The Billboard 1907-06-29: Vol 19 Iss 26 (1907-06-29)

y JUNE 29, 1907. The Billboard POWERS MACHINE and FILM EXCHANGE 13 East Genesee Street, New Films! All Makes of Films. WRITE US AND WE WILL Prompt Service! BUFFALO, N. Y. Low Rates! All Makes of Machines. TELL YOU ALL ABOUT IT. tion with others, provided they have no unlawful object In view. Mere numbers do not ordiparily affect the quality of the act.’’ In the cast last quoted, the Court also held, that a labor union may refuse to permit its members to work with fellow-servants who are members of a rival organization, may notify the employer to that effect, and that a strike will be ordered, unless such servants are discharge’, where its action is based upon a proper motive, such as a to secure only the employment of efficient workmen, or to secure an exclusive preference of employment to its members, on their own terms and conditions, rovided that no force is employed, and no unbow ful act is committed. If, under such circumstances, the employees objected to are discharged, neither they nor the organization of which they are members have a right of action against the union or its members. The Comming case is not In conflict with the case of Curran vs. Galen, (152 N. Y. 33), since, in the latter case, it was held that, if the purpose of an organization or combination of workingmen is to hamper or restrict the freedom of the citizen in purchasing his lawful trade or calling, and through contracts or arrangements with employers, to coerce other workingmen to become members of the organization, and to come under its rules and conditions, under the penalty of the loss of their positions and of deprivation of employment, such purpose is against public policy and unlawful In Jacobs vs. Coben, (183 N. Y. 207), an agreement made between the defendants and a labor union, whereby the former agreed for certain period, to employ and retain only members of the union in good standing, and the latter for the same period, bound themselves to furnish the services of its members, was held to be not violative to public policy. On Page 211 the Court said: ‘The inviolability of the right of persons to freedom of action may well extend to any concert of action for legitimate ends, if consistent with the maintenance of law and order in the community and if not interfering with the enjoyment and the exercise by others of their constitutional rights. Their right to combine and to co-operate for the promotion of such ends as to increase of wages, the curtailment of hours of labor, the regulation of their relations with their employer, or for the redress of a grievance, is justifiable. Their combination is lawful, when it does not extend so far as to inflict injury upon others, or to oppress and crush them by excluding them from all employment, gained through joining the labor organization, or trades union.’’ The People vs. Marcus, (185 N. Y. 257), the defendant was charged with a violation of section ITla of the Penal Code, in that he had entered into an agreement not to employ any person who was, or became a member of a labor union. The Court of Appeals reversed the judgment of conviction, declaring this section to be unconstitutional, as being an unau restraint upon the freedom to contract. In this case the Court reaffirmed the doctrines enunciated in the case of the Nat. Protective Assn. vs. Cunning and Jacobs vs. Cohen, supra. At Page 264 the Court said: “It would seem as though an employer should be unquestionably free to enter into such a contract with his workmen for the conduct of the business without its being deemed obnoxious upon any ground of public policy. If it might operate to prevent some rsons from bei employed by the firm, or, possible, from remaining in the firm's employment, that is but an incidental feature. e restrictions were het of an oppressive nature, operating generally in the community to prevent such craftsmen from obtaining employment and from earning their livelihood. It was but a private agreement between an employer and his employees concerning the conduct of the business for a year, and securing to the latter an absolute right to limit the class of their fellow-workmen to those persons who should be in affiliation with an organization entered into with design of ee their interests in carrying on the “That freedom to contract which entitled an employer to make by agreement his place of business wholly within the control of a labor Union entitled him, if he so desires, to require of his employees that they be wholly independent of any labor union.” he situation, therefore, is precisely the same “Ss that which existed In the case of Park & Sons Co, vs. Nat. Druggists’ Assn. (supra), and the Court held that the agreement was in no respect unlawful; since, the object of the Asso “latloo was to further the business of its mem bers, and the motive was not to raise prices, or to restriet the supply of the articles to the public, and that the acts of the defendants Were not prejudicial to the public welfare. 'n Lesiie vs Lorillard et al., (110 N. ¥. ', at page 534, the Court sald: “It may be sald that no contracts were void “Ss being Im general restraint of trade they operate simply to prevent a party from engaging or competing In the same business."’ An agreement whereby a business rival was Prevented from competing was held to be legal and valid im the following cases: Prancisco va. Smith, 143 N. Y., 488. Dismend Match Co. vs. Roeber, 106 N. Y., Tode vs. Gross, 127 N. Y., 480. New York Bank Note Co. vs. Hamilton Bank Note Co., 180 N. Y., 280, 293 et sec, Brett vs. Ebel, 29 App. Div., 256. Lewis vs. Gollner, 129 N. Y., 227. National Wall Paper Co. vs. Hobbs, 90 Hun. 288. Stanley vs. Pollard, 5 Mise., 490. MacKinnon Pen Co. vs. Fountain Ink Co., 48 Superior ‘Court, 442; Appeal dismissed, 93 N. Y. 658. Van Marter vs. Babcock, 23 Barb., 633. Chappel vs. Brockway, 21 Wend., 157. Dunlop vs. Gregory, 10 N. Y., 241. Hard vs. Seeley, 47 Barb., 428. Hadden vs. Dimick, 31 How. Pr., 198. Pond’s Extract vs. Humphrey’s Specific Homoeopathic Co., 50 Hom. Pr., 358. Goods vs. Daland, 121 N. Y., 1. Walsh vs. Dwight, 40 App. Div., 513. Davies vs. Racer, 72 Hun., 43. Ru Ton vs. Everitt, 35 App. Div., 412. Nor was it illegal for the defendants to agree that they would do business only with a as should refuse to deal with their rivals. In Lough et al. vs. Outerbridge et al., (143 N. Y. 271), the Court on page 283, said: “On this branch of the argument the remarks of Lord Coleridge in the case of the Mogul 8S. 8S. Co. vs. MeGregor (supra) are applicable: ‘The defendants are traders with enormous sums of money embarked in their adventure, and naturally and allowably desire to reap a profit from their trade. They have a right to push their lawful trades by all lawful means. They have a right to endeavor, by lawful means to keep their trade in their own hands, and by the same means to exclude others from its benefits, if they can. Amongst lawful men as is certainly included the inducing by profitable offers customers to deal with them rather than with their rivals. It follows that they may, if they see fit, endeavor to induce customers to deal with them exclusively by giving notice that only to exclusive customers will they give the advantage of their profitable offers. I do not think it matters that the withdrawal of the advantages is out of all proportion to the injury inflicted by those who withdraw them on the customers who decline to deal exclusively with them dealing with other traders. In Walsh vs. Dwight, (40 App. Div. 516), the Court said on page 117: “Nor can it be that a manufacturer of merchandise can not agree to sell others upon condition that the vendees in selling at retail should charge a specific price for the goods sold, or should sell only the manufactured prduct of the manufacturer. If a dealer in articles of this kind, for his own advantage, agrees to confine his business to a particular line of goods, or agrees with the manufacturers to charge & particular price for the articles which he sells in his business, such an agreement is not illegal as in restraint of trade or as tending to create @ monopoly, as there is nothing in the agreement to prevent others from engaging in the business, or the manufactur r of other articles from selling their product to any one who is willing to buy, There is nothing to prevent the individual from selling any property that he has at any price which he can get for it. Nor it there any reason why any individual should not agree that he will not sell the property which he owns at the time of making the agreement, or which he thereafter acquires, at less than a fixed price; and certainly a contract of this kind is not one which exposes the parties to it to any penalty or subjects them to any action for damages by those whose business such a contract has interfered with. The next question to be considered is, whether the owning, controlling and leasing of theatres, and the producing of plays and entertainments of the stage, and the booking of contracts for the promotion of plays, is an article of trade or commerce, and, hence, whether the defendants committed acts injurious to trade or commerce. In Webster, ‘‘trade’’ is defined as: . “The act of business of exchanging commodities by barter; the business of buying and selling for money; commerce; traffic: barter. Bi business which the person has learned and which he carries on for procuring subsistance, or for profit; occupation, especially mechanical employment; distinguished from_ the liberal arts and learned professions, and from agriculture; as, we speak of the trade of a smith. of a carpenter, or mason; but we never say, the trade of a farmer, or of a lawyer, or physician.’’ In the same work, ‘“‘commerce”’ is defined as: “The exchange of merchandise on a large scale between different places or communities; extended trade or traffic.” In the Standard Dictionary is defined as: 1. “To dispose of by bargain and sale; now especially to barter, exchange, as to trade horses.”’ *““*trade’’ And ‘‘commerce” fs defined as: 1. “The exchange of goods, ee = ropety of any kind; especially on a large scale e Getwean states or nations; extended trade; in economics, even grouped with agriculture and manufacture as a branch of production.”’ In Vol. 2, Bouvier’s Law Dictionary, p. 1127, “trade” is thus defined: “Any sort of dealings by way of sale or exchange. The dealings in a particular business; as, the Indian trade; the business of a particular mechanic; hence boys are said to be put apprentices to learn a trade; as, the trade of a carpenter, shoemaker, and the like. Bacon, Abr. Master and Servant (D 1). Trade differs from art." Trade has been defined as the exchanging of commodities for other commodities or for money. Commerce has a broader meaning. It consists of intercourse and ‘traffic and includes the transportation of persons and property and the navigation of public waters for that purpose. U,. 8S. v. Cassidy, 67 Fed., 698. U. 8S. v. Coal Dealers’ Association, 85 Fed., 252. In Gibbons vs. Ogden, (22 U. S. 1), ‘‘commerce’ is defined to mean not only trafic but also intercourse, and this definition has been approved in many cases. Henderson v. Mayer, 92 U. S., 259. Welton v. Missouri, 91 U. S., 275. Railroad Company v. Husen, 95 U. S., 465. The words “‘trade’’ and ‘‘commerce’’ are said by Jacobs, in his Law Dictionary, not to be synonomeus; that commerce relates to dealings with foreign nations; trade, on the contrary, means mutual traffic among ourselves, or the buying, selling or exchange of articles between members of the same community. In the Standard Dictionary, ‘‘play”’ is defined: “A dramatic composition for scenic representation by speaking or acting, as a tragedy, comedy, farce, melodrama, or pantomime; as, Shakespeare's plays.”’ “Entertainment,” ‘Source of means of amusement; a diverting performance; especially a public performance, as a concert, drama, or the like.’’ “Theatre,” “A building especially adopted to dramatic, operative or spectacular representations; a play house.’’ In Clifford vs. Brandon (2 Campbell, 368). the Court said: “Theatres are not absolute necessaries of life, and any person may stay away who does not —— of the manner in which they are mapaged.”’ In re Oriental Society (104 Fed., 975.), a petition was filed asking for adjudication in bankruptcy against the Oriental Society, and a receiver was appointed. The creditors moved to vacate the petition, and to set aside the appointment of the receiver, on the ground that the Society was: “A corporation incorporated for the purpose of giving theatrical performances, and is engaged solely in said business.’’ The Court said: “Is it a ‘corporation engaged principally in manufacturing, trading, printing, publishing, or mercantile pursuits’? It seems to me that to ask this question is to answer it. A corporation engaged in giving theatrical performances is, of course, not engaged in manufacturing, printing, or publishing. In my opinion, also, it is clearly not trading or following mercantile pursuits in the ordinary meaning of these words.’ _ Duff (4 Fed., 519), the Court said (p. § ¢ “The bankrupt was a theatrical manager. It did not appear that he had any other busin . page ess. * I think he can not be considered a merchant or tradesman within the meaning of the statute.”’ In re Surety Guarantee & Trust Co. (121 Fed., 73), it was held that a corporation buying or selling stock was not a trader. In Queen Insurance Co. vs. State (86 Rex. 250), it was held that: ““A combination of insurance companies to es tablish uniform rates of insurance and of agents’ commissions is not illegal under the Texas Anti-Trust Law of March 30, 1889, pro hibiting trusts for restrictions in trade or the production, prices, or rates of transportation for commodities or articles of commerce, since a contract for insurance is not ‘trade,’ nor is it an ‘article of commerce’ or a ‘comodity.’ ’’ In Paul vs. Virginia (75 U. S., 159, at 183), the Court said: “Issuing a policy of insurance fs not a transaction of commerce. The policies are simple contracts of indemnity against loss by fire, entered into between the corporations and the assured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word. They are net subject of trade and barter offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one state to another, and then put up for sale. They are like other personal contracts between parties which are completed by their signature and the transfer of the consideration.”’ In Hooper rs. California (155 U. S., 648, at page 655), the Court said: “The business of insurance is not commerce. The contract of insurance is not an instrumentality of commerce. The making of such a contract is a mere incident of commercial intercourse, and in this respect there is no difference whatever between insurance against fire and insurance against ‘the perils of the sea.’ "’ In New York Life Insurance Co. vs. Cravens (178 U. S., 389), it was held that: “The business of insurance is not commerce, and the making of a contract of insurance is a mere incident of commercial intercourse in which there is no difference whatever between insurance against fire, insurance against the perils of the sea, or insurance of life.’’ If theatres are not absolute necessaries of life (in re Clifford vs. Brandon, supra), if a theatrical business {is not trade or commerce (In re Oriental Society, supra), if a theatrical manager can not be considered a tradesman (In re Duff, supra), if a corporation buying or selling stock is not a trader (In re Surety Guarantee & Trust Co., supra), if the business of in surance is not trade or commerce (In Paul vs. Virginia, supra; Hooper vs. California, supra; New York Life Insurance Co. vs. Cravens, supra), then how can it be successfully urged plays and entertainments of the stage are articles and commodities of common use? In the light of the lexicographer’s definition of trade, commerce, play, entertainment and theatre, and of the foregoing decisions, it seems to me that plays and entertainments of the stage are not articles of useful commodities of common use, and that the business of therefore, the defendants did not commit acts producing plays therein is not trade, and that, therefore, the defendants did not comit acts injurious to trade or commerce. The object of the conspiracy statute, subdivision 6 of section 168 of the penal code, is to punish those who conspire to do acts injurius to trade or commerce. The Anti-Trust Act (Sec. 1, of Chap. 690, of the Laws of 1889), was designed to declare illegal any contract, agreement, arrangement or combination whereby competition in the supply or price of any article or commodity of common use be restrained or prevented, inasmuch as such contracts. are against public policy, and, therefore, iMegal and void. The subject matter of a criminal conspiracy need not relate to an article of prime necessity; but it may also relate to a useful commodity of a nature needful for many purposes. With reference to articles of prime necessity, such as meat (Judd vs. Harrington, 139 N. Y., 105); miik (People vs. The Milk Exchange, 145. N. Y., 267; lard (Leonard vs. Poole, 114 N. Y.. 371); sugar (People vs. N. Y. Sugar Refin ing Co., 7 N. Y. Supp., 406; coal (People vs. Sheldon, 139 N. Y., 251; Arnot vs. Pittston & Elmira Coal N. Y., 250; Drake vs. articles such as tobacco (People vs. Duke, 19 Mise., 292); bluestone (Cummings vs. Union Blue Stone Co., 16% N. Y¥., 401); envelopes (Cohen vs. Berkin & Jones Envelope Co., 166 N. Y., 292); carbon (Pittsburg Carbon Co. vs. McMillin, 119 N. Y., 46); harrows (National Harrow Co. vs. Bement & Sons, 21 App. Div., 290); wirecloth (DeWitt Wire Cloth Co. vs. New Jersey Wire Cloth Co., 16 Daly, 520); watches and clocks (Dueber Watch Case Co. vs. Howard Watch & Clock Co., 3 Mise., 582); article of commodity of common use, as books (Strauss vs. Am. Pub. Assn., Si App. Div., 447; 177 N. Y., 473), the Courts have held that contracts by which parties to them combine for the purpose of creating a monopoly in restraint of trade to prevent competition, to. control and limit production, to increase prices. and maintain them, are contrary to sound public policy and void. The Learned District Attorney cites the cases of Hooker vs. Vandewater (4 Denio, 349), and Santon vs. Allen (5 Denio, 343) as analagous to the case to be determined. I do not agree with this view. In Hooker vs. Vandewater(supra), the proprietors of five lines of boats, engaged in the business of transporting persone and freight on the Erie and Oswego canals, entered into an agreement to run for the re~ mainder of the season of navigation, at certain rates for freight and passage, but which were to be changed whenever the parties should deem it expedient, and to divide the net earn~ ings among themselves, according to certaim proportions fixed in said articles. At page 352 the Court said: “It was a conspiracy between the individuals contracting, to prevent a free competition among themselves in the business of transporting merchandise, property and passengers upon the public canals. * * * That the raising of the price of freights for the transportation of merchandise or passengers upon our canals is & matter of public concern, and in which the public have a deep interest, and does not admit of bt.” The case of Stanton vs. Allen (supra), was determined upon the principles enunciated in Hooker vs. Vandewater (supra). The subject matter of the contract in both of these cases affected articles of trade, since merchandise and property are certainly articles of trade and commerce, and, hence, it is manifest that these authorities were based upon the principle that the parties were engaged in the business of and ‘‘commerce.”’ After an exhaustive examination of the subject of what is trade and commerce, I have failed to find any decision, nor has my attention been directed to any decision, classifying theatrical amusements as articles of “‘trade’* and ‘‘commerce.’~* Since I have come to the conclusion that the evidence fails to show any crime has been committed by the defendants under the indictment, it is unnecessary to determine the other questions raised by the defendants. The motion to dismiss the indictment, as against the defendants, Klaw & Erlanger, ig therefore, granted. OTTO A. ROSALSKY. Judge General Sessions, N. Y. Co, Dated, New York, June 19, 1907. The Family Theatre, East St. Louis, Ill., closed its most successful season June 9. The members of the stock company are now enjoying their vacation with the exception of Warren Catterton, who, with the assistance of his wife, Frances Lering, has been especially engaged to present one-act comedies and dramas in connection with the high-class vaudeville that will hold boards until the regular Season opens.