is made of regulating them. These sections do not apply in letter or spirit to transportation companies, but cover and apply to all citizens of the state in general, no matter whether they are engaged in the transportation business or any other business. It lays the heavy hand of law not only on ticket brokers, who are unconnected with transportation companies, but upon any and every citizen who having honestly come by a ticket entitling its holder to travel, honestly attempts to dispose of the same.

It would undoubtedly be an exercise of the right to control quasi-public corporations for a legislature to impose lawful conditions upon the original sale of a ticket by a transportation company to a purchaser, but once a ticket has issued entitling a "holder" to ride and therefore transferable by delivery, any legislation in reference to the future disposal thereof is not an exercise of the power to regulate and control corporations impressed with a public duty, but a bold and unwarranted interference with the property rights of citi

zens.

The legislature has the undoubted right to control and regulate horse car companies. Yet if the legislature under the pretended exercise of this right should declare it to be a criminal offense for a horse dealer or other citizen to sell a horse which had been honestly acquired by purchase from the company, would counsel contend that such a law was constitutional? That he would not is shown by his own argument. On pages 49 and 50 of his brief in sustaining his position that the act is not in contravention of the Interstate Commerce Act, he declares: "A ticket offered for sale to or by a ticket broker is, when so offered, wholly separate and distinct from the function it performs in the hands of a traveler on a train and depending upon it as evidence of his right to transportation. It is, when so offered for sale, merged in the common mass of the vendible chattels in the state (if we consider it such a chattel) to the same extent as is any other article sold or offered to be sold by or to an inhabitant of the state. When so offered, even if we consider it a chattel, it is like, for instance, a piece of cloth bought from a merchant in

a foreign nation by Marshall Field or from an inhabitant of Illinois by Marshall Field, and by Marshall Field exposed for sale."

The court cannot state its view of the condition of a ticket "entitling holder to ride" after it has once been purchased from a transportation company and the holder thereof, in clearer language than has Mr. Forrest in the foregoing quotation. Sections 2 and 3 of this act under which relators are indicted do not regulate or control in any way transportation companies, and they cannot be sustained under the claim that they were enacted for the purpose of regulating corporations impressed with a public duty. They do, however, affect to control the whole body of the citizens of the state in imposing restrictions and limitations upon their right to buy and sell property. This the law-making power can only do in the legitimate exercise of the police power, and, as this court has theretofore declared, the law in question does not fall within the limits of the police power.

In arriving at this conclusion, the court has not failed to examine and give full consideration to the cases cited by the counsel for the state, which declare similar laws valid and constitutional. The case of Burdick v. People, 149 Ill. 600, might in the absence of the extraordinary record disclosed in the majority and dissenting opinions in In re Burdick, 162 Ill. 48, be conclusive in favor of the state's position. But in view of the fact that the majority opinion in the latter case declares (p. 50) that, "Along with the petition, numerous affidavits were filed which tended to prove the truth of the statements made in said petition, that the petition upon its face discloses that the case of Burdick v. People, reported in 149 Ill. 600, was outrageously fraudulent and collusive, that the majority of the court did not find it necessary

*

to weigh the testimony for the purpose of determining whether or not the prosecutions against George Burdick were fictitious and collusive," (p. 51)., that the minority of the court did consider and weigh the evidence, and were of the opinion that the cases were fraudulent and collusive,

and that the majority opinion contains the singular and unusual declaration that the "opinion of the court in the Burdick cases are conclusive only as between the parties in those cases, and are no estoppel as between the people of the state of Illinois and the petitioners" (p. 58 of majority opinion); this court does not consider itself bound by the reasonings and conclusions in the opinion rendered in Burdick v. People. The opinion cited in Commonwealth v. Wilson, 14 Phila. 384, was rendered by a single judge-Ludlow-sitting in the court of quarter sessions. He holds that an enactment similar to the Illinois statute was within the police powers, but cites no authorities in support of his holding, the only authorities cited being in support of the position that a state may exercise its police powers notwithstanding that provision of the federal constitution giving to congress the right to regulate commerce between the states.

In Fry v. State, 63 Ind. 555, the supreme court of Indiana declared an act in some respects similar to the Illinois act a legitimate exercise of the police power and a valid law, although the title of the law, to-wit, "An act regulating the issuing and taking up of tickets and coupons of tickets by common carriers, and defining the rights of holders thereof, and other matters in relation thereto," and the provisions of the act regulating the same show that it was passed under the power of the state giving it the right to regulate quasi-public corporations impressed with public duties, rather than in the strict exercise of the police power. The Indiana act contains several regulations imposing restrictions upon transportation companies and favorable to the public, such as requiring restrictions upon the rights of ticket holders to be printed in nonpareil type and the redemption of tickets at each agency, and in these respects much more nearly approaches the legitimate exercise of the power to regulate municipal corporations than the Illinois law, and these considerations doubtless had their effect upon the court in passing upon the law in its entirety.

In State v. Corbett, 59 Minn. 345, the supreme court of

Minnesota, two of the five justices being absent, have also upheld a similar law as a valid exercise of the police power upon the authority of the Fry and Burdick cases, although the title of the act, to wit: "An act to regulate the sale and redemption of transportation tickets of common carriers and to provide punishment for the violation of the same," shows it was the intention of the legislature to regulate common carriers rather than to enforce police power in its strict sense.

The appellate division of the supreme court of New York has also recently, in the case of People, ex rel. Tyroler v. Warden, 26 App. Div. 228, 50 N. Y. S. 56,1 following and relying on the Burdick, Corbett and Wilson cases, held a similar law in that state a legitimate exercise of the police power, and although the court has carefully considered the arguments and reasoning contained in the opinions rendered in those cases, it cannot arrive at the conclusion reached by those courts, that the sale of a ticket entitling the holder thereof to ride, by one citizen to another, tends in any way to injure the health, morals or general welfare of the community, and that legislation making such sales a criminal offense is an honest and legitimate exercise of the police power of the state. Until the supreme court of this state, upon a case presented to it by parties who are in fact, adversely interested in the outcome, shall declare such law within the police power of the state, this court holds to the view that this law, or any law which declares it a crime for one citizen to sell to another that which is not injurious to the public health, morals or general welfare, is not only a dangerous and unjustifiable interference with the citizen's personal right and liberty, but a violation of the constitution of this state. Nor in holding these views does this court stand alone. In Austin v. Murray, 16 Pick. 121, 126, it is said: "The law will not allow the rights of property to be invaded under the guise of a police regulation for the promotion of health, when it is manifest that such is not the object and purpose of the regulation." And Justice Field, in the celebrated Slaughter House Cases, 16 Wal

Burdick v. People, 149 Ill. 600, distinguished.

lace, 36, says: "Under the pretense of prescribing a police regulation, the state cannot be permitted to encroach upon any of the just rights of the citizen which the constitution intended to secure against abridgment." And Judge Colt, in Watertown v. Mayo, 109 Mass. 315, 319, declares: "The law will not allow rights of property to be invaded under the guise of a police regulation for the preservation of health or protection against a threatened nuisance, and when it appears that such is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citi

zen.

* * *

In the language of the New York Court of Appeals, in Re Jacobs, 98 N. Y. 98, 115, which was also a habeas corpus case which called in question the constitutionality of a police law: "When a health law is challenged in the courts as unconstitutional, on the ground that it arbitrarily interferes with personal liberty and private property without due process of law the courts must be able to see that it has at least in fact some relation to the public health. This we have not been able to see in this law, and we must, therefore, pronounce it unconstitutional and void. In reaching this conclusion we have not been unmindful that the power which courts possess to condemn legislative acts which are in conflict with the supreme law should be exercised with great caution, and even with reluctance. But, as said by Chancellor Kent (1 Com. 450): 'It is only by the free exercise of this power that courts of justice are enabled to repel assaults and to protect every part of the government and every member of the community from undue and destructive innovations upon their charter rights.'

(The court remanded the relators, pursuant to the rule laid down by the state supreme court in People v. Jonas, 173 Ill. 316, that the constitutionality of a statute could not be considered in a habeas corpus proceeding.)

NOTE.

The above case is referred to in a note upon anti-ticket scalping laws in 4 L. R. A. (n. s.) 480, collecting the cases in the lower Illi