Variety (May 1923)

Thursday, May 24, 1923 • VAUDEVILLE U. S. SUPREME COURT ORDERS HART CASE BACK FOR TRIAL Actual Trial Before Jury in Federal District Court of New York in Summer or Fall—Main Point Whether Apparatus of Act Necessary or Incidental to It —Lower Court Held to Have Jurisdiction to Hear Facts in Action Against Big Time Vaudeville—Interstate Commerce Point Still Involved • The unanimous decision of the JUnited States Supreme Court, sup- plemented by an opinion by Jus- tice Holmes (who wrote the base- ball decision), granting Max Hart «'new trial in the Federal District Court for the Southern District of New York in his $5,250,000 damage suit on Sherman Anti-Trust law charges against the Keith, Orpheum ftnd affiliated circuits and -several vaudeville executives, from E. F. Albee down, proved a surprise to theatrical people in view of the baseball decision (Federal Baseball Club vs. National League), upon which ground Judge Julian W, Mack dismissed Hart's complaint in tho lower court. The appeal, which was taken di- rectly to the U. S. Supreme Court, sidestepping the Circuit Court ot Appeals, was for the purpose of adjudicating as a question of law whether or not vaudeville is inter- state commerce. The local Federal Court declared its laak of jurisdic tion, maintaining that the alleged conspiracy did not constitute a re- straint of Interstate commerce. What was chiefly responsible for Hart winning his point for a new trial was the question. "What is a vaudeville act?" The salient points of the entire litigation are whether or not a booking contract of an ac: Involves as an important or domi- nant element the transportation of paraphernalia or properties. If the" latter, such transportation rises to the magnitude of being interstate commerce. The defendants* con- tention is that a booking contract merely involves" the employment of the artist's personal service. These points must be threshed out at the actual trial. The point of "What Is a vaude- ville act?" was adjudicated on Mar- tin W. Littleton's argument and the briefs of Judge Louis B. Eppstein (Eppsteln & Axman), who set forth that a vaudeville act is a con- structed piece of property, pieced together, starting with the author who created it, then worked on by the producer who casts it, organizes and builds it up, then rehearsed and finally booked as an entity. This was held to differ from the baseball decision in that the ball- players use their uniforms to dis- tinguish themselves 'and that the balls and bats can even be pur- chased in each different state. Trial in Summer or Fall The actual trial, while on the cal- endar, can hardly be reached until summer or fall. It will be a Jury trial and the actual facts will be de- cided upon. From this verdict either way, either litigant has recourse to appeal once again to the Circuit Court of Appeals and Anally the TJ. S. Supreme Court However, the highest* tribunal would then be In the position to decide on the facts of the case as they were presented and not merely a question of law such as was their problem In the interstate commerce point. Maurice Goodman, the Keith and affiliated legal mainstay, interprets the decision with little comment other than since the U. S. Supreme Court seems to think that the Federal court ha9 Jurisdiction, he will endeavor at the trial to prove his contention that the transporta- tion of scenery and properties is merely incident to a booking con- tract and not part of It. The actual argument of the appeal consumed a very small portion of the day, the court reserving its de- cision for two weeks. The case has never been off the calendar since its inception three years ago. Justice Holmes' Opinion Justice Holmes' opinion follows: This Is a suit by one whose busi- ness is getting contracts for vaude- ville performers to perform in the- atres all over the United States and *°Ung as their manager and per- gonal representative. It Is brought ■gainst a combination of corpora- tions engaged in similar business and the owners of a large number of theatres, known as the Kdtth Circuit, and the owners of others known as the Orpheum Circuit, and some other persons not needing spe- cial mention here, who, it Is alleged, are ruining the plaintiff's business by a conspiracy forbidden by the Anti-Trust Act of July 2, 1890, C- 647, 26 Stat. 209. An injunction and enormous dqjnages are asked. The bill was dismissed for want of Jur- isdiction by the District Court on the ground that it did not state a cause of action arising under the Constitution or laws of the United States. "The bill sets out a superfluous length a combination of the de- fendants to exclude actors from the theatres controlled by them, being practically all the theatres In the United States and Canada in which high-class vaudeville entertain- ments are produced, and to exclude the managers and personal repre- sentatives of actors from the de- fendants' booking exchange in New York and from business, unless .they respectively comply with the de- fendants' requirements, including the payment of considerable sums. It is alleged that a part of the de- fendants' business is making con- tracts that call . on performers to travel between the States and from abroad and In connection therewith require the^ transportation of large quantities of scenery, costumes and animals. Some or many of these contracts call for the transportation of vaudeville acts, including per- formers, scenery, music, costumes and whatever constitutes the act, so that it is said that there is a constant stream of this so-called commerce from State to State. "The defendants contend and the judge below was of opinion that dominant object of all the arrange- ments was the personal perform- ance of the actors, all transporta- tion being merely incidental to that, and, therefore, that the case is gov- erned by Federal Baseball Club vs. National League, 259' U. S. 200. On the other hand. It is argued that in the transportation of vaudeville acts the apparatus sometimes is more important than the performance, and that the defendants' conduct is within the statute to that extent at least t "The Jurisdiction of the District Court is the only matter to be con- sidered on this appeal. That is de- termined by the allegations of the bill, and usually. If the bill or dec- laration lakes a claim that if well- founded is within Jurisdiction of the court, it Is within that Juris- diction, whether well founded or not. "Equitable Life Assurance Society vs. Brown, 187 U. S. 308, 311; Dem- lng vs. Carlisle Packing Company, 226 U. S. 102, 109. 110. the former case expressly and the latter by implication follow and reaffirm Swafford vs. Templeton, 185 U. S. 487, 493, to the effect that when a suit is brought in a Federal court and the very matter of the contro- versy is Federal it cannot be dis- missed for want of Jurisdiction, 'however, wanting in merit* may be the averments intended to establish a Federal right See also St. Louis, Iron Mountain & Southern Railway Company vs. McWhlrter. 229 U. S. 265, 275, 276. "It Is not necessary to draw the line between the foregoing and other cases brought in courts of the United States to assert a claim under the Constitution that have been ordered to be dismissed below because 'ab- solutely devoid of merit.' Newbury- port Water Company vs. Newbury port 193 U. S. 561, 676. 679. beyond confining the latter to those that are very plain. It Is enough that we are not prepared to say that nothing can be abstracted from this bill that falls under the act of Con- gress, or at least that the claim Is wholly frivolous. » "The bill was brought before the decision of the baseball club case, and It may be that what In general is incidental in some instances may rise to a magnitude that requires it to be considered independently. The logic of the general rulo as to jurisdictions is obvious, and the case should be decided upon the merits unless the want of jurisdic- tion is entirely clear. What relief, if any, could be given and how far it could go it ; is not yet time to discuss. Decree reversed." *!*&:■ FEDERAL TRADE CASE AGAINST VAUDEVILLE Complaint by Max Hart Against Keith et al. Pending . Washington, May 23. With the U. S. Supreme Court decision in the Hart-Keith et al. case this week, it developed that Eppstein & Axman, .attorneys for Hart, filed a complaint against the same defendants with the Federal Trade Commission, concurrent with the commencement of the civil action. The complaint before the com- mission charges big time vaudeville with being a monopoly, pursuing unfair trade methods and with con- spiracy to prevent Hart from con- tinuing his booking and producing business. It is said the commission has been holding up the complaint pending the higher court's decision on the appeal. It Is at the commis- sion's pleasure to, order an investi- gation to proceed'. Big time vaudeville was before the Federal Trade Commission 'some years ago. After exhaustive hearings had been held in New York the commission in Washing- ton, upon the advice of the Attor- ney General, dismissed the action for want of jurisdiction on the ground vaudeville was not inter- state commerce. NELSON TUCKER "Limb of the Law" in C. B. MADDOCK'S "RUBEVILLE," now finishing their seventh year of Keith and Orpheum vaudeville. PALACE DATE OFF Will Rogers Cancels Because of Ziegfeld Hitch Will Rogers will not play the Palace, New York, the week of May 27 as first reported. Rogers has notified the Keith office that he will be unable to play the date which was tentatively set. Rogers was to have doubled into the Palace from the Ziegfeld "Follies," which he leaves June 2, but a last-minute hitch upset the arangement. Opposition to the doubling by Ziegfeld is reported as the cause of Rogers' disinclination to play the vaudeville date. Eleanor Painter, who was to have played on the same bill with Rogers, has cancelled the booking, notifying the Keith people of the Illness of her mother. At the U. S. District Court for the Southern New York district It was stated this week that the ac- tion of Max Hart against the vaudeville people might be reached, from its number on the calendar, the latter part of June or the first week in July. JACK LINDATJER DISAPPEARS Jack Llndauer (Pisano and Lin- dauer) has disappeared and left no trace or clue. The act was booked at Union Hill for May 12 and 12. The first day "was played, but Lln- dauer did not turn up for the Sun- day show, nor did he send any word to his partner. The team have a long roike booked. Lindauer's mother, who lives in Kingston, tJ. Y., was communi- cated with, but has no news of him. The police have been notified. PERCY WILLIAMS ILL IN BED Percy G. Williams, taken ill sev- eral weeks ago at his winter home in Palm Beach, is still under the care of his physician at his estate, "Pineacres," East Isllp, Long Island. Mr. Williams has been confined to his bed the greater portion of the time since his return north, with an Improvement in his condition re- ported early this week. ELIZABETH MURRAY'S TOUR Elizabeth M. Murray has started a tour under the direction of Jos. F. Vlon. billing herself as "The Inti- mate Entertainer In Dialect Storied- Songs." She ic assisted by a three-piece orchestra, composed of Mel Morris, Joseph Maruca and Joseph Lube. Two More 8hubert Acts Booked Two more former Shubert acts were booked by the western Keith office this' week. They are Bernard and Scarth and Joe Whitehead, both of whom were enabled to secure an audience and hearing from the Keith people following Insertions of advertisements In Variety, ENGAGEMENTS Susan Scott, Boyd & Hall Players, Stone opera house, Binghamton, NY.' Hooper Hatchley, Ed Renton stock, Lyric, Hamilton, Ont Antoinette Rochte, Jake Wells Players, Richmond, Va. Perry Norman, William Augustin stock, Taunton, Mass. Harrison Hoy and Jeannette Con- nor, Proctor stock, Troy, N. Y. Jack W. Lewis (formerly with Maude Fealy stock, Newark), B. F. Keith stsek. Alh mbra. New York. Harry Burns and Co., including Charles Senna and Carletta Dia- mond, for "Ths Vanities of 1923." Lorln Raker for "The Gingham Girl" (June 1, replacing Eddie Buz- zell). Alden Tiberlo, Italian actress, Keith vaudeville (next season). k Anne Elstner, "Sunup." Kelso Brothers, "Happy Go Lucky" (Columbia wheel show). Win Fox and Harry Koier, "It's All in Fun" (Columbia). Nat Nazzaro, Jr., Roy Cummlngs, '♦Spice of 1924." Barbara Beaver, Aileen Bror.son'a vaudeville act. • ' Anne Elstner for "Sunup," Prov- lncetown Players production. Peggy Hopkins-Joyce, James Cody (stage manager) for Earl Car- rolls' "Vanities of 1923." McKay Morris, Ernest Lawford, Henry Hull, Etlenne Qirardot, for Players Clubs "School for Scan- dal." Nat Weaker, Tony-Zebro, Mans- field Comedy Co. (touring). Stephanie D'Este, Plckert stock, Freeport, L. L Primrose Second, "Sun Showers" (opening May 28 at Philadelphia). Beleska Mallnoff. "Go-Go." Florence Eldrldge, "Around the Corner" Edna Hlbbard, "Crooked Square.'' Ray Dooley, "Vanities of 19L'3." Gavin Gordon, "Romeo and Juliet" Paul Doucet, "Officer 666" (In Paris). Waltei Abel, "Mary the 3rd." CON'S BALL TEAM MUST QUIT GOLF; WRY FINISH Fines and Call Downs Handed - Out to Golfing Apple Chasers Dear Chick:—I finaliy found out what was the matter with my ani- mals after they dropped their sixth straight game and believe me they won't get away with any more mornin golf while I'm runnin this ball club. Cuthbert and Algie took the whole club one mornin and taught them how to play golf. They have been gettln up early ever since and goln out on the links and playin 18 holes, reportln at the ball orchard In the afternoon so all In they could hardly run to first base. I suspected somethln was wrong when they begun sprmgln that new language on me about toppin 'em, etc., so I had one of the bat boys watch them for a few mornins but the kid went democratic on me and didn't tip nothln. He was one of their caddies. I finally caught them sneakin out about 6 a. m. with golf bags under their arms and gave them a trail to the country club that Cuthie and Algy has horned them Into. Tou ought to see that flock of glboneys when I stepped out from behind the club house at the flrst~hole. They near dropped. The two main framers tried to get me to play a round with them, but I bawled them out to a fare thee well and told them if, they didn't win that afternoon they could kiss themselves good bye. If I want golf players I'll send for Walter Hagen and a few of them big 9 leaguers. My gang can play all the golf they want in the winter but in the summer they will have to stick to chasln the apple, or else. • Can you imagine the nerve of them bozos? Trailin along In last place and all they are worryln about is whether they is hooklp em or sllcln em. After I slice a few berries off their jack maybe they will get the Idea. I have read about MoGraw and them big league managers orderln the golf clubs put In camphor after the spring tralnln but I never thought it would percolate down to the bushes. It's opposition. The first thing I know they wont be anybody out to the ball park at all. The mob piled Into Newark In the afternoon and finally won an- other ball game after they had about convinced me that the W column meant waste and -not win. I told them to parlay that victory into a large family and climb out of the second division or the stock- holders would be on them In a body. One of the local scribes who dont think so much of me and my club has been hintln at this golf- thing for a week but I never give it a rumble. I always figured it was a nice harmless pastime fo.* a lot of akays but it seems that the game has got everybody by the ears. Everywhere I go I hear dames and young fellers crackln : bout goln around in 120, etc., and *alkln this golf language that my ball club has adopted for their native tongue. Today Cuthbert started up to hit with a clgaret^ rtuck in his kisser and when I yelled at him he said he forgot for a* minute where he was and thought he was out on the links. I plastered a ten buck fine on him to help him remember and he'strikes out like he was tryln to wave to a guy on a roof outside of the park. Mornin practise from now on and if they can find time in between to play golf they are welcome to it I have a good club If I can get them goln but the old' trouble about a club beln as strong as it's pjtchin staff applies to my bunch. The pitchers to date cant win a ball game unless you spot them about a dozen runs. The gang go out and get a flock of tallies only to watch these crockery armed heavers toss them away. You wont hear any more beefs out of me about golf for I think I have made it plain to these eggs that any one of them can leave any time and strengthen the club. Your Old flldft Irtnlr^ Con. *55 WEEKLY FOB MRS. DONER Mrs. Ted Doner has been awarded $55 weekly alimony for the support of herself and two children as a result of her suit for separation on grounds of cruelty. Ted Donor Is o* the i:o*e and Doner art.