The New York Clipper (January 1920)

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THE NEW YORK CLIPPER January 7, 1920 COURT DECLARES TICKET BRO KERAGE L AW INVALID Fight Made By Leo Newman and Louis Cohen Against Kflroe- WUfiams Ordinance, Brings Decision That Prices Can't Be Fixed. Judge Rosalsky Suggests Remedy Judge Rosalsky early this week, in the ■Court of General Sessions, held the B31- roe-Wflliams ordinance, enacted by the Board of Aldermen last Spring, to be un- constitutional- In hla decision, 'which covers fifty -seven typewritten pages, Judge Rosalsky not only declares the section limiting the price which brokers may charge for tickets illegal, but alio holds that that portion of the law which com- pels brokers to procure licenses at $250 a year, ia invalid. The decision came as the result of an appeal taken by Louis Marshall on behalf of Leo Newman and Louis Cohen, both of whom were convicted in the Magistrate's Court, about six months ago, of violating the ordinance, in that they refused to take out licenses. Sentence was sus- pended in the court below, but their con- viction has now been set aside by Judge Bosalaky. In his decision, Judge B osa l a ky holds, among other tilings, that, "the defendants refused to procure licenses because they claim that the price-fixing provision of the ordinance interfered with their right to carry on a lawful business; that a license would be of no benefit or advant- age to them because it could be revoked for selling tickets in violation of this pro- vision; that such violation is made the only ground of revocation and no appeal can be taken by the licensee; that when a license is once revoked the licensee is not thereafter entitled to a renewal; and that all of these unreasonable and arbitrary restrictions constitute a deprivation of their constitutional rights to earn their livelihood and to bold and enjoy their property. "The price-fixing provision of the en- actment is now challenged by the de- fendants as void under the 14th amend- ment to the Federal Constitution, and under Section 6, Article I of our State Con stitut ion, which guarantees all per- son! against' deprivation of their liberty a nd p roperty without due process of law. "The price-fixing ordinance is not with- out precedent, but wherever an attempt has been made by legislation to fix the price of theatre tickets, such legislation has been declared to be repugnant to the constitution, either upon the ground that the legislation could not be sustained within the exercise of the police power of the state in the interest of the public welfare, or because the business of con- ducting a theatre, even if clothed with public interest, was not within the pur- view of the doctrine laid down." Hsrs the judge enumerates a number of eases in point, not the least of which waa the decision of Judge Dunn in the Supreme Court of Illinois, where the same sort of law was held to be invalid. In OUTliislrm. Judge Bosalaky holds, in part, as follows: * T« order that there should be no mis- understanding as to the questions passed upon, I deem it necessary to recapitulate the points decided, and this opinion is, th erefore, limited to the following: "I. That the price-fixing and licensing provisions in relation to ticket brokers contained in Section 11a of the ordinance an held invalid; "£. That the license fee for the year 1919 is excessive and more than reason- ably necessary to reimburse the city for the regulation and supervision of the bus- iness of a ticket broker; "*. That the Board of Aldermen waa without power to enact a provision pro- hibiting a licensed ticket broker from ap- pealing from a decision revoking his license; and, "4. That error was committed by the Magistrate in excluding evidence offered by the defendants for the purpose of showing the unreasonableness of Section JJa of the ordinance. "In deciding the question involved in these cases, it must be understood that tiie provisions of Section 3, 3a and 12, of Article I, of Chapter 3, of the Code of Ordinances were not considered, as these sections in no • way affect the decision herein rendered; and no opinion is ex- pressed thereon, for the further reason that the defendants, not being injured by these sections, cannot raise any objections as to. their validity on behalf of persons who might be affected thereby. Therefore, these sections must stand. For the same reason, the provision contained in Section 11a, which reads: This section shall not be deemed to require a license under sec- tions one and two.of this article to obtain an additional license for the sale by him of tickets of admission to a licensed exhibition or performance con- ducted by him'; must likewise stand, be- cause this provision relates to a person exhibiting entertainments of the stage to the public. T am not nnappreciative of the fact that this ordinance was passed in answer to a wide-spread public demand to pre- vent ticket broken from charging extor- tionate prices for admission to theatres where popular entertainments are pro- duced, the result being that persons of ordinary means find it almost impossible to purchase tickets for such plays or are required to wait weeks, if not months, be- fore the privilege is accorded to them to witness such performance at a reasonable price. "Both the theatre and the ticket specu- lator thrive, because the public is willing to pay any excessive price that may be asked. "There is no donbt that the evil flowing from this business should • be corrected, but the relief, unfortunately, for the reasons already pointed out, cannot come through the courts, for the courts an merely the interproten of the law. In California and Illinois, the people have sought to remedy a similar situation, but the legislation was declared to be uncon- stitutional. The remedy, in ixxj judgment, can come from the producing managers of the the- atres. This can be accomplished through the medium of a contract entered into between the managers of the theatres and ticket broken to sell tickets at reason- able prices. This arrangement can be made effective if the parties will act in good faith. Fixing reasonable prices for theatre tickets will not violate the law of monopoly, becadse entertainments of the stage do not come within the inhibition of the anti-monopoly law. In fact, the entire subject is within the absolute con- trol of the producing managers of the theatres, as was pointed out in Collister vs. Ha tom. "Although this legislation is attractive and desirable, and meets, as it undoubt- edly does, with popular approbation, courts are not permitted to approve of legislation which clearly infringes upon the letter and spirit of our constitution. The business of a ticket speculator being concededly lawful, it Is, therefore, under the constitutional protection. "The inalienable right of every citizen is to hold and enjoy his property until it is taken from him by doe process of law and when one ia restricted in the sale of his property on terms which are bene- ficial to M' m i it is tantamount to depriv- ing him of the enjoyment of the This is the positive command of the highest court of this state, and in pur- suance of such admonition I have been compelled to declare invalid the price- fixing and the licensing provisions in re- lation to ticket broken contained in Sec- tion 11a of the ordinance. "The judgment of conviction as to each of the defendants is reversed, and, inas- much as no new prosecution can be sue- . ceasfully maintained, "the charge against each of the defendants is also dismissed." The Kilroe-Williams ordinance nullified by the decision of Jndge Rosalsky, was passed last Spring after a great deal of agitation had been aroused in its favor. Public hearings were held in the Alder- manic chamber, at which the ability to draft a law that would stand was dis- cussed. Several different ordinances were drawn by Aldermen, each being submitted, and finally" Assistant District Attorney Kilroe, backed by District Attorney Swann, drafted a bill which was submitted to legal experts for. ratification. The legal experts, including the Corporation Counsel, gave, it as their opinion that the Kilroe drawn ordinance was hole proof, it being so announced at the time. This bill was given to Alderman Williams, who intro- duced rt to the Board of Aldermen, when H was passed, signed by the Mayor and became known as the Kilroe-Williams ordinance. It was said at the time that the bill was passed as the result of support given it by the McBride Agency, one of the largest ticket brokerage agencies in the country. Other brokers whose business is less extensive, claimed that, through thia means, the McBride Agency sought to pnt their smaller competitors out of bus- iness. And why the McBride support counted, they claimed, was because one of the McBride brothers is related by marriage to Grover Whalen, at that time private secretary to Mayor Hylftn, but since promoted to a commissionership. However, following the Taw's enactment, a group of the brokers who had not sup- ported the law, these being led by Leo Newman and Louis Cohen, sought an opinion of its validity from Louis Mar- shal], a lawyer, who is considered one of the most foremost authorities on consti- tutional law. Being advised that the ordinance was unconstitutional, many of the brokers, but Newman and Cohen in particular, evinced a contemptuous disre- gard for it, with the result that these particular brokers, more than any other, found themselves enmeshed in the law on several occasions. And, following their conviction in the Magistrate's Court, they took an appeal, through Louis Marshal, who was engaged as counsel; - with. the result that early this week their counsel's original opinion of the law's validity was sustained by a court of record. As a matter of fact, several of the older assistants in the District Attorney's.office had stated a long time ago, privately, to newspaper men, that they did not believe the law would hold. NANCE O'NEIL DOING SHOW "The Passion Flower" will be played by Nance O'Neill and a company of support- ing artists at the Greenwich Village The- atre next Tuesday evening. In the cast will be Nance O'Neil, Charles Waldron, Charles Fisher, Harold HartseH, Bruce Mantell, Ridler Davis, Joseph Mc- Cauley, Charles Angelo, Mrs. Charles G. Craig, Pauline Moore and otfien. The play has been translated by John* Garrett Underbill. MAR1GNY OPENS VERT BIG Pabis, France, Tan. 2.—Albert DeOonr- viile's "Marigny," theatre of which he has taken control and which reopened some weeks ago as a variety ho use, with an all-star bill, of which Charles Withers, now in London, was the hit, shows a huge profit for its run, so fax. The house was redecorated and repainted, much on the style of English variety halls. On the opening bin was "For Pity's Sake," with Charles Withers, the Mirror Beauty Squad, the Romano*, the Pureella Broth- ers, Boucot and others. ;■ "DEAR ME" VERY HUMAN Axlajtxxo Cur, Jan. 2.—Last.night it the Apollo Theatre, John L. Golden pr*. son ted a new comedy, typical of the kind formerly expected from Smith sad Golden. The new piece is entitled "Dtat Me," and has been written by Hale Ham- ilton, who has also assumed the leadtnj role, and Luther Reed. It has all tat wisdom, good judgment and humor of "Three Wise Fools/' with the solidity of composition and steadiness of actios which that play possessed. It is distinctly optimistic m tone wholesomely so, bat very often straining a point with proba- bility for the sake of its optinum. Nevertheless, its dependence upon char- acter and character development has beea wisely placed, for the people of this new play are all lovable humans, mixed up in a rather hackneyed plot. In a home for artistic- and literary failures, in fact, for any kind of a grot failure we find a number of crabby gen- tlemen, quarreling with themselves, their fate, the food and April Blair. April, who is the inevitable slavey indigency to such places, has some philosopam of her own. She cheers herself by writ- ing herself letters, addressed to "Dear Me" and signed by "Myself," and is which her philosophy of optimism is ex- pressed. With Edgar Cnig, a failure, ai he says, "at life in general,'' and a musi- cian who is just recovering from a ntbe tragic accident, she forms a "trinity" and, together, they go out in the world ia quest of success. How they accomplji this is told in a rather worn-out struc- ture, Edgar Craig secretly being Edni Prentice, a very successful playwright It is through his ministrations that all three win love and happiness. ' Hale Hamilton, as Edgar Craig, doe* a very adroit bit of comedy work in this winsome play. His personality and man- nerisms evoke reminiscences of Jack Barrymore in his earlier days. He is the only noteworthy actor in the cast, whki includes Grace La Rue. - CLOSE MONROE OPERA HOUSE Moitboe, La., Jan. 1.—Legal action has been taken by the local authorities to close the Monroe Open House, following an investigation by the Deputy State Fin Commissioner, when, it is said, it waa found that the theatre was unsafe. The house is operated by the Saenger Amuse- ment Company of New Orleans, and has been operated on a legitimate policy for a number-of years. ••WHTRLWrND*' STILL BLOWING "The Whirlwind" is continuing to blow despite the panning it received from the local press, playing to capacity on the busy nights and to a good sized crowd at other performances. .Vim, Aguglia, who was originally starred in the production, concluded her engagement on Saturday night, being replaced by Laura Walker. It was stated at the Cort offices that Mm a Aguglia had been forced to retin becauM of acute throat trouble. . STARTING H AMMERSTEIN MEMORIAL Headed by Fortune Gallo, a drive to raise sufficient funds for a permanent memorial to the late Oscar H&xnerotciB will be launched next Monday, according to a statement made public this week by the widow of the impresario. - The drive will continue until March 28th, when it will close with a gaUa performance of stars drawn from the Chi- cago and Metropolitan Opera Companies, which will probably be held at the Man- hattan Opera House. The Memorial Fund has established of- fices at 151 West Thirty-eighth street, and Theodore E. Steinway, head of the piano manufacturing concern of that name, has been appointed treasurer. Other officers and the Fund Committee wiH be announced later. HELEN MeCLAIN Helen McCSain, whose picture is on th» cover of this week's issue, is the prima donna of Geo. Bclfrager's "Bap, Hi? Hooray Girls." Her career in burlesque has-been but a few seasons so far, bat she has -gradually pushed herself to the front as one of burlesque's leading licnts.