Appellant was convicted of selling a railroad ticket, not being the agent of any railroad company and authorized thereto, under the Act of the Twenty-third Legislature, page 97, and his punishment assessed at a fine of $5, and appeals.
The indictment sets out by exhibit the ticket alleged to have been sold, which is as follows:
"Issued by Galveston, Harrisburg San Antonio Ry. Co. Excursion Ticket 5-4, good for one first-class passage San Antonio to Houston (Depot). This ticket is not good for stop-over privileges, and will not be honored for any part of the trip after midnight of May 7, 1894.
"Notice. — It is a penal offense for the purchaser or holder of this ticket to sell, barter, or transfer the same for a consideration, and this ticket or any unused part thereof is redeemable by the company at any ticket office of the company when presented for redemption within ten days after the right to use the same has expired by limitation of time as stipulated herein.
"One way rate, $6.30. "Round Trip Rate, $ — .
"Form S.B. "L.J. PARKS, Ass't G.P. T.A."
It is alleged substantially that appellant without lawful authority sold said railroad ticket to one E.A. Metcalfe, he, the said Jannin, not being the agent of the said Galveston, Harrisburg San Antonio Railway Company for the purpose of selling tickets, and having no certificate of authority to make the sale of the same, etc. No objection was urged to the indictment, but it is insisted that the law of the Twenty-third Legislature making it a penal offense for any other person than the agent of a railroad company to sell passage tickets is *Page 640 unconstitutional, (1) because the law prohibiting the selling of tickets by persons not having a certificate of authority to sell is not a police regulation adopted by the Legislature in the legitimate exercise of the police power; (2) the law is invalid in this, it delegates to railway companies the power to make the sale of tickets lawful or unlawful; (3) railroad transportation ticket is property.
In this connection appellant contends that said act is violative of section 19 of the Bill of Rights, as follows: "No citizen of this State shall be deprived of life, liberty, property, immunities, * * * except by the due course of the law of the land." "Sec. 26. Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed." These questions have all been so thoroughly discussed under similar laws of other States that it would appear to be a work of supererogation to reiterate what other courts have said on this subject; and in the face of a number of able decisions of other States, we would not undertake to add anything new to the discussion of the questions here involved. See Commonwealth v. Wilson, 14 Phila., 384; Fry v. State, 63 Ind. 560; Burdick v. People, 149 Ill. 600; State v. Corbett, 57 Minn. 345; State v. Bernheim, 49 Pac. Rep., (Mont.), 441; People ex rel. Tyroller v. Warden State Prison, App. Div. Sup.Ct. New York, 26 Hun, 228, and the same case reported in Court of Appeals of New York, 51 N.E. Rep., 1006. By reference to the above cases it will be seen that this constitutional question with reference to scalpers' tickets in one shape or another has been before the courts of the several States mentioned, and the holding was in favor of the constitutionality of the law in all of said States except New York. In Tyroller's case, from that State, it was held on a proceeding in habeas corpus to the appellate division of the Supreme Court, by a unanimous court, that the scalpers' law of that State was constitutional, in that it did not deprive a citizen of his property without due course of the law of the land, nor did it confer an exclusive privilege upon any class of persons so as to be a monopoly; and it was within the police power of the State Legislature to pass such a law. It was moreover held that it was not violative of any provision of the Constitution or laws of the United States with reference to interstate commerce. This case was taken to the Court of Appeals of said State, and there, by a divided court of four to three, the law was held to be unconstitutional. In that case the learned chief justice appears to consider that the passage ticket of a railway company is property, and any law which attempts to restrain or inhibit the disposition and sale of same is pro tanto a violation of the Constitution, which provides that no person shall be deprived of life, liberty, or property without due process of law. Again, that opinion holds that the attempt of the Legislature to confine the sale of railroad passage tickets to the agents named in the act was the creation of a monopoly, and that the legislation in question inhibited by said provisions of the Constitution of New York did not come within the police power of the Legislature. A number of cases are cited in favor of the opinion. It will be observed, however, *Page 641 that there is a marked distinction between the New York law and our statute on this subject, in that the New York statute, by the construction placed on it by Judge Parker, authorized not only the agents of the particular corporation to make sales of such tickets, but the agents of all other transportation companies; and in the opinion the learned judge lays stress on this construction of the statute, as class legislation and creating a monopoly. As stated before, the opinion of the New York Court of Appeals on this subject runs counter to all of the authorities that have come under our observation. That court itself was divided on the subject, and in our opinion the very able discussion by Judge Parker is more than answered by the dissenting opinions of Justices Bartlett and Martin. These treat a passage ticket on a railroad company not as property in its general sense, but as a token of the purchaser's right to be transported on the railroad between the points named in the ticket. We quote as follows: "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 he, to that extent, acquires a special property in it. When the journey is ended, or about to end, it is to be delivered 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; still the passenger is entitled to retain it in his possession until the completion of his journey." And again: "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 event the traveler, who has purchased one, has but a special interest, and to which the companies have title, and the ultimate right of possession." They hold, in accordance with the views of other courts, that the act of the Legislature restricting the right of sale to the agents prescribed in the act was within the police power of the State, and not violative of any provision of the Constitution; that 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 was so great that no other efficient means could be found.
We hold, in accordance with what we conceive to be the current of authority, and the sounder view on this subject, that the Legislature was authorized, as was done in this act, to confine the sale of passage tickets on railroad companies to the agents of such companies, and to make it penal for any other person to make a sale of same. The ticket of a railroad company is not property in the general acceptation of the *Page 642 term, but the purchaser has only a special property in the ticket as evidencing his right to passage on the road; that common carriers within this State are peculiarly subject to regulation; and to preserve and protect both the passenger and the company itself against fraud, is within the province of the police power of the State, and not violative of any provisions of the Constitution. Nor can it be said that such regulation is any wise the creation of a monopoly. Unlike the New York statute, our act confines the sale of passage tickets to the agents of the railroad company itself, and does not authorize the agents of other companies to make the sale of the same (unless such agents be also the agents of the company in question). This is simply authorizing the railroad company to conduct its own business. And again, it can not be urged that the act in question deprives the citizen of his property without due course of law. It does not seek to confiscate his property. It says to the citizen, if he desires to be transported on any railroad, he can go to one of the agents and buy a ticket for that purpose, and pursue his journey. If from any cause he should fail to pursue his journey in whole or in part, it authorizes him to call on an agent of the company and have his money refunded. It occurs to us as absurd to say that a regulation of this character can not be adopted, both on behalf of the railroad companies and of the general public, under the police power of the State, without violating some sacred provision of the Constitution.
However, appellant raises what we consider a more serious question. He contends that the act leaves it optional with railroad companies as to whether or not they will make the sale of passage tickets a penal offense, inasmuch as it is left optional with each railroad company in the sale of tickets whether or not they will indorse on same the following provisions of the act: "Provided, that the provisions of this act shall not apply to any person holding a ticket upon which is not plainly printed that it is a penal offense for him or her to sell, barter, or transfer said ticket for a consideration." In reply to this it is urged that the act makes it the duty of each railroad company to print said proviso conspicuously across the face of every ticket sold by its duly authorized agent. While it is true the act in this section requires this, yet is it a sufficient answer to the proposition that it is still optional with the railroad company to make the sale of passage tickets a penal offense? It will be observed that no penalty is attached to the failure of the railroad company to print across the face of its ticket said proviso. It is merely made a duty, which they may comply with or not as they see fit. It would have been a very easy matter for the Legislature to have confined the sale of all passage tickets to the agents of the railroad companies, without any requirements as to the form of the ticket. But this course was not pursued. As it is, every railroad company has the option to issue a passage ticket with this proviso or not as it may see proper. If it issues a ticket without this proviso, it is not a penal offense; and in every such case scalpers and all others may deal in such passage tickets without any violation of the law. We accordingly hold *Page 643 that because the Legislature left it optional with the railroad companies whether or not in the issuance of tickets they would create a penal offense, that the act of the Legislature is without authority of law; is violative of the law in that it does not define with certainty an offense; does not itself create an offense, but delegates its authority to another agency to make the sale of railroad tickets a violation of the law. In this respect it would appear to be violative of section 28 of our Bill of Rights, which says, "No power of suspending laws in this State shall be exercised, except by the Legislature." See Suth. Stat. Con., sec. 69. We therefore hold that the sale of railroad passage ticket in this case is not a violation of law.
The judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.
BROOKS, Judge, dissents from the conclusion reached by the majority of the court.
ON MOTION FOR REHEARING.