such statute repugnant to U. S. Const., 14th | advertisement, a representation of the flag Amend., as denying the equal protection of of the United States. It expressly excepted, the laws. however, from its operation any newspaper, periodical, book, etc., on which should be printed, painted, or placed a representation

Submitted January 23, 1907. Decided March of the flag "disconnected from any adver

The plaintiffs in error were proceeded against by criminal information upon the charge of having, in violation of the statute, unlawfully exposed to public view, sold, exposed for sale, and had in their possession for sale, a bottle of beer upon which, for purposes of advertisement, was printed and See same case below (Neb.) 105 N. W. painted a representation of the flag of the 298. United States.

The facts are stated in the opinion.
The defendants pleaded not guilty, and at
Mr. Sylvester R. Rush for plaintiffs in the trial insisted that the statute in ques-
tion was null and void, as infringing their
Mr. Norris Brown for defendant in error. personal liberty guaranteed by the 14th

judgments were affirmed by the supreme | ess of law, and as taking private property court of Nebraska, and the case has been for public use without just compensation. brought here upon the ground that the final order in that court deprived the defendants, respectively, of rights specially set up and claimed under the Constitution of the United States.

In our consideration of the questions presented we must not overlook certain principles of constitutional construction, long ago established and steadily adhered to, which preclude a judicial tribunal from It may be well at the outset to say that holding a legislative enactment, Federal or Congress has established no regulation as to State, unconstitutional and void, unless it the use of the flag, except that in the act be manifestly so. Another vital principle is approved February 20th, 1905, authorizing that, except as restrained by its own fundathe registration of trademarks in commerce mental law, or by the supreme law of the with foreign nations and among the states, land, a state possesses all legislative power it was provided that no mark shall be re- consistent with a republican form of govfused as a trademark on account of its na- ernment; therefore each state, when not ture "unless such mark consists of thus restrained, and so far as this court is or comprises the flag or coat of arms or concerned, may, by legislation, provide not other insignia of the United States, or any only for the health, morals, and safety of simulation thereof, or of any state or mu- its people, but for the common good, as innicipality, or of any foreign nation." 33 volved in the well-being, peace, happiness, Stat. at L. 724, § 5, chap. 592, U. S. Comp. and prosperity of the people. Stat. Supp. 1905, p. 670.

Guided by these principles, it would seem difficult to hold that the statute of Nebras. ka, in forbidding the use of the flag of the United States for purposes of mere advertisement, infringes any right protected by the Constitution of the United States, or that it relates to a subject exclusively committed to the national government. From the earliest periods in the history of the human race, banners, standards, and ensigns have been adopted as symbols of the power and history of the peoples who bore them. It is not, then, remarkable that the American people, acting through the legislative branch of the government, early in their history, prescribed a flag as symbolical of the existence and sovereignty of the nation. Indeed, it would have been extraordinary if the government had started this country upon its marvelous career without giving it a flag to be recognized as the emblem of the American Republic. For that flag every true American has not simply an appreciation, but a deep affection. No American, nor any foreign-born person who enjoys the privileges of American citizenship, ever looks upon it without taking pride in the fact that he lives under this free government. Hence, it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence

The importance of the questions of constitutional law thus raised will be recognized when it is remembered that more than half of the states of the Union have enacted statutest substantially similar, in their general scope, to the Nebraska statute. That fact is one of such significance as to require us to pause before reaching the conclusion that a majority of the states have, in their legislation, violated the Constitution of the United States. Our attention is called to two cases in which the constitutionality of such an enactment has been denied, Ruhstrat v. People, 185 Ill. 133, 49 L.R.A. 181, 76 Am. St. Rep. 30, 57 N. E. 41; People ex rel, McPike v. Van De Carr, 178 N. Y. 425, 66 L.R.A. 189, 102 Am. St. Rep. 516, 70 N. E. 965. In the Illinois case the statute was held to be unconstitutional as depriving a citizen of the United States of the right of exercising a privilege impliedly, if not expressly, granted by the Federal Constitution, as unduly discriminating and partial in its character, and as infringing the personal liberty guaranteed by the state and Federal Constitutions. In the other case, decided by the court of appeals of New York, the statute, in its application to articles manufactured and in existence when it went into operation, was held to be in viola-of those who revere it, have often been retion of the Federal Constitution, as depriving the owner of property without due proc

Ariz., Rev. Stat. 1901, p. 1295; Colo., 3 | Mills's Anno. Stat., Rev. Supp. 1891-1905, p. 542; Conn., Gen. Stat. 1902, p. 387; Cal-, Stat. 1899, p. 46; Del., 22 Sess. Laws, p. 982; Hawaii, Sess. Laws 1905, p. 20; Idaho, Sess. Laws 1905, p. 328; Ill., Sess. Laws 1899, p. 234; Ind., Acts 1901, p. 351; Kan., Gen. Stat. 1905, § 2442, p. 499; Me., Rev. Stat. 1903, p. 911; Md., Laws 1902, p. 720; Mass., 2 Rev. Laws 1902, p. 1742; Mich., Pub. Acts 1901, p.

sented and sometimes punished on the spot. It may be said that, as the flag is an em139; Minn., Rev. Laws 1905, § 5180; Mo., 2 Anno. Stat. 1906, § 2352; Mont., Laws 1905, p. 143; N. H., Pub. Stat. 1901, p. 810; N. J., Laws 1904, p. 34; N. M., Laws 1903, p. 121; N. Y., Laws 1905, vol. 1, p. 973; N. Dak., Laws 1901, p. 103; Ohio, Laws 1902, p. 305; Or., Gen. Laws 1901, p. 286; R. I., Sess. Acts Jan. & Dec. 1902, p. 65; Utah, Laws 1903, p. 29; Vt., Laws 1898, p. 93; Wis., Laws 1901, p. 173; Wyo., Laws 1905, p. 86.

Looking, then, at the provision relating to the placing of representations of the flag upon articles of merchandise for purposes of advertising, we are of opinion that those who enacted the statute knew, what is known of all, that to every true American the flag is the symbol of the nation's power,

the emblem of freedom in its truest, best sense. It is not extravagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression. As the statute in question evidently had its origin in a purpose to cultivate a feeling of patriotism among the people of Nebraska, we are unwilling to adjudge that in legislation for that purpose the state erred in duty or has infringed the constitutional right of anyone. On the contrary, it may reasonably be affirmed that a duty rests upon each state in every legal way to encourage its people to love the Union with which the state is indissolubly connected.

blem of national sovereignty, it was for | vidual-has been placed on such thing in Congress alone, by appropriate legislation, violation of law, and subject to the power to prohibit its use for illegitimate purposes. of government to prohibit its use for purWe cannot yield to this view. If Congress poses of advertisement. has not chosen to legislate on this subject, and if an enactment by it would supersede state laws of like character, it does not follow that, in the absence of national legislation, the state is without power to act. There are matters which, by legislation, may be brought within the exclusive control of the general government, but over which, in the absence of national legislation, the state may exert some control in the interest of its own people. For instance, it is well established that, in the absence of legislation by Congress, a state may, by different methods, improve and protect the navigation of a water way of the United States, wholly within the boundary of such state. So, a state may exert its power to strengthen the bonds of the Union, and therefore, to that end, may encourage patriotism and love of country among its people. When, by its legislation, the state encourages a feeling of patriotism towards the nation, it necessarily encourages a like feeling towards the state. One who loves the Union will love the state in which he resides, and love both of the common country and of the state will diminish in proportion as respect for the flag is weakened. Therefore a state will be wanting in care for the well-being of its people if it ignores the fact that they regard the flag as a symbol of their country's power and prestige, and will be impatient if any open disrespect is shown towards it. By the statute in question the state has in substance declared that no one subject to its jurisdiction shall use the flag for purposes of trade and traffic,-a purpose wholly foreign to that for which it was provided by the nation. Such a use tends to degrade and cheapen the flag in the estimation of the people, as well as to defeat the object It is well settled that, when prescribing of maintaining it as an emblem of national a rule of conduct for persons or corporapower and national honor. And we cannot tions, a state may, consistently with the hold that any privilege of American citizen- 14th Amendment, make a classification ship or that any right of personal liberty is among its people based "upon some reasonviolated by a state enactment forbidding the able ground,-some difference which bears a flag to be used as an advertisement on a just and proper relation to the attempted bottle of beer. It is familiar law that even classification, and is not a mere arbitrary the privileges of citizenship and the rights selection." Gulf, C. & S. F. R. Co. v. Ellis, inhering in personal liberty are subject, 165 U. S. 150, 159, 160, 165, 41 L. ed. 666, in their enjoyment, to such reasonable re- 669, 670, 671, 17 Sup. Ct. Rep. 255. In Cotstraints as may be required for the general ting v. Kansas City Stock Yards Co. (Cotgood. Nor can we hold that anyone has a ting v. Godard) 183 U. S. 79, 46 L. ed. 92, right of property which is violated by such 22 Sup. Ct. Rep. 30, there was a difference an enactment as the one in question. If it of opinion in the court as to what was necbe said that there is a right of property in essary to be decided, but all agreed that a the tangible thing upon which a representa- state enactment regulating the charges of tion of the flag has been placed, the answer a certain stock-yards company, and which is that such representation-which, in it- exempted other like companies from its opself, cannot belong, as property, to an indi-eration, was a denial of the equal protection

Another contention of the defendants is that the statute is unconstitutional in that, while applying to representations of the flag placed upon articles of merchandise for purposes of advertisement, it does not apply to a newspaper, periodical, book, pamphlet, etc., on any of which shall be printed, painted, or placed, the representation of the flag, disconnected from any advertisement. These exceptions, it is insisted, make an arbitrary classification of persons, which, in legal effect, denies to one class the equal protection of the laws.

of the laws, and forbidden by the 14th | ment. It is easy to be seen how a represenAmendment. In Connolly v. Union Sewer tation of the flag may be wholly disPipe Co. 184 U. S. 540, 552, 562-564, 46 L. connected from an advertisement, and be ed. 679, 686, 691, 692, 22 Sup. Ct. Rep. 431, used upon a newspaper, periodical, book, 436, 440, 441, the question arose as to the etc., in such way as not to arouse a feeling validity, under the equality clause of the of indignation nor offend the sentiments and Constitution, of a statute of Illinois, forbid- feelings of those who reverence it. In any ding, under penalty, the existence of com- event, the classification made by the state binations of capital, skill, or acts for certain cannot be regarded as unreasonable or ar specified purposes, but exempting from its bitrary, or as bringing the statute under operation agricultural products or live stock condemnation as denying the equal protecwhile in the hands of the producer. By reaBy rea- tion of the laws. son of this exemption the statute was adjudged to operate as a denial of the equal protection of the laws, and was, therefore, void. The court observed that such a statute was not a legitimate exertion of the power of classification, rested upon no reasonable basis, was purely arbitrary and therefore denied the equal protection of the laws to those against whom it discriminated. It said: "We conclude this part of the discussion by saying that to declare that some of the class engaged in domestic trade or commerce shall be deemed criminals if they violate the regulations prescribed by the state for the purpose of protecting the public against illegal combinations formed to destroy competition and to control prices, and that others of the same class shall not be bound to regard those regulations, but may combine their capital, skill, or acts to destroy competition and to control prices for their special benefit, is so manifestly a denial of the equal protection of the laws that further or extended argument to establish that position would seem to be unnecessary."

It would be going very far to say that the statute in question had no reasonable connection with the common good and was not promotive of the peace, order, and wellbeing of the people. Before this court can hold the statute void it must say that, and, in addition, adjudge that it violates rights secured by the Constitution of the United States. It States. We cannot so say and cannot so adjudge.

The present case is distinguishable from the Connolly Case. The classification there involved was of persons alike engaged in domestic trade, which trade, the court said, was, of right, "open to all, subject to such regulations, applicable alike to all in like conditions, as the state may legally prescribe." Now, no one can be said to have the right, secured by the Constitution, to use the country's flag merely for purposes of advertising articles of merchandise. If everyone was entitled of right to use it for such purposes, then, perhaps, the state could not discriminate among those who so used it. It was for the state of Nebraska to say how far it would go by way of legislation for the protection of the flag against improper use,-taking care, in such legislation, not to make undue discrimination against a part of its people. It chose not to forbid the use of the flag for the exceptional purposes specified in the statute, prescribing the fundamental condition that its use for any of those purposes should be "disconnected from any advertisement." All are alike forbidden to use the flag as an advertise

Without further discussion, we hold that the provision against the use of representations of the flag for advertising articles of merchandise is not repugnant to the Constitution of the United States. It follows that the judgment of the state court must be affirmed.

It is so ordered.

Mr. Justice Peckham dissented.

UNITED STATES Ex Relatione WILLIS
C. WEST, Plff. in Err.,

V.

ETHAN A. HITCHCOCK.
Indians-adoption into tribe-control by
Department of the Interior.

1. A regulation of the Department of the Interior that the adoption of a person into an Indian tribe must be approved by the Indian Office to be valid can hardly be said to be beyond the power of that Department to adopt, in view of the provision of U. S. Rev. Stat. § 463, U. S. Comp. Stat. 1901, p. 262, that the "Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs, and of all matters arising out

of the Indian relations."
Mandamus-to Secretary

Indian allotments.

of
of Interior-

2. The Secretary of the Interior will not be compelled by mandamus to approve the relator's selection, as an adopted member of the Wichita tribe, or certain lands out of those ceded to the United States by the Wichita and affiliated bands of Indians, under the agreement of June 4, 1891, ratified by the act of March 2, 1895 (28 Stat. at L. 876, 895-897, chap. 188), where the Secretary's answer, though not in terms denying the averments of the pe

Argued January 30, 1907. Decided March respondent and the petition dismissed. The

judgment was affirmed on appeal (26 App. D. C. 290), and then the case was brought N ERROR to the Court of Appeals of the to this court. The issues here are those District of Columbia to review a judg- raised by the plea, the demurrer to the anment which affirmed a judgment of the Su-swer, and the motion for a peremptory writ. preme Court of the District, denying mandamus to require the Secretary of the Interior to approve the selection by the relator, as an adopted member of the Wichita tribe, of 160 acres of land out of the lands ceded to the United States by those Indians. Affirmed.