Variety (Mar 1927)

Wednesday, March 16, 1927 EDITORIAL VARIETY 37 KIETY Tr»d« Mark Itaalatarad W«Ur kr UEira r. b.. Sim* lUTwmu, President HI wui *Mk mttt Maw T.rk Cltr ■UBaCRIPTION: Annual. IT Fm«l«u II Hail* Coplea t* Gauta YOU LXXXVI No. 9 50 YEARS AGO <JP*o» "CWppar.") Congress adjourned In the wildest filibuster of history over the elec- toral count In the previous presi- dential election. They counted out Tllden and declared the President to be Rutherford B. Hayes, Gov- ernor of Ohio, Just in time for his inauguration March 4. There had been bloodshed In the south on the vote, but the inaugural ceremonies were without disorder. The Clipper mentions as a detail that U. S. Grant, the retiring Presi- dent, would have removed from the White House bis famous billiard table, built for him and carried much about the country. Its rails sloped down from the top instead of being bevelled from the bottom, as was standard equipment even in 77. The chicken fanciers of New York City and Westchester gathered for a big cocking main In northern Manhattan. Each side presented 17 birds and agreed to fight all who would stand up, $50 to the fight and } >00 on the odd match. The New Yorkers, won, 8 to J. John McCall was executed in Tanktown, Dakota Territory, for the murder of "Wild Bill" Hlckok, one of the picturesque western gun fighters with whom the late "Bat" Masterson was associated at times. More horses were In training for the approaching season around New York than ever before, being spread from Jerome Park to Monmouth Park. Ribery Stickney, circus rider and founder of the family of that name, passed through New York on his way to Join the Robinson circus In Cincinnati. The narnum show was booked to •pen at the Hippodrome, New York, April 5. The route for the season would be through New England after New York, west In Canada and then south through Mississippi valley for Texas dates. (Fifty years ago the Hippodrome was In Lower Manhattan, around St. Paul s Church.—Ed.) Somebody let the cat out of the bag. The baby elephant reported as Just born in Forepaugh head- quarters in Germantown, Pa., was n >ly two years old and had been bought abroad and imported. LITERATI (Continued from page 15) key, the Balkan peninsula and down to Greece. D. E.'s and Assts Charles G. Snyder, formerly of the '•.Morning Telegraph." has gone over to "The"Home News" (Bronx daily) as assistant dra- matic editor, aiding Pincus William Tell. Sol Cohen, whom he replaces, will handle Bronx theatres for the same paper. Maurice McLaughlin is the new dramatic editor of the Brooklyn "Eagle," succeeding Mor- ris Kinsler, wh> has become assist- ant to Alex Yokel In the Sam H. Harris press department. Art Mags Back The so-called "art" magazines are reappearing on the newsstands, 'ho agitation against them having died down. The girls on the cov- ers arc now posed more discreetly, hut otherwise the contents remain 'he same. That U liti ral, .is the publishers of thrse magazines arc not bash- ful about using illustrations over anj over again, a few issues apart. irvin rvhb i,as returned from two weeli.s with bis mother in P»- 'lucah, Ky. Mirhael Arlon has finished TICKET CASE—AND OPINIONS Dave Marks of the Tyson and Brother-United ticket agency, In suc- cessfully carrying the fight against Dm New York state law limiting the resale of theatre tickets to M oants to the Supreme Court, recalls other Instances of single-handed flgbU which oo n oorned theatrical In- terests along Broadway. When the case was first defeated Marks and hi* attorney, Louis Mar- shall, perceived that the price-fixing feature of the law was left out of the decision. The other ticket broken walked out and Marks, at an expense of over $20,000, took the case again to the highest tribunal and had the law declared unconstitutional. Marks Insists It was a matter of principle with him and does not expect the expense will be shared by the others. And he does not care. It recalls Relsenweber's cabaret, the scene et the first liquor arrest and padlock case. The evidence (one half-pint of whiskey) was alleged to have been planted, but on the law the ease was never threshed out in the courts. Louis Fisher, owner sf Re l senweber's, called on Paul Salvia and suggested all restaurateurs finance a fight that would estab- lish the status of the law. Salvia replied It was a ease of every fellow for himself and refused. Singly, Fisher could not undertake to fight. Within a couple of years Salvin establishments were padlocked. Prior to that the case of "The Deml-Vlrgln" was fought singly through the courts by A. II. Woods. He proved the license commissioner was not empowered to revoke the license of a legit theatre without "due process of law." It cost Woods $26,000. though It cerned all New York legit managers and Opinions In reading the opinions of the Justices of the Supreme Court, which validated the New York law five to four, the wonder la that the decision favored the ticket men. Justice Sutherland, writing for the majority, based the decision on precedents that date back long before there was any ticket problem, though the real basis for declaring the 50-cent taw unconstitutional was the belief that If price fixing by law is countenanced there might be no limits to which It might extend. Justice Stone, in writing the dissenting opinion, undoubtedly had a clear conception of conditions as they are. Quoting Justice Walte in the case of Munn vs. Illinois, which Is referred to a number of in the decisions, he said: "If no state of circumstances could exist to Justify such a statute, then we may declare this one void, because in excess of legislative power of the state. But if it could we must presume It did." Quoting another case he said: "Every new act of regulating legislation and regards legislation In- valid or dangerous until It has become familiar, government—state and national—has pressed on In the general welfare, and our reports are full of cases where in instance after Instance the exercise of the regu- lation was resisted and yet sustained against attacks asserted to be Justified by the Constitution of the United States. The dread of the moment having passed, no one Is now heard to say that rights were re- strained or constitutional guarantees Impaired." Tho Justice then gets to the meat of the matter: "The question with which we are concerned is much narrower than the one that has been principally discussed by the court. It Is not whether there is constitutional power to fix the price which theatre owners and producers may charge for admission. Although the statute in'question declares that the price of tickets to place of amusement Is affected with public interest it does not purport to fix the prices of ad- mission. The producer or theatre proprietor is free to charge any price he chooses. The statute requires only that the sale price, whatever It Is, be printed on the face of the ticket and prohibits the license ticket broker, an intermediary in the marketing of tickets, from reselling the ticket at an advance of more than 50 cents above the printed price. Nor is it contended that this limit on the profit Is unreasonable. It appears affirmatively that the business Is now carried on profitably by ticket brokers under this very restriction. But If it were not there could be Judicial relief without affecting the constitutionality of the measure. It resembles Munn vs. Illinois. . . . The statute there as the statute here was designed in part to protect a large class of consumers from exorbitant prices made possible by the strategic position of a group of Intermediaries in the distribution of .a product from producer to con- NELLIE REVELL IN HOLLYWOOD By NELLIE REVELL Hotel Hollywood, March 11. So far quite the smartest affair I have attended here was the Mayiair Club. It Is the same as the Mayfair In New York, only more so. It Is what the old Sixty Club originally started out to be. The elite of fllmdom give a get-together dinner dance once a month and the guest list Is checked over only as carefully as the list applicants for a Park avenue finishing school. Tho only possibility of crashing the gate Is to hire a plane, fall out of It and burst through the roof. As for the decorum observed there, the Court of St. James Is riotous In com- parison. Old friends whom I met there were Norma Talmadge, Edward Davis, Queenle Vassar and Joe Cawthorne, Adolphe Menjou, Mr. and Mrs. Tom Mix, Mrs. Ira Will. Jack and Estelle (Taylor) Dempsey, Duncan Sisters, Elinor Glyn, Mr. and Mrs. Cosmo Bellew, Arthur West. Fannie Ward, Louella Parsons, Dorothy Herzog, Mr. and Mrs. Fred Beeson, Mrs. Wil- liam Riley and Eddie Sutherland. That diamond horseshoe at the Metropolitan opera house would have looked like a candle hidden under its bushel, compared to tho diamonds worn by the movie queens. It looked like a small section of Klmberly, South Africa, or would have If the gems hadn't been outshone by the beauty of the girls themselves. How can anyone expect the men out here to keep their minds on their work? 2.000,000 Tickets Sold "There are about «0 first-class theatres In the borough of Manhattan. Brokers annually sell about 2,000,000 tickets, principally for admission to these theatres. Appellant sells 300,000 tickets annually. The prac- tice of the brokers, as revealed by the record, Is to subscribe In advance of the production of the play and frequently before the cast is chosen for tickets covering a period of eight weeks. The subscriptions (buys) must be paid for two weeks in advance and about 25 percent of the tickets unsold may be returned. A virtual monopoly of the best seats, usually the first 15 rows, is thus acquired and the brokers enabled to demand extortionate prices of theatregoers. Producers and theatre pro- prietors are eager to make these advance sales, which are an effective Insurance against loss arising from unsuccessful productions. The brokers are In a position to prevent the direct sales of tickets to the desirable seats and to exact from the patrons of the successful produc- tions a price sufficient to pay the loss of those which are unsuccessful, plus an excessive profit to the broker. "It is undoubtedly true as a general proposition that one of the In- cidents of the ownership of property is the power to fix the price at which It may be disposed of. It may be assumed that, as a general proposition, under the decisions of this Court, the power of state govern- ments to regulate and control prices may be invoked only in special and not well-defined circumstances. But when that power is invoked In the public interest and in consequence of the abuse of private right disclosed by this record, we should make searching and critical exam- ination of these circumstances which in the past have been deemed sufficient to justify exercise of the power, before concluding that it may not be exercised here. . . • "The constitutional theory that prices normally may not be regulated rests upon the assumption that the public interest and private right are both adequately protected when there is free competition among buyer* and sellers, and that in such a state of economic society, the interfer- ence with so important an incident of the ownership of private prop- erty as price fixing is not Justified and hence is a taking of property without due process of law. "Statutory regulation of price Is commonly directed toward the pre- vention of exorbitant demands of buyers and sellers. An examination of the decisions of this Court In which price regulations has been unhold will disclose that the element common to all Is the existence of a situ- ation or a combination of circumstances materially restricting the regu- lative force of competition, so that buyers or sellers are placed at inch a disadvantage In the bargaining struggle that serious economic Conse- quences result U) a very large number of members Of the community, athothet 'hi" siutaiion nrises from t he monopoly conferred upon public service companies or from the circumstance that the strategical position of a group is iUch a.i to enable it to impose its will in matters of price upon those who sell, buy or con.-ume. . . . BeM interest Is not per- mitted to Invoke constitutions* protect!*!! at tho expense of the public Interest and reasonable regulation of pi ire is upheld. "That should bo the result here. We need not attempt to lay down any universal rule to apply to new and unknown situations. It |* enough for present purposes that this cajo falls within the scope of the earlier decisions and 'I Bt tit" exorcise, of legislative power now considered was be question as stated is not one of reasonable prices, Somebody slipped when they said all the world loves a winner. They shouldn't have included Loa Angeles, for Jack Dempsey is far more popular here now Blnce losing than while champion. Los Angeles, at least, loves a loser If he is a good loser and nobody has ever questioned that Dempsey Is that. Jack goes everywhere and Is quite a social favorite; on all sides one hears stories in his praise as well as that of his exotic.illy beautiful wife, Estelle Taylor. Ring experts have always claimed that Dempsey was faster on his feet than any other heavyweight champion. Those who have seen him dance at the Mayfair Club will agree that he is as graceful also. Carpentier was supposed to have been the creme de creme of elegance but I doubt if he could even approach Jack as a terpsichorean artist. Another favorite out here, though of a different type, Is Roscoe Arbuckle. It may seem strange after all the hue and cry, but tho heart of those who know always goes out to a martyr and the picture colony treats the'dis possessed star with the greatest affection. No one cares to express an opinion as to the Justice of his treatment by the public but his friends—and they are many—say of him that he Is very chastened, very mellow and more winning now than before. He no longer acts but is finding an outlet for his genius by directing, under the name of "Good- rich." his mother's He jests at fun who was never a guest of honor at the Wampas Club. And being a woman Wampas has its responsibilities, especially if you happen to be the only one. So the next time I am a "feedee" at one of these feeds and have to pay for it by making a speech, I am going to de- mand that I be put on before Neal O'Hara on the grounds of self-pro- tection. Because after Neal has had an audience In stitches for 20 minutes, the next speaker would have to bo a Wheeler and Wilson sew- ing machine and Heavens knows I'm no singer. Just the same I have n good joke on Neal and, since he claims to be a constant reader of my column, this Is a good place to "oor.e" It to him. That story he tells about the small town, where he leaned against the lamp post for two hours before anyone came along. Is a great story but he'd better change the locale and put It In some little town where the grass Is so tall the sun has to back In. He can find plenty of them In his own state without picking my home town—yes, Neal, whether you knew It or not. South Bend is my home town, Alma Mater or what have you? But it was at least s frank confession for a Harvard man to admit having been "left at the post" in South Bend. That's the home of foot- ball and you may remember, Neal. what a licking the Notre Dame outfit gave Princeton one year and then what a licking Princeton gave Harvard. Incidentally, my idea of a pleasant evening out would be to attend a debate between Neal O'Hara and "Bugs" Baer. And a third evening of depravity took place at the home of T. Roy Barnes (they call him Tom now instead of Roy) and his wife, Bessie Crawford. If one's soul may bo lost through the enjoyment of a simple home-cooked meal, prepared by the hands of Bessie, and later some music by Roy, Bessie and Nellie Nichols, and then home by 10, I have forfeited my chance of salvation. Another Broadway pair out here to whom Lady Fortune Is being very polite are Zelda Sears and Lew Wiswell, her husband. They are happy in their bungalow and also in their work. Zelda has been exceedingly successful In writing for the movies, six out of seven scripts having al- ready been screened, and the Metropolitan Studios have exercised their or.tlon on her services and renewed her contract. Mr. Wiswell expects to produce a show here soon and will, very prob- ably, house It at Ed Smith s "El Capltan" theatre in Hollywood. "The King of Kings," Cecil de Mllle's new super-special, is arousing more Interest and comment and speculation out here than any other picture made in the last year. What it is expected to do may be gauged from the fact that John C. Fllnn. usually the most conservative of men, gives three cheers whenever he speaks of It. As for the publicity possibilities of a religious picture, such as this, they are boundless. But I have found one angle that Barrett Keisling, the press agent, is NOT going to play up. The story is of the Christ. But it was directed by Cecil de Mille, u Christian Scientist, and Its Western premiere will be in a theatre, owned by Sid Grauman, a Jew, and the name of which is "The Chinese Theatre." All riijht, Barrett—I won't do it again. but of the constitutional right In the circumstances of this case to exact exorbitant profits beyond reasonable prices. ... • "Nor Is the exercise of the power less reasonable because the Interests protected are in some degree less essential to life than some others. Laws against monopoly, which aim at the same evil and accomplish their end by Interference with private rights quite as much as tho pres- ent law, are not regarded as arbitrary or unreasonable or unconstitu- tional because they are not limited to ihe| r application to dealings In the bare necessities of life. "The problem SOUghI to be dealt with has been ths subject of earlier legislation in New York and lias engaged the attention of the legislators of other states. That it is one Involving serious Injustice to great num- bers of individuals who are pown less to protect themselves cannot he questioned. Its solution turns upon considerations of economics, about which there may be reasonable differences of opinion. Choice between these views takes Ua train the judicial to the legislative field. Tho Judicial function ends when it Is determined that there is basis for legislative action In a fleM not withheld from legislative power by the Constitution, as interpreted by the derisions of this Court, • Holding these views I in li ve the judgment b- tow should bt affirmed.' Justices Holmes an