Omaha daily bee., 1906-02-11

ADVERTISED amusenents for
IA Omaha indicate a revival In ac-
|A uvity that will be gladly well
tW%2W coined by the local public. The
recent experience has not been
such as pleased either manager or patron.
but the promised break is now apparently
In sight, and the usual spring offerings
VIII be good. The last week at the theaters
was much the same as has been expe-
rienoed during the year to date. The COM
pany that played "Parsifal" in the form
OF drama at the Boyd suffered from the
suspicion that naturally attached to its
coming in such form. After seeing the
sacred drama in its operatic form, by the
greatest OF artists, the public was not bent
a great deal on giving it's countenance to
dramatic performance OF the same story,
particularly when not a name connected
with the affair was locally known. AS a
result the business was of the starvation
order but those who did venture to the
theater during the engagement were de-
lightfully surprised. The drama is we'll
prepared and proved most interesting In
every regard, while the company is a very
well balanced and capable organization.
Mr. Gilmore and his company late In the
week received the usual reception, for the
star is a popular favorite here, with an
ever-increasing circle Of admirers, and his
play is one that attracts. The Krug had
one OF the best offerings of the season,
Sherlock Holiness" with Enroll Dunbar
and good company presenting the play,
and its business was correspondingly en-
couraging. The Burwood did the business
that has become habitual with that theater
and the Orpheum had a fine week at the
box ofice with one of the best bills of the
season on the boards.
James S. Metcalfe, the dramatic critic
for Life, who is suing to establish his right
to be entertained at the New York theaters.
has won victory that promises to go
straight to the root of the Theatrical trust
controversy. Justice Fitzgerald of the New
York supreme court in passing on the appll-
cation of one Burnham for writ of habeas
corpus. has denied the writ and remanded
Burnham for further proceedings. The
court holds that while a theatrical manager
may refuse to sell a ticket for admission to
any person, and is not required to admit
any one he deems Objectionable, that an as
ISOLATION Of managers may not agree among
themselves to discriminate against any one.
AT first blush 1t appears that the learned
Judge in swinging to avoid one horn of a
dilemma has impaled himself on the other
To deny the right of association for mutual
always been conceded established. If
men may do certain things as individuals
1t does not appear reasonable that they are
to be denied the right to do the same things
as an association Again, If the act is I'M
lawful for an association to do, It must
surely be equally forbidden to an Individual
This conclusion is Inaccurate since it has
been held a sound doctrine of law that
what Is permissible in an individual be-
comes conspiracy when it is the action of
an association of individuals. The law Of
conspiracy clearly comprehends the offense
of which the New York managers are
guilty, and it is not all improbable that
the present inquiry will result in a radical
change in their attitude towards the pub
lie. the critics and their business rivals
The language of Judge Fitzgerald in pass
Ing on the application was as follows:
Their resentment may or may not be well
founded, but that is immaterial. 1t cannot
be held that dramatic criticism is Of itself
unlawful. and while It may be that critics
In some instances transcend legal bounds
the law in such cases affords ample reme-
dies against writer's and publishers.
1t Is claimed that the combination of man.
ayers. in this instance practically controls
cret of their conduct is to deprive the COM
piainant of the opportunity of pursuing
lies in the agreement, and the collective
rights OF the parties thereto cannot be
measured Dy the nature OF their Individual
rights In respect to individual acts
1t Is true that a theatrical manager owes
no duty to the public to give performances,
paid In advance for seats, he incurs no liza
pility should he see Mt to discontinue for
time or altogether abandon performances
to sell tickets to some applicants, while
freely disposing OF them to others, pro-
count Of race, color, etc. but, conceding
him all these rights. they cannot be held
to excuse agreements between a number
OF managers to the prejudice of an indi-
vidual or a class Of individuals.
There are unquestionably many purposes
for which persons engaged in the same
general line of affairs may lawfully COM
bine, but when the purpose of the COM
prejudicially, the interests of others, then
acts which may be within lawful bounds
when done by an individual become crimi-
nal II done In pursuance of a common
agreement by a number of individuals
f1nus 1t has been held that a spectator
may lawfully hiss an actor, but that 1t Is
otherwise II several persons go to a per-
tormance with common understanding
for such a purpose
II is as much conspiracy to agree TO do
lawful acts by unlawful means as 1t is to
agree to do unlawful acts, and, tested by
the character of the act contemplated, the
agreement becomes often of itself the un-
lawful means.
The possession Of a ticket is evidence to
rights and. obligations between its holder
ana the manager of a theater and an
OF 10 ignore ana
repudiate such contract, and TO deprive
the holder of his right to occupy seat
and witness the performances, without
showing any breach of condition on his
part. may constitute an actionable wrong
-
II has been pretty we'll established dur
ing the last year two that the opera
tions OF the so-called syndicate" or trust
of theaters has been subversive OF the
idea on which 1t was based. Originally
conceived to be OF assistance to the men
who had their money invested in theaters
or amusement enterprises, It has reached
point where It's efforts are directed to a
dominating control of the theater in every
aspect. Managers who do not subscribe
to the doctrine of the trusts find no
houses in which to exhibit their companies;
houses that are not willing to pay the
tribute cannot get attractions controlled
by the trust land very recent experience
OF western managers has well-nigh con-