Though the song he and librarian Carrie Westlake Whitney would write—“A Christmas Greeting to Kansas City Children”—was still nearly two years away, Carl Busch had established himself by 1908 as a world-famous composer. Along with works inspired by Native American music, he had composed many pieces that fell into the sacred music category. On February 16, 1908, he conducted a concert at the Willis Wood Theater that included, among other pieces, some of his sacred compositions.
When the curtain rose at 8:30 p.m., Busch took the stage and stepped to the very front. He had become well known in Kansas City's arts community, and the performance that night was the latest in a series of popular Sunday evening concerts under his baton. As the conductor appeared, a round of applause began. Busch bowed and motioned for the clapping to stop.
When it died down, he said, “I wish to announce that following the first number, we will have a short intermission, long enough to allow the marshal to take the names of the musicians.”
They, and he, were in violation of Missouri’s Sunday Blue Laws, as interpreted by local judge William H. Wallace.
Several in the audience started clapping again until an understanding of Busch’s pronouncement caught up with their hands. At this point, whispered murmurings swept through the auditorium and grew to a crescendo.
Busch took the podium, raised his baton, and the orchestra started playing the first piece. In the wings, Deputy Marshall H.B. Phillips asked the theater’s watchman to lower the curtain when the piece was over. The watchman smiled and declined, saying he didn't want to be accused of working on a Sunday.
When the piece ended, Busch walked to the wings and suggested to the deputy that it probably made more sense to wait until the scheduled intermission. Phillips decided to wait. Busch tried to point out that much of the music was sacred, as the Sunday laws allowed, but Phillips said he was carrying out orders from the grand jury.
When the intermission came, the musicians remained onstage and Phillips went to each, writing down their names—a total of 36 including his own. He started with violinists and ended with drummers, an exercise that was not completed without humor. One of the clarinetists played a snatch from the old hymn “There’s a Land That Is Fairer than This.” A violinist did a pizzicato version of “Rogue’s March,” the tune traditionally played when a soldier was drummed out of the army. Both extemporaneous solos caused a fair amount of laughter.
There were also soft hisses from the audience and one-word whispers: “Wallace!”
At the end of the concert, Busch apologized to the audience, saying the interruption was an outrage and embarrassment to the musicians.
Wallace had been appointed judge of the Kansas City criminal court by Missouri Gov. Joseph Folk. A former county prosecutor, he was best known to that point for his assiduous prosecution of the James Gang. When Wallace took the bench, it was assumed that he would work to clean up Kansas City.
One of the focal points of his court was strict enforcement of the state’s Sunday laws. Originally enacted by our Puritan forebears, the so-called Blue Laws forbade the transaction of any sort of business or entertainment on Sundays except for things like medical care and other urgent, unforeseen needs. Missouri’s statutes had been passed half a century earlier, before the Civil War.
Some affected businesses—along with a number of attorneys—pushed back against Wallace’s rulings. Those that sold cigars and ran theatres were especially roused as Sundays were highly profitable for them. Some 2,000 members of Wallace’s own Democratic Party had spoken against him the preceding autumn. He even ran into a conundrum concerning a religious play scheduled on Sunday by a Jewish congregation. (He reluctantly allowed it.)
Theater owners, in particular, were targeted by a grand jury convened by Wallace. Several had been arrested in the weeks leading up to the concert, and their lawyers frequently obtained writs of habeas corpus to get them out of jail. Wallace was angry with the circuit court for issuing the writs, saying that if it continued he would “have nothing left to do except to try damage suits.” In April, he transferred all theater cases to the court of Judge Edward Porterfield. Prosecutor I. B. Kimbrell dropped more than 3,000 of them.
The arguing went on through most of the year. Wallace seemed at one point to be aiming at running for higher office, but negative reaction to his rulings outweighed his positives.
It should be noted that Wallace also prosecuted a rash of forgery cases and enforced the gun laws in Kansas City. His adherence to the Sunday laws assured regular laborers one day off each week.
Near the end of 1908, Wallace sent his resignation to the governor and tried to squeeze all his outstanding cases into his last days. He resigned on December 13, and Judge Ralph Latshaw took over, indicating that in the ensuing days he might simply dismiss all the outstanding cases.
And Carl Busch?
Back on February 22, six days after the recording of the names, the grand jury crossed up Wallace and chose not to indict Busch and the musicians—as long as they didn’t give any more Sunday performances.
The jury told Busch that his music was not sacred enough.