H.B. Marienelli, Limited, v. United Booking Offices of America

• Citation: 227 F. 165
• Parties: H. B. MARIENELLI, Limited, v. UNITED BOOKING OFFICES OF AMERICA et al.
• Decision Date: 31 July 1914
• Court: U.S. District Court — Southern District of New York

227 F. 165

H. B. MARIENELLI, Limited, v. UNITED BOOKING OFFICES OF AMERICA et al.

United States District Court, S.D. New York.

July 31, 1914

This is a demurrer to a complaint at law for damages under the Sherman Act. Its general outline is as follows: The individual defendants collectively own many vaudeville theaters scattered over the United States, which are roughly, arranged in two circuits-- an Eastern circuit comprising those owned by one set of the defendants, and with other theaters known as the 'Keith circuit,' and a Western circuit, comprising those owned by other defendants and with other theaters known as the 'Orpheum circuit.' The owners of the other theaters making up these two circuits are not parties to the action. The entertainments in these theaters are each made up of short disconnected acts, aggregating altogether two or three hours. The performers play at a given place not over one week at a time, and the practice is for them to be booked under one contract upon the whole or part of one circuit, making contracts which require them to pass from theater to theater and from state to state, taking with them certain paraphernalia and stage properties. The two corporate defendants are severally booking agents for the two circuits, securing performers to travel upon the whole or part of each circuit and in general acting as agents for the managers or owners.

Up to the time of the acts here in question the plaintiff maintained offices in London, Paris, Berlin, and New York, from which it observed and sought out all promising vaudeville performers, and advised the defendants when it knew of them, thus establishing a kind of clearing house of information between performers and managers. If opportunity offered, it induced performers to come to this country from other countries, and acted as their agent in procuring for them contracts to perform on one or both of the circuits through the whole or a part of the theaters comprised in it. It arranged for the performer's entrance into the country, passing through the customs his paraphernalia, apparatus, etc., and it advised and helped him to carry them about with him. In general, the plaintiff acted as agent for the performers and as their personal representative in negotiations and contracts with the managers of the theaters, acting through the corporate defendants.

All the defendants entered into a combination or conspiracy in restraint of their own business, to be accomplished as follows: The Eastern owners were not to employ any one not booked through the Eastern booking corporation, which was not to act for any theater which employed another booking agent. They were to procure the assent of the other theaters in the Keith circuit to this plan. They agreed to employ no performer who played outside of the two circuits, and would blacklist any such and post him with the other theaters; the Eastern booking corporation refusing to act for any theater that disregarded the blacklist. No one should be employed who had as a representative any person who had obtained employment for a performer outside of the two circuits, and if any theater employed a performer who had such a representative the Eastern booking corporation should not act for that theater. All such representatives of performers should be blacklisted, and might not thereafter negotiate with the Eastern booking corporation, which would not act as agent for any theater who billed a performer represented by a blacklisted agent. Any theater billing a blacklisted performer should be blacklisted, and the Eastern booking corporation would no longer act for it. The Western booking corporation should be advised of these blacklists.

Similar allegations were made relating to the Western circuit. The defendants in pursuance of this plan did blacklist the plaintiff, and caused notices to be sent out to that effect, and so entirely destroyed the plaintiff's business.

Henry A. Wise, of New York City, for plaintiff.

George W. Wickersham, of New York City, for defendants.

LEARNED HAND, District Judge.

The combination or conspiracy is alleged to be in restraint of the defendants' business, and the first inquiry must be of the nature of the business. Undeniably certain aspects of the business are interstate commerce, as, for instance, the contracts made by the booking companies under which the performers must go from state to state, throughout the circuit, acting here and there, and fulfilling their contracts as much by the travel as by the acting. Since Hoke v. United States, 227 U.S. 308, 33 Sup.Ct. 281, 57 L.Ed. 523, 43 L.R.A. (N.S.) 906, Ann. Cas. 1913E, 905, and Wilson v. United States, 232 U.S. 563, 34 Sup.Ct 347, 58 L.Ed. 728, it cannot be doubted that this feature of the business was within the complete powers of Congress, for such purposes as it might find to the public interest. This, moreover, applies as well to that feature, incidental to the foregoing, which consists in the carriage of the performers' stage properties and paraphernalia from one state to another, a necessary part of the performance of their contracts with the defendants. The Lottery Cases, 188 U.S. 321, 23 Sup.Ct. 321, 47 L.Ed. 492. The same may be said of the scenery and advertising matter sent from state to state by the theaters themselves. In respect of all these details the business, therefore, consists of interstate commerce.

The nature of the defendants' business is one thing, determinative in cases where the question arises of a state license tax or the like; the subject-matter of their combination is, at least formally, different. Perhaps the distinction has small practical consequence here, yet it is important in such shifty questions to keep the principles in mind. No doubt the proposition still stands good that the restraint of interstate commerce must be direct (United States v. Patten, 226 U.S. 543, 33 Sup.Ct. 141, 57 L.Ed. 333, 44 L.R.A. (N.S.) 325), just as it did when E. C. knight v. United States, 156 U.S. 1, 15 Sup.Ct. 249, 39 L.Ed. 325, was decided; but nobody can intelligently read the decisions without becoming aware that the actual meaning of the words has greatly changed. All the cases, of course, presuppose that the contract has an effect upon the transit of some goods or persons across state lines, but just what that effect must be is the point of divergence. From some expressions of the earlier cases it might be supposed that the agreement must in its terms concern the transit, or in other words that the conscious purpose of the parties must be to change movement, which would otherwise occur; but that rule is not now the law. Since perhaps Addyston Pipe Co. v. United States, 175 U.S. 211, 20 Sup.Ct. 96, 44 L.Ed. 136, and certainly since United States v. Patten, supra, a case which had an unusual degree of consideration by the Supreme Court, it must be understood that the combination must be judged by the usual rule of legal responsibility; that is to say, whether the effect upon the movement of goods or persons is within those consequences which would reasonably be supposed to result from the parties' acts.

The words 'direct' and 'indirect' permit of some latitude, as the cases show. In nature all results are equally inevitable, and the category has no useful application; it would be arbitrary and meaningless. Only when we speak of conscious persons, necessarily ignorant of all the causes which actually operate, can the distinction become useful; and it is, of course, only in relation to persons that it is used juristically. As I have said, the rule no longer is that only those results are direct which fall within the immediate purpose, or high light of intention, a rule which would eliminate consequences, certain enough...