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December 10, 1919 THE. NEW YORK CLIPPER: 25 In a letter-written March 17. 1911 (Com. Ex. 11) from the' office of the Pat Casey Agency, the., stock of which la .held by Pat-Casey.:-manager of the V.- M. P.-'A., the "statement-is made and offering the .same-'Salaries that they paid-them.'prior to their gomg on the Morris Circuit -CAd-' vanced Vaudeville). From the testimony of the witness Fits-, patrlck (R. 1916) It appears-that Alex- ander Pantages, a dlrector of the V. M. P. A., admitted that there was a blacklist. At first be characterized it as a list of undesirables, but stated "What's the use arguing about it. Yes. of course, we all understand—what - it Is—a black list." The witness 'Casey, manager of- the v. M. P. A. testified (R. 43-45) that a list' of vaudeville acts like Commission's Ex- hibit 5 was prepared .in his. office at his instance for the purpose of advising dlf-' ferent booking offices as to the character of the-people on the list. The acts whose names were on this list were character- ized by the witness as Irresponsible and could not be depended upon. — The witness Quigley testified (R. 1302) that-In February, 1917. Mr. Casey, the manager of the V. M. P. A., inquired of him in Boston whether he was booking any acts who' were "White Rata" The witness replied that he did because he did not know who were and who were not "White Rats." Mr. Casey" mentioned a' black Ust and offered- to furnish a copy of it, which he sent In the mails with a letter which witness Identified, and the same was Introduced In evidence as Com- mission's Exhibits "P" and "Q." The witness Bulger testified (R. 1514) that In February, 1917, Pat' Casey, man- ager of the V. M. P. A., stated to him that he was on the black list for having been a member of the "White I Rats." making speeches- in Boston and paying stride levies to the "White Rats. and that since that time he had-been able to secure contracts for appearances In vaudeville theatres for only 3ft weeks!' Helen Kelson, In her deposition taken March 14, 1919. testified that in Septem- ber, 1919, while the team, Keough & Nel- son, of-which--she-was a member, was playing in a vaudeville theatre at Elmlra, New York, having been booked by an agent operating through the U. B. O., they were notified that the engagement for the following week at White Plains. New York, was cancelled. The team, however, went to White Plains and re- ported at the theatre and were Informed by both of the stage manager and the manager of the theatre that the act was black listed and could not play the en- gagement. The -United -Hooding Offices were gotten on the telephone and that office refused to permit the engagement to be played, stating the net was black- listed; that In November, 1916, the team had contracts to play four weeks In theatres in the Poll Circuit. After the first week was played they were Informed that they were blacklisted and could not play the balance of the engagements, and for them to take the matter up with Pat Casey, manager of the V. M. P. Al ~They called on Mr. Casey, who Informed them that they were black-listed, and that the managers' would take advantage of the cancellation clause In the contract. When asked If there was anything they could do to enable them to play the engage- ment, Mr. Casey stated that they should resign from the "White Rata" " Mr. Keough stated he was a life member. Mr. Casey requested him to call the next day. Upon their return they were unable to see Mr. Casey but saw a Mr. Bradley, who stated he was an attorney for the v. M. P. A. ' He also requested Keough to resign from the "White Rats," which Keough agreed to do and Bradley pre- pared a form of resignation which Keough signed. The Act then played one wee* In Hartford and New Haven, and at the end of the week received a letter from Mr. Casey cancelling the balance of the en- gagements. They then returned to New York and attempted to see Mr. Casey but were unable to- see him and talked with bis Assistant Mr. Lee, who Informed them that the reason they could not play the balance of the time was that they were no the black-list. The team, Keough & Nelson, then ap- plied for- engagement at the booking of- fices of the Fox Circuit, the theatres of which are members of the V. M. P. a;, and t. ere Informed by Mr. Allen, who was ■n chiurge of the office, that they were blacklisted and that he could do nothing for them. They then applied for work at the booking offices of the Pantages Cir- cuit, the theatres of which are also mem- bers of the V. M. Pi A., and were In- formed by Walter Keefe. who was In charge of the office that "There Is not a chance: you ar e on the blacklist, and besides you are a 'White Rat' " Keough stated he had resigned from the "White Rats." Mr. Keefe stated that there was a meeting of a committee of the V. M. P. A. consisting of Messrs. Albee. Murdock. Moss. Schenck. Casey and himself at which It was decided that Keough should be kept on the list and not given engage- ments. In January or February. 1919. they applied for work at the office of Harry Splngold. who books attractions through the Western Vaudeville Associa- tion, affiliated with the V. M. P. A.,-and was informed by. Mr. Splngold" that he '-"could do nothing for-them as they were blacklisted and had apjdWd at the offices at Decatur,- Illinois, and Milwaukee. Wis. They then applied at the offices of an- other agent at Chicago. Frank Doyle, who Informed them he could 'not- play them If they played for Jl.50 a wee*. Tor they were on the black-list. From Commission's Exhibits No. 84, 85, 86, 88 and 9,' which are letters, bearing dates between February, 1917 and April, 1918. from unlicensed representatives of performers i who represent' performers in booking offices employed by theatres which are members of the V. M. P. A., a very clear Idea of the effect of the managerial black-list of actors can be had and the~ difficulties of getting off such black list There are 'numerous other exhibits which relate to the black-list of actors prepared by the V. M. P. A., and its affi- liations, and there are numerous other re- ferences to It In the testimony of wit- nesses, but the . exhibits and testimony herein referred to are perhaps fairly re- presentative of' the whole and sufficient to give the Commission a clear Idea of the blacklist and how It worked, and a further description of the exhibits and evidence would be merely cumulative. •PART VnC—INDEPENDENT VAUDE- VILLE THEATRES. In addition lo the theatres which are actual members of the V. M. P. A., nearly every circuit or theatre owner constitu- ting the membership of the V. M. P. A. ■ owns or corporates other theatres .than those designated as members of the V. M. P. A., but such non-member theatres are booked in connection with the mem- ber-theatres and are under the same gen- eral management as the member-theatres, and are therefore as much a part Of the Illegal combination, described In the com- plaint, as If they were actual paying members In the V. M. p. a. In Commission's Exhibit 7. as noted be- fore, the Vaudeville Managers Protective Association,. stated that that association comprised the owners and managers of every important vaudeville house in the United States. The advertisement might also have stated truthfully that that asso- ciation also Included practically every un- important vaudeville house In the United States, The only • semblance of. a circuit of theatres outside the combination is that operated by the Arcadia Amusement Company, which applied for permission to intervene herein. This circuit includes Fay's theatre at Providence, R. I.. Fay's theatre at Rochester, New York, and the Knickerbocker Theatre In Philadelphia, Fa, The difficulties encountered in se- curing performers - to - appear In these theatres prior to the Issuance of the com- plaint herein, are described In the testi- mony of the witness Fay (R. 643-688, 702- 746) and the testimony of the witness Sheedy (R. 2362-2404). These difficulties consisted generatty of the cancellation-of contracts by performers who were booked to appear in Fay's theatre when It be- came known to them that the house was on the managerial black-list. A great many acts agreed to appear only on con- dition that they be, given assumed names on the billing, which took away from the acts whatever drawing power it had. and this made It extremely difficult to secure any but Inferior acts. When an act of established reputation would consent to appear in Fay's theatre they demanded larger salaries than were paid In other theatres, and that this continued up until about the time the complaint was Issued, but since the complaint was Issued the difficulties have been less. The difficulties are further described In news stories appearing In "Variety," Is- sues of November 9, 1917 and October 19. 1917 (Com. Ex. Nos. 51-&2) to the effect that the managerial blacc-Ilst was ma- terially added to the previous week; some for appearing In "outlaw" theatres under assumed names; that to do so convicted them immediately and they were then black-listed under their right names: that Fay's theatre was in bad; that he had booked the Cora Youngblood Corson Sex- tette as "Florence Livingston and her Oklahoma Prodigies"; that the managerial black-list still exists against the Corson Sextette; that when the black-list was generally removed" some weeks ago. the name of the Corson Act was allowed to remain on the list Indefinitely: and that the playing by Fay of the Corson Sextette likely eliminated that house from any further consideration for membership In the V. M. P. A. The witness Fay testified (R. 658-660) concerning his application to the V. M. P. A. for admission as a member of his conference with Mr. Casey, the manager of the Association, stating that Mr. Casey Informed him that If he would change hut booking arrangements he could be- come a member; that Mr. Casey sug- gested that he book through the Gus Sun Agency of Springfield. Ohio, an agency ooernted by a director of the V. If. P. A.: that he continued to book through the Sheedy Agency and his application for membership in the V. M. P. A. has never been accepted. "" ' THE LAW OF THE CASE. Section 5 of the Federal Trade Com- mission Act declares that unfair methods of competition In commerce are. unlawful. The Commission Is authorized and di- rected to prevent persons, partnerships, and corporations from using unfair me- thods of competition by Issuing com- plaints whenever. It has reason to believe that persons, partnerships, and corpora- tions have been, or are, using unfair me- thods of competition. In the complaint Issued by it. the- Commission is. required to state its charge and if upon hearing provided for the Commission shall be of the opinion that the method of competi- tion in question Is prohibited by the act. It makes a report, stating its findings as to the facts, and Issues an order requiting the respondents to cease and desist from the use of'such methods "of competlon. The power and authority of the Com- mission i with reference to the prevention of unfair methods of competition Is dis- cussed in the opinion of the court ic the cose of Sears. Roebuck & Company vs. Federal Trade Commission, C C. A., Seventh Circuit, not yet officially re- ported. HELD: ' "On the face of this statute the legis- lative Intent Is apparent. The Com- missioners are not required to aver and prove that any competitor had been damaged or that any purchaser■ has been deceived. The Commissioners, re- presenting 'the Government as parens patriae, are to exercise their common sense, as Informed by their knowledge of the general Idea of unfair trade at common law, and stop all those trade practices which have a capacity or a tendency to injure competitors, directly or through deception of purchasers, quite Irrespective of whether the speci- fic practices In question have yet been denounced In common law cases. XXX "But such a construction of Section.-6; according to petitioner's urge, brings about an unconstitutional delegation of legislative and Judicial power to the Commission. Grants of similar - author- ity to administrative officers and bodies have not been found repugnant to the Constitution (citing cases). "With the increasing complexity of human activities, situations arise where Governmental control can be exercised only by the 'board' or 'commission' form of legislation. In such an Instance Con- gress declares the public policy, fixes the general principles that are to con- trol, and I charges an administrative body with the duty of ascertaining within particular fields, from time to time, the facts which bring Into play principles established by Congress. Though the action of the Commission In finding the facts and declaring them to be specific offenses of the character embraced within the general definition - by Congress, may be. deemed. to be quasi-Judicial. It is so only In the sense that It converts the actual legislation - from a static Into a'dynamic condition. But the converter Is not the electricity. And though the action of the Com- mission in ordering deslstance may be counted quasi-Judicial on account of Its form,' with respect to power It la not Judicial, because a Judicial determina- tion Is only that which Is embodied In a Judgement or decree of a court and en- forceable by execution or other writ of the court." Congress baa not undertaken to define the term "unfair methods of competition," nor has It complied a schedule or methods that shall -be deemed unfair. Counsel for Warren, Jones & Grata, In their petition to review the order of the Commission, recently decided by the TJ. S. C. C. A., Second Circuit, contended that unfair methods of competition must be limited to acts which violate the Anti- Trust Acts, but the court In that cose held he unfair methods of competition within the meaning of the provisions of Section E of the Commission Act. were not restricted to such as violated the Anti-Trust Acts; that the act particularly applied to acts which. If not prevented, will grow so large as to create Illegal competition and create a monopoly In vio- lation of the Anti-Trust Acts. Do the facts proven disclose a combina- tion or conspiracy to restrain or mono- polize any part of Interstate commerce? In the cose of H. B. MarienelU. Ltd. vs. Booking Offices, et si., 287 Fed. 165, the following contention was established: (1) Contracts made by theatrical companies, under which performers must go from State to State, through- out a' circuit of theatres, acting here and there, and fulfilling their contracts as much by the travel as by the acting., are contracts of Interstate commerce. (2) The business of theatre owners, and bokring offices, which Involves the booking of performers, requiring such performers to pass from theatre to theatre, and from State to State, +«v<»»g with them certain paraphernalia and stage properties, constitut Interstate commerce, as does the transportation of photographs and advertising matter used In billing such performers. (3) A combination of owners of theatres scattered over the United Sates and .their:- bQoklng."5oMh>es. to black-list performers and theatres, which results in a monopoly,- m \vltbin the prohibition of the-Sherman Act. ' (4) "A ooujblnatlon between »► number of vaudeville theatres and their booking agents, the purpose' ot->whloh J»- to keep all first-class performers for such theatres, refusing to allow them, to act If they act In other theatres, and re- fusing to allow other theatres to em- ploy their performers If they employ! other performers. Is In restraint of com- merce, where outside or the" circuits of theatres In the" combination first-class performers can not obtain sufficient employment in the United States and Canada to enable them to maxe a liv- ing, as the necessary inference is that If successful, the parties to the combi- nation will control all first-class per- formers and monopolise the supply, and thus control the business. (5) Whether the Acts In pursuance of the combination, are themselves a part of interstate commerce. Is Imma- terial, for the Illegality arises from the project or plan as n whole, and the per- formance Innocent without It, takes Its color from Its setting. The rules regu- lating original conspiracies obtain In such cases- Counsel for oil respondents except Silverman, contend In the motion to dis- miss (R. 28-85) that none of the said re- spondents are engaged In commerce, and tor that reason, among others stated, the complaint should be dismissed..This same, contention'was made und over-ruled • tn the case of Loewe vs. Lawler. 208 U. 8. 274. The opinion of the court on this point Is reflected in the syllabus, which reads as follows: "A combination may be In restraint of Interstate commerce and within the meaning of the Anti-Trust Ac*, al- though the persons exercising the -re- straint, may not themselves be en- gaged in Interstate trade, and some of the mcuna.emyloypd may be acts within u State, and Individually beyond the scope of Federal authority, and operate to destroy Intrastate trade as Interstate trade; but the acs mus be considered as a whole, and if he practices are to prevent interstate transportation, the plan is open to condemnation under the Antl-Trua Act of July. 2. 1890. 8wlft v. U. 8, 876." If It should be held that none of the re- spondents was engaged In commerce, that fact would not deprive the Commission of Jurisdiction, but it Is contended that the business of the respondent, B. F. Keith Vaudeville Exchange, constitutes Inter- state commerce, and that the business or the untst composing the Vaudeville Managers Protective Association, some of which ore mude respondents. Is also In- terstate commerce, and that the corpo- rate entity. Vaudeville Managers Protec- tive Association, while not Itself engaged In commerce, Its corporate machinery IS utilized by the several units composing it, ■ In the carrying out of acts of Inter- state commerce, In which the several units are engaged, and that said V. M. P. A. Is a co-conspirator or agent of the other respondents, who are engaged In commerce. Counsel for respondents further contend in their motion to dismiss that a combi- nation 'In restraint of commerce, or a monopoly of the vaudeville theatre busi- ness of the United States Is not an unfair method of competition within the mean- ing of Section 6 of the Commission's Act. It Is submitted that a statement of the conentlon carries with It Its own refu- tation, for a practice which violates any law. Federal or State, must carry with It the stamp of unfairness and illegality. It may be that when a monopolistic con- dition bos been reached that in some cases a more complete destruction of the monopoly could be accomplished by a pro- secution under the criminal provisions of the Sherman Act, or by a suit to enjoin or dissolve the combination. In this pro- ceeding the necessary relief may be ob- • talned. and . most likely would be- ob- tained, by a simple order against respon- dents, requiring them to cease and desist from the use of a black-list of actors and theatres, for when those who perform tn vaudeville theatres can be assured that no such thing as a managerial black-list can be maintained, and that they can not be coerced into Joining an actor's associ- ation dominated by the manag ers of theatres, then the "house of cards" which the units composing the V. M. P. A- have erected, will fall of Its own weight- No doubt much good could be ac- complished by an act of Congress regu- lating theatrical employment agencies and providing that those who represent per- formers In theatres, upon a stated per- centage of salaries earned, must be li- censed by some federal agency; and ob- viously the system of charging performers a . fee for obtaining employment In theatres operated by the same interests as those, who operate the employment (Continued on .Page 30)