The Billboard 1910-11-05: Vol 22 Iss 45 (1910-11-05)

22 The Billboard NOVEMBER 5, 1910. Circus Wins a Victory. (Continued from page 20.) 5. That in order to give the proper performance or exhibition of said circus or menagerie, it is necessary to have large tents and carry many Wagons, borses and cages and a great deal of property and paraphernalia that must be moved very quickly; that the business of exhibii'ng a cireus and menagerie calls for prompt and immediate action as soon as a performance in one city or town is ended and requires great swiftness and celerity in moving the vast amount of property, including horses, animals and wagons and paraphernalia for one exhibition from one town to another in order to give said performance as contemplated and advertised; that a delay of a very few minutes may and will disurrange the whole order of moving said show and on account of having to move said show on especially arranged railroad schedule, a few minutes’ delay will disarrange said sch d vie and materially interfere with the trapsportation of said property to the next town, and is liable to prev nt the said property and paraphernalia arriving in time to successfully give its performance in the manner advertised, and in this way will lose a vast amount of patronage, that it is impossible to calculate or determine and in this way plaintiffs will suffer irreparable injury. 6. The plaintiffs would further show that they expect to tender and pay, in each of said towns and cities above named, the amount of tax required by law, as an occupation tax for giving or exhibiting one performance at each of said plac s and expect, in good faith, to pay and ten der to the tax collectors, as required by law. before the giving of each performance, the full amount of the tax required by law. 7. The plaintiffs would show that the defendant, W. J. McDonald, is acting as State Revenue Agent and in his individual capacity, in the acts and things hereinafter complained of; that notwithstanding the fact that the plaintiffs intend, in good faith, to tender and pay to the collectors of taxes in the various counties, the full tax required and prescribed by law for the giving of said performances, the said defendant, W. J. McDonald, has, both as an individual and as State Revenue Agent, given instructions te each of the tax collectors in said places, as petitioners are informed and verily believe, to the effect that they shall collect from the plaintiffs a tax for two performances at each of said places, and have also, as plaintiffs are informed agents and managers of the plaintiffs are ar rested or the property of the plaintiffs attached, as threatened, and has been done heretofore by the defendant and under bis instructions, the plaintiffs will suffer greatly in reputation because they are held out to the public, and especjally in authorized interviews by the defendant to the press of the State as being law-breakers and violators of the laws of the State, to plain tiffs’ damage for which no adequate remedy at law exists. 9. That in doing the things or in threatening to do the things above enumerated, the defendant is acting without any authority of law and as these plaintiffs verily believe, for the purpose of harassing, annoying and vexing the plaintiffs and for the purpose of illegally forcing the plaintiffs to pay a tax not required or pre scribed by law; that no adequate remedy at law exists in case the defendant pursues the course that he has been pursuing with reference to the plaintiffs and threatens to pursue in the future for the reason that even if the agents and emplores of the plaintiffs are acquitted, it will involve the trial of a great number of cases, involving identically the same state of facts, and the great expense, annoyance and trouble, and will take the said employes’ and agents’ time and attention away from the show or exhibition, and prevent the giving of a successful exhibition by the plaintiffs, as advertised. That the damage thus done, while very large, cannot be accurately or even approximately estimated in dollars and cents, and therefore no suit for damage against the defendant, either in his in were able to respond in damages, will lie. 10. That as an evidence of good faith of these plaintiffs in the matter, before the plaintiffs started the exhibiting of said circus and men | agerie in the State of Texas, they offered to the defendant, in writing, by their duly authorized agent, to secure the payment of all taxes. which it was held that the plaintiffs were liable for, and give a bond with the American Surety Company, a corporation authorized by law to give such bonds in the State of Texas, upon either one of the following conditions: dividual capacity or official capacity, even if he | titled (1) Said circus company will make a state| ment of the facts and circumstances constituting one performance and if accepted by the State hereby agrees to accept service, join issue in an action thereon in court, to try and determine as a test case all legal questions involved and the respective rights of the State and circus company. by law, showing the defendant's utter disregard of the law and his intention to harass, vex and annoy the plaintiffs with unjust, illegal and unfounded complaints and suits, thinking by bringing a multiplicity of suits and institut ing a great many criminal proc: edings, that the plaintiffs will pay the tax, not authorized or prescribed by law. rather than go to the exnse, trouble and annoyance of fighting the criminal proceedings aud attachment suits. Wherefore, plaintiffs pray that upon final hearing hereof, that your honor grant your most gracious writ of injunction restraining the de fendant from instituting or causing to be insti tuted or incite or direct any other person to do so, any suits of a civil nature against the plain tiffs, their agents or employes, or any criminal proceedings against the plaintiffs or any of their agents or employes, growing out of the matters and things herein alleged; that pending the final hearing of this petition, that a temporary restraining order be issued, restraining the de fendant from instituting or prosecuting any civil or criminal proceeding of any kind or incit ing or directing any person from instituting or prosecuting any civil or criminal proceeding against either of the plaintiffs, their agents or employes, on account of the matters and things above alleged. Plaintiffs further pray for gen eral relief. JOHN M. KELLEY, ALLEN HART TERSON, Attorneys for Plaintiffs. I, J. M. Kelley, do swear that I am the au thorized attorney for the plaintiffs in the above and numbered cause; that the facts Stated in the foregoing petition are true where Stated to be true, and where stated upon infor poten and belief, I verily believe them to be rue. & PAT JOHN M. KELLEY. Subscribed and sworn to before me by J. M. Kelley on this, the 19th day of October, A. D., 1910. Notary Public, Travis County. Texas. October 19, 1910. Upon the filing of a good and sufficient bond by the plaintiffs herein in the sum of 100.00, conditioned as required by law, and conditioned also that the plaintiff will pay to the State of Texas all taxes and interest and penalties and other sums of money that they may be adjudged to pay it by the final result of this litigation or any other suit or suits instituted in any court of competent jurisdiction to collect any adjudged to be due by virtue of the giving the taxes | tions in the South, is a gentleman who will see | that you have no dull moments during your stay | in Knoxville. The 101 Ranch Show is now playing the South-rn States east of the Mississippi and doing a big business. In spite of the fact that the 101 did not go very far west this season and played almost pte in the same territory with other smaller wild west outfits and had several close stands to a couple of the | big circuses, they report this as the best season they have ever had since taking to the road. Saw Col. Wm. Lavelle, the man that looks so much like Col, W. F. Cody, bere in Chicago, and learn that he is to head a big brand new wild west organization next season. He was formerly identified with Rhoda Royal's Indoor Cireus and Wild West and Seaver’s Young Buffalo Wild West. The Flying Jordans, who have been a big feature with Pain's Fireworks Show, sailed from New York, October 15, for Amsterdam, Hol. land, where they open an extended European engagement. Am glad to leara of the big hit Harry De Marlo, the frog man, formerly of the Ringling Show, has made in Europe. He was recently presen.ed with a beautiful diamond studded gold watch by Queen Wilhelmina, of Holland. There was a telegram for Tom North at the Colonial Hotel in Knoxville when I left. 1 inquired why they did not forward it on and was informed they had tried four different towns, but as fast as they learned where North was upon inquiry again, heard he was some where else. Always knew you were a hustler Tom, but did not think you could out-race the telegraph. The ice chest has been packed away. Will Rogers, fancy roper, “he of the chewing gum,"’ writes me h* has been resting for the ~~, six weeks on his ranch in Oklahoma, hav. ng the time of his life. His father, “‘Uncle Clem" Rogers, formerly Governor of the Chero kee Nation, says this visit of Will's has made him fe 1 twenty years younger. Mr. and Mrs. Dell Blanchett, formerly cowboy and cowgirl with the 101 Ranch, but now em ployed by the Bison Film Company, of Los An geles, Cal., entered into a contest with the cowboys and cowgirls of the Irwin and Hersig Cheyenne Show at Sacramento, Cal., on Sept. 8, 1910. Mrs. Clayton Danks, of Wyoming, won first money over Mrs. Bertha Blanchett in the women's cow, pony race. . i t tS fea 7 aes vay Ay Aur T. cJOHN. and believe, instructed said tax collectors. is threatening so to do, to arrest the various agents, employes and managers of said circus and menagerie, six hours in alvance of the giving of any performance in each of said towns, and to sue out a writ of attachment and have the property of the said plaiatiffs engaged in the givirg of such exhibitions and performances at or teeched for the purpose of collecting illegal taxes, although the plaintiffs are not liable for more than one tax and will not be liable for | more than one tax; that in order to show that the defendant expects and intends to execute the threat and instructions that he had given. he has already caused the arrest of employes and agents of the plaintiffs engaged in other por tions of the State of Texas in giving exhibitions of a cirens and menagerie, and controlled by plaintiffs, and although upon a trial before a court of competent jurisdiction, upon the merits of the controversy, an employe thus arrested Was acquitted and discharged and the court judically determined that only one performance Was given. (2) Or, said circus company offers to have a test case made upon the facts constituting the first of said performances at the respective town named, accept service, and proceed to trial, with due ,and convenient speed, and agrees that all remaining performances and exhibitions, in which said questions are involved, given by the said company in the State of Texas during the season of 1910, shall be governed by and abide the final result of said trial. (3) Said circus company offers to join all cases arising under said itinerary as actually carried out by virtue of the dispute between the State and said circus company as to the license tax col | lectible under their respective particular charges made for general admission and reserved seats, and whether said or certain exhibitions as con | ducted by said circus company legally consti tuted one or more performances for which sep | arate fees are collectible, in one suit, accept and that the exhibition or performance given by | | of reputable standing that they are not liable the plaintiffs constituted only one performance, the defendant still threatens and intends to and will unless restrained, the plaintiffs verily be lieve, have various employes, agents and man agers of the plaintiffs arrested at each and all of the above mentioned towns. 8. The plaintiffs would show defendant as an individual that or as acting State service and try at the same time separately the issues of each respective cast. 11. That the plaintiffs are advised by counsel but for one tax in each of the cities and towns mentioned, under the facts and circumstances as above detailed and as they expect to carry out: | that a court of competent jurisdiction, under the unless the Revenve Agent, is enjoined and prohibited from | doing the acts and things above mentioned, that | the plaintiffs will suffer irreparable injury in this:—that they will likely lose a great deal of patronage from the shows and exhibitions in various towns, as above indicated, that they will lese the services of agents. managers and em ployes, because of such arrest and taking them away from their business; that their places can not be filled within a reasonable time or before November 5 and in this way a successful and profitable exhibition or performance cannot be given and the damage thus sustained by the plaintiffs cannot be accurately estimated or fore | question in either of the same or similar circumstances has held that they are not liable but for one tax at each place, and that the performance, as given, was only one performance and a continuous performance. and that plaintiffs have made every effort to have the defendant and the proper officers test the question either in one suit, as one exhibition, or in a suit involving all of the exhibitions, but the defendant has declined to institute a civil suit, as is authorized by law, to test the Ways suggested, but | has started out with the expressed intention of arresting the agents and employes of the plain tiff, or have them arrested, at each of the towns and cities above named, and attach the property | of the plaintiffs for the amount of the tax il told, and no adequate relief can be given in a | civil suit for damages against the said Melon ald; that if attachments are issved and levied upon the property of the plaintiffs it is liable to seriously interfere and will interfere with the present and proper movement of said show from one town to another, prevent the giving of su cessful performances, as advertised by the plain tiffs in said towns and will cause Irreparable damage to plaintiffs for the loss of patronage that cannot be accurately estimated and calcu lated, and no adequate remedy is afforded to plaintiffs in an action for damage against the defendant, McDonald; that if the employes, | counties where the plaintiffs expect legally claimed and undertaken to be collected by the defendant, although the plaintiffs ar: amply solvent aad able to pay many times over the amount claimed by the sald McDonald. That the said defendant has instructed and will in struct, as the plaintiffs are informed and be lieve, each of the tax collectors In the various to exhibit their cireus and menagerie, to arrest and at tach six hours in advance of the performance, whereas the law does not authorize any such ar rest until after the exhibition has been given, if it has been given without the payment of the proper tax, and no Hability arises to the State for the tax until after sald given without paying the proper tax prescribed performance is | performances or exhibitions at the places and the times named in the annexed petition. The Clerk will issue and cause to Se served upon the defendant, W. J. McDonald, as State Revenue Agent of the State of Texas, and individually, a temporary injunction or restraining order as prayed for in the annexed petition, until the farther orders of this Court, restraining and enjoining the said defendant, W. J. McDonald, his agents and employes, from instituting and from prosecuting any civil suit or suits or criminal proceedings or inciting or directing any person or persons to institute or prosecute any such suits or criminal proceedings against the plaintiffs, or any of them, their agents, managers or employes, for the collections of any State tax, ex cept for one performance at each of the places and on the dates stated in the annexed petition. And in the event plaintiffs shall, at or before the commencement of the exhibition at sald re spective places and on the dates named, pay to the proper authorities, the State tax pre scribed by law for one performance or exhibi tion, at each of said respective places no suit or proceeding shall be instituted or prosecuted by the said defendant, his agents or employes, against the plaintiffs, or either of them, or the agents, managers or employes of said plaintiffs because of the non-payment of the State tax for more than one performance, until this cause shall be heard and determined, or, until the further orders of this Court herein made and entered, upon any motion to dissolve this tem porary injunction herein filed. GEORGE CALHOUN, District Judge. HERE AND THERE. —_—— By GUY WEADICK. Chicago, Oct, 27.—Left Knoxville, Tenn., and the Appalachian Exposition grounds the day following the close of the biggest exposition held in the South. Most of the concessions which were booked by the United Fairs Booking Asso elation, of 304 Schiller Building, Chicago, went to the big doings at Montgomery, Ala., and the State Celebration at Columbus, Ga, In Mr. Warren and Mr. Harris, the United Fairs peo ple have a couple of up-to-date hustlers from the word go. hat is, no doubt, the reason of the concern’s wonderful success, having the services of such really competent showmen. Wish to say here to all folks in the business when visiting Knoxville, be sure and look up Mr. Guy Smithson, The Billboard representative, who, besides being thoroughly versed in ever branch of show business and Its present cond. | Blanchett, The Irwin and Hersig outfit offered 3100, standing offer, to any outsider to ride the origi nal bucking outlaw horse, “Old Steamboat,” a bronk that is known wherever there are bucking horse riders. Art Acord, a cowboy, who hailed from Los Angeles, Cal., and claimed he came uP to Sacramento especially to win the purse, blindfolded and saddled and rode ‘‘Steamboat”’ for two minutes and a half successfully But on his arrival at th: judges stand was told that be bad not lived up to certain conditions which governed the riding of bucking horses, The crowd in the stand hissed and cried “Fair Play to California.”, Some one called out ‘Pass the Hat."" This was done by some friends of Acord’s and about $150 was collect d and turned over to Acord while the crowd cheered. Then Chas. Irwin, manager of the Cheyenne outfit, an nounced through a megaphone that the $100 purse would be awarded to Acord in front of the grand stand. The crewd cheered themselves hoarse when the announcement was made. Dell Blanchett, of Los Angeles, was pitted against Buffalo Vernon, of the Cheyenne Show, for the championship in the steer “bull dogeing”’ contest. The event started on Wednesday and each man was to leap from the back of a run ning horse to the horns of a wild steer and by main strength throw the animal to the ground. Wednesday, Sept. 7, Vernon, 34 seconds: 36) seconds, La ag Sept. 8, Vernon failed to make a showing; Blanchett, 2 minutes, seconds. Friday, Sept. 9, Vernon threw his steer twice but each time it got away. Vernon had hix wrist broken at the Cheyenne, Wyo, contest and that probably had something to do with his bad luck; Blanchett, 16 seconds, First prize, $100. Blanchett. Second prize, $50. Vernon. Understand that a prominent sporteman is arranging a big riding and steer ‘‘bull-dogging”’ contest to be held in New York City early next spring, and if possible to have Rill Pickett, Buffalo Vernon, Tom Mix, Dell Blanchett, Pat Long contest for the world’s championship and a handsome purse, The Kireh Bros., of Modale, Iowa, have just pulled into winter quarters after a snecessful season of playing fairs in the middle West with the Wild West which is called the A. K Ranch Real Wild West, They open in Apri! — a three-car wild west to play parks and airs, Geo. W. Meyers ts erecting in Detroit, Mich. & $20,000 vaudeville house. Four acts a week will be booked. Price of admission will be ten cents. The house will seat about 600, and will be opened December 1,