barrie, 34 N.Y. 657.)
The state has a right to reasonably control the manner in which public corporations shall transact their business, and to protect the public against fraud. This statute does nothing more. Its effect is to require railroad and steamboat companies to sell their own tickets in a manner that will render them responsible to the purchaser for any fraud or mistake that may be perpetrated or may occur. The property and business of these companies is clothed with a public interest which makes them of public consequence, affecting the community at large, and, hence, they may be controlled by any police regulation which is necessary to secure the public good. (People v. Budd, 117 N.Y. 1; Peopleex rel. v. B. A.R.R. Co., 70 N.Y. 569; Munn v. Illinois,94 U.S. 113.) It is, therefore, reasonable that the state may provide any preventive *Page 146 remedy necessary when the frequency of fraud or the difficulty in circumventing it is so great that no other means will prove efficacious. A regulation which is instituted for the purpose of preventing fraud or injury to the public and which tends to furnish such protection is clearly constitutional. This proposition is sustained by numerous authorities in this state and elsewhere and is an important element of the police power which is vested in the legislature.
It seems clear that the judgment in this case should be upheld upon the grounds:
1. Railroad and steamboat tickets can in no proper sense be regarded as property in which third persons have any vested interest. They are mere tokens or evidences of a right to transportation in which even the traveler who has purchased one has but a special interest and to which the companies have title and the ultimate right of possession. (Hibbard v. N.Y. E.R.R. Co., 15 N.Y. 455, 466; Quimby v. Vanderbilt, 17 N.Y. 306;Rawson v. Pa. R.R. Co., 48 N.Y. 212.)
2. The sale of railroad and steamboat tickets by persons other than the companies or their agents as a business is not an employment in which they have any unqualified right to engage. A ticket is a mere incident to the business of the companies in transporting passengers. Like a baggage check, it is merely a method adopted by them for the transaction of their own business. The ticket itself possesses none of the ordinary elements of property and cannot, without the consent of the companies, form the basis of a legitimate independent business. At most it is but an evidence of the arrangement between the companies and their passengers in which others have no lawful interest. No right to transfer is given, and, generally, none is intended. To hold that every person has a constitutional right to interfere with the relations between passengers and carriers, which is superior to the control of the legislature, would result in extending the restraints imposed upon the lawmaking power much farther than they have hitherto been supposed to exist, and would be an interference with the power vested in the legislative *Page 147 branch of the state government that is wholly unwarranted. Third persons have no constitutional right to interfere with the relations between the carrier and passenger by the purchase and sale without its consent of tickets issued by the former, and to establish such a right would be unauthorized by any existing principle of constitutional law. It is true the act recognizes the right of third persons to make sales of passage tickets, but that right is a limited one and can be properly exercised only by an agent of one of the companies furnishing the traveler with the transportation for which the ticket is purchased. But it is to be observed that as such sales are to be made by one of the companies furnishing the transportation, the company making it becomes responsible to the passengers and other carriers for any fraud perpetrated by its agent, and is in harmony with the general purpose of the act.
3. In the exercise of its police power the state was authorized to prevent the pursuit of the occupation of ticket brokers upon the ground that it was harmful to the public, and the difficulty in circumventing the fraud which attended it was so great that no other efficient means could be found.
4. As railroad and steamboat companies are public corporations, or at least their business is of such public interest as makes it of public consequence, the legislature had power to control their business by any regulation which was necessary to secure the public good. (People v. King, 110 N.Y. 418; People v.Budd, 117 N.Y. 1; People v. Ewer, 141 N.Y. 129; People exrel. v. Warden, 144 N.Y. 529; People v. Havnor, 149 N.Y. 195;Grannan v. Westchester Racing Assn., 153 N.Y. 461.) The regulation instituted by this statute was for the purpose of preventing fraud and consequent injury to the public; it tends to furnish such protection, and is clearly within the police power of the state. For these reasons I am of the opinion that the act under consideration is constitutional and should be upheld.
Moreover, if this act is unconstitutional, many other statutes which have hitherto been regarded as valid and a part *Page 148 of the existing law of the state are also unconstitutional. This may be illustrated by reference to a few of the many statutes which fall within the principle of this decision. The taking of any conveyance of lands from any person not being in the possession thereof, while they are the subject of controversy or suit, is a crime. (Penal Code, § 129.) It is a crime to buy or sell any title to lands, real or pretended, unless the grantor or his predecessors in title have been in possession for the space of a year before such sale. (§ 130.) It is a crime to solicit life insurance without a certificate of authority, to issue a policy after a certificate to do business within the state has been revoked, to act for a foreign insurance company which has not designated the superintendent of insurance as an attorney upon whom process may be served, or to act for any foreign corporation not authorized to do business in this state. (Penal Code, §§ 577c, 577i, 577j, 593.) It is also made a crime to manufacture or sell oleomargarine made in imitation of dairy butter (L. 1885, ch. 183); to exhibit a female child as a dancer or in a theatrical exhibition, or to consent thereto (Penal Code, § 292); to exclude citizens by reason of race, color, etc., from the equal enjoyment of any privilege furnished by owners of places of amusement (§ 383); to charge for elevating grain a price greater than that fixed by law (L. 1888, ch. 581); to engage in the trade or business of plumbing without registration (L. 1892, ch. 602); not to furnish water at one or more places on each floor in tenement houses in the city of New York, occupied by families (L. 1882, ch. 410, as amended by ch. 85, L. 1887); to sell milk which does not reach a prescribed standard, whether adulterated or pure (L. 1884, ch. 202); to sell vinegar which contains any artificial coloring, whether wholesome or otherwise (L. 1889, ch. 515); and for barbers to work on Sunday, except in the city of New York and the village of Saratoga Springs (L. 1895, ch. 823). If the statute under consideration invades the liberty or property of the individual, it is obvious that the statutes to which we have adverted are subject to the same criticism, and yet most, if not all, of them have been held to be constitutional *Page 149 and their enactment to be within the police power of the state, as will be seen by examining the following, which are a few of the many cases bearing upon the subject: Danziger v. Boyd (120 N.Y. 628); Dawley v. Brown (79 N.Y. 390); People v.Cipperly (101 N.Y. 634); People v. Arensberg (105 N.Y. 123) ; People v. King (110 N.Y. 418); People v. Budd (117 N.Y. 1); People v. Ewer (141 N.Y. 129); People ex rel. v.Warden (144 N.Y. 529); Health Department v. Rector (145 N.Y. 32); People v. Girard (145 N.Y. 105); People v.Havnor (149 N.Y. 195). Indeed, if the principle of this decision is to be regarded as the established law of this state, it renders invalid many, if not all, of the statutes creating offenses where the act made a crime was not such at common law. No such principle has any proper place in the jurisprudence of this state. In the language of ANDREWS, J.: "It is not a good objection to a statute prohibiting a particular act and making its commission a public offense that the prohibited act was before the statute lawful or even innocent, and without any element of moral turpitude. It is the province of the legislature to determine in the interest of the public what shall be permitted or forbidden, and the statutes contain very many instances of acts prohibited, the criminality of which consists solely in the fact that they are prohibited, and not at all in their intrinsic quality." (People v. West, 106 N.Y. 293,296.)
In considering this case, it should be remembered that a statute cannot be declared unconstitutional, unless it can be shown beyond reasonable doubt that it is in conflict with some particular provision of the organic law, nor until every reasonable mode of reconciliation with the Constitution has been resorted to, and reconciliation has been found impossible. The presumption of constitutionality attaches to every statute passed by the legislature, and the burden of establishing its unconstitutionality rests upon and must be borne by the party asserting it. (People ex rel. v. Supervisors, 147 N.Y. 1.) It is for the legislature to determine what laws and regulations are needed for the protection of the public, and if its *Page 150 measures are calculated and appropriate to accomplish that end, the exercise of its discretion is not the subject of judicial review.
Applying to this case the principles already stated, it is obvious that the statute in question was within the police power of the state. Its necessity to the public welfare was for the legislature to determine, and, as it has a clear relation to that end, its propriety is not subject to review by this court. To hold that this act is unconstitutional would establish a principle which would impair or destroy nearly every statute that has for its purpose the prevention of fraud. It would practically annihilate the police power of the legislature, and make the courts administrators of that power instead of the body in which it is vested by the Constitution. Besides, if the cases passing upon the validity of the statutes, to which we have called attention, were correctly decided, they establish a principle which, if applied in this case, requires us to hold that this act was a proper exercise of the police power by the legislature, and that it is, consequently, valid.
The result of this action is of slight importance in comparison with the principles promulgated as the law of this state. An arbitrary and unauthorized interference by the judiciary with the administrative affairs of the state is fraught with quite as much danger as would follow legislative interference with judicial affairs. Neither can occur without affecting the stability and efficiency of our state government. The legislative power of the state is vested in the senate and assembly. When courts seek to control the action of the legislature or, in effect, to repeal its statutes by holding them in conflict with some non-existent or doubtful constitutional limitation, their action ceases to be judicial and becomes mere usurpation.
I think the order should be affirmed.
PARKER, Ch. J., reads for reversal of order and discharge of prisoner; O'BRIEN, HAIGHT and VANN, JJ., concur. BARTLETT and MARTIN, JJ., read for affirmance, and GRAY, J., concurs.
Order reversed, and prisoner ordered discharged. *Page 151