New-York tribune., 1907-06-20
STAGE" NOT A TRADE
NO THEATRICAL TRUST.
Judge Rosalshty Says Kla1c s Err
LANCER Can't Be REGULATED.

A theatre and coal mine, or an association
of theatre managers and an association of coal
mine operators, are thing apart, even in the
law. This is the gist of the contention of Judge
Rosalsky, and on this basis he handed down an
opinion yesterday which has the effect of dis
missing the indictments found by the grand
jury against Messrs. Klaw & Eranger as alleged
members of theatrical trust" called, or
combination to regulate prices. The decision
contends that theatrical performances and plays
do not come under the legal head Of trade and
commerce, and that, therefore. they cannot be
regulated under Section No. 16S OF the Penal
CODE which was aimed at, and which has the
eHect OF preventing. Illegal combinations OF capi-
taI In the ordinary course of business.
haW IL Erlanger were the only members OF
the so-ealled syndicate against which indict-
nehts had been returned Other well known
managers and producers associated with them
are, Of course, included in the decision. Mr..
Lauterbach, attorney for Klaw & Erlanger said
that the prosecutions were brought out of spite
the part of David Belasco and Lee Shubert
who were opposed to the association of
ayers. Mr. Shubert has since found IL con-
venient to join hands with Messrs. Klaw and
Erlanger but Mr.. Beasco still maintains his
opposition to the methods of the so-called
trust" Mr.. Belasco had nothing to say yester-
day concerning the decision, not even word
to the propriety of the courts drawing line
between coal and iron corporation and an as
the decision reads:
The testimony given before the grand Jury clearly
shows that, instead OF Belasco and Shubert being
prevented from exercising lawful trade or calling
they. the contrary. able to own. lease and
control theatres and produce plays, and that Shu-
bert also conducted a booking agency.
1t charged against the defendants that
they had unawfuly created and maintained
a monopoly and engaged TO prevent others by
force, threats and intimidation from exercising
a lawful trade" and that they had made
obnoxious agreement in restraint of trade and
commerce. on this point the decision says:
The defendants engaged IN private busi-
ness. and hence were not obliged 10 aid business
rival by permitting him to their private prem
ises. They had the undoubted right 70 book. or
refuse to book. any production that they fit.
and to maintain or close any OF their theatres at
their option.
There motive the part OF the defend
ants 20 injure Beasco. Shubert or any other per-
son; their motive was to promote their busi-
and TO refuse to do business with persons
who should produce attractions with their rivals
In the light OF the photographers definition OF
trade, commerce. plays and theatres. and OF the
decisions quoted IL seems to me that plays and
entertainments of the stage not articles use
full commodities Of common use; that leasing and
controlling theatres and producing plays therein Is
not trade, and that therefore, the defendants did
not commit acts injurious to trade or commerce
II IS worthy of note that In cases involving
the legality of their acts this theatrical firm
has invariably been upheld by the courts. In
the matter of their right exclude James Met
calfe, editor of Life from their theatres the
Court of Appeals sustained them, the decision
being that a manager has a right to exclude
any person Objectionable TO him. In the mat
ter OF the suit of David Belasco they prevailed.
and in the case of Brooks against BelascO JUS
tice Fitzgerald upheld Brooks's contention. In
the John Doe proceedings by which II was
hoped 10 open the books of Klaw & Erlanger
and others the prosecution was defeated in
sweeping decisions of the Court OF Appeals.