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4, 1907.

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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 [No. 174.)

printed, painted, or placed a representation Submitted January 23, 1907. Decided March of the flag “disconnected from any adver

tisement.” 1 Cobbey's Anno. Stat. (Neb.)

1903, chap. 139. N ERROR to the Supreme Court of the The plaintiffs in error were proceeded

State of Nebraska to review a judgment against by criminal information upon the which affirmed a conviction in the District charge of having, in violation of the statCourt of Douglas County, in that state, of ute, unlawfully exposed to public view, sold, using representations of the national flag exposed for sale, and had in their possession upon articles of merchandise' for advertising for sale, a bottle of beer upon which, for purposes. Affirmed.

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 queserror.

tion was null and void, as infringing their Mr. Norris Brown for defendant in error. personal liberty guaranteed by the 14th

Amendment of the Constitution of the Mr. Justice Harlan delivered the opinion United States, and depriving them, as citiof the court:

zens of the United States, of the right of This case involves the validity, under the exercising a privilege impliedly, if not ex. Constitution of the United States, of an act pressly, guaranteed by the Federal Constiof the state of Nebraska, approved April 8, tution; also, that the statute was invalid in 1903, entitled "An Act to Prevent and Pun- that it permitted the use of the flag by pubish the Desecration of the Flag of the lishers, newspapers, books, periodicals, etc., United States."

under certain circumstances, thus, it was al. The act, among other things, makes it a leged, discriminating in favor of one class misdemeanor, punishable by fine or impris- and against others. These contentions were onment, or both, for anyone to sell, expose overruled, and the defendants, having been for sale, or have in possession for sale, any found guilty by a jury, were severally adarticle of merchandise upon which shall judged to pay a fine of $50 and the costs have been printed or placed, for purposes of of the prosecution. Upon writ of error the

f"$_2375g. Any person who, in any man-, imprisonment for not more than thirty ner, for exhibition or display, shall place, days, or both, in the discretion of the court. or cause to be placed, any word, figure, $ 2375h. The words flag, color, ensign, as mark, picture, design, drawing, or any ad- used in this act, shall include any flag, vertisement of any nature, upon any flag, standard, ensign, or any picture or represenstandard, color, or ensign of the United tation, or either thereof, made of any subStates of America, or shall expose or cause stance, or represented on any substance, to be exposed to public view any such flag, and of any size, evidently purporting to be, standard, color, or ensign, upon which shall either of said flag, standard, color, or ensign, be printed, painted, or otherwise placed, or of the United States of America, or a pic. to which shall be attached, appended, af- ture or a representation of either thereof, fixed, or annexed, any word, figure, mark, upon which shall be shown the colors, the picture, design, or drawing, or any adver- stars, and the stripes, in any number of tisement of any nature, or who shall expose either thereof, or by which the person seeing to public view, manufacture, sell, expose for the same, without deliberation, may believe sale, give away, or have in possession for the same to represent the flag, color, stand. sale, or to give away, or for use for any ard, or ensign of the United States of purpose, any article or substance, being an America. article of merchandise or a receptacle of "S 2375i. This act shall not apply to any merchandise, upon which shall have been act permitted by the statutes of the United printed, painted, attached, or otherwise States of America, or by the United States placed, a representation of any such flag, Army and Navy regulations, nor shall it be standard, color, or ensign, to advertise, call construed to apply to a newspaper, periattention to, decorate, mark, or distinguish, odical, book, pamphlet, circular, certificate, the article, or substance on which so placed, diploma, warrant, or commission of appointor who shall publicly mutilate, deface, de ment to office, ornamental picture, article of file, or defy, trample upon or cast contempt, jewelry, or stationery for use in correeither by words or act, upon any such flag, spondence, on any of which shall be printed, standard, color, or ensign, shall be deemed painted, or placed, said flag, disconnected guilty of a misdemeanor, and shall be from any advertisement.” i Cobbey's Anno. punished by a fine not exceeding $100, or by Stat. (Neb.) 1903, chap. 139.

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 In our consideration of the questions preorder in that court deprived the defendants, sented we must not overlook certain prin. respectively, of rights specially set up and ciples of constitutional construction, long claimed under the Constitution of the United ago established and steadily adhered to, States.

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 The importance of the questions of con difficult to hold that the statute of Nebras. stitutional law thus raised will be recog. ka, in forbidding the use of the flag of the nized when it is remembered that more than United States for purposes of mere adverhalf of the states of the Union have en- tisement, infringes any right protected by acted statutest substantially similar, in the Constitution of the United States, or their general scope, to the Nebraska statute that it relates to a subject exclusively comThat fact is one of such significance as to mitted to the national government. From require us to pause before reaching the con- the earliest periods in the history of the clusion that a majority of the states have, human race, banners, standards, and enin their legislation, violated the Con- signs have been adopted as symbols of the stitution of the United States. Our ato power and history of the peoples who bore tention is called to two

in them. It is not, then, remarkable that the which the constitutionality of such an American people, acting through the legisenactment has been denied,-Ruhstrat lative branch of the government, early in v. People, 185 ml. 133, 49 L.R.A. 181, their history, prescribed a flag as symbol. 76 Am. St. Rep. 30, 57 N. E. 41; People ex ical of the existence and sovereignty of the rel, McPike v. Van De Carr, 178 N. Y. 425, 66 nation. Indeed, it would have been extraorL.R.A. 189, 102 Am. St. Rep. 516, 70 N. E. dinary if the government had started this 965. In the Illinois case the statute was country upon its marvelous career without held to be unconstitutional as depriving a giving it a flag to be recognized as the emcitizen of the United States of the right of blem of the American Republic. For that exercising a privilege impliedly, if not ex. flag every true American has not simply pressly, granted by the Federal Constitu- an appreciation, but a deep affection. No tion, as unduly discriminating and partial American, nor any foreign-born person who in its character, and as infringing the per- enjoys the privileges of American citizensonal liberty guaranteed by the state and ship, ever looks upon it without taking pride Federal Constitutions. In the other case, in the fact that he lives under this free govdecided by the court of appeals of New ernment. Hence, it has often occurred that York, the statute, in its application to arti- insults to a flag have been the cause of war, cles manufactured and in existence when it and indignities put upon it, in the presence went into operation, was held to be in viola- of those who revere it, have often been retion of the Federal Constitution, as depriv- sented and sometimes punished on the spot. ing the owner of property without due proc- It may be said that, as the flag is an em

ţAriz., Rev. Stat. 1901, p. 1295; Colo., 3139; Minn., Rev. Laws 1905, $ 5180; Mo., 2 Mills's Anno. Stat., Rev. Supp. 1891-1905, p. Anno. Stat. 1906, § 2352; Mont., Laws 1905, 542; Conn., Gen. Stat. 1902, p. 387; Cal., p. 143; N. H., Pub. Stat. 1901, p. 810; N. J., Stat. 1899, p. 46; Del., 22 Sess. Laws, p. 982; Laws 1904, p. 34; N. M., Laws 1903, p. 121; Hawaii, Sess. Laws 1905, p. 20; Idaho, Sess. N. Y., Laws 1905, vol. 1, p. 973; N. Dak., Laws Laws 1905, p. 328; Ill., Sess. Laws 1899, p. 1901, p. 103; Ohio, Laws 1902, p. 305; Or., 234; Ind., Acts 1901, p. 351; Kan., Gen. Stat. Gen. Laws 1901, p. 286; R. I., Sess. Acts Jan. 1905, § 2442, p. 499; Me., Rev. Stat. 1903, & Dec. 1902, p. 65; Utah, Laws 1903, p. 29; p. 911; Md., Laws 1902, p. 720; Mass., 2 Rev. Vt., Laws 1898, p. 93; Wis., Laws 1901, p. Laws 1902, p. 1742; Mich., Pub. Acts 1901, p. 173; Wyo., Laws 1905, p. 86.

cases

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, Looking, then, at the provision relating and if an enactment by it would supersede to the placing of representations of the flag state laws of like character, it does not fol- upon articles of merchandise for purposes low that, in the absence of national legis- of advertising, we are of opinion that those lation, the state is without power to act. who enacted the statute knew, what is There are matters which, by legislation, may known of all, that to every true American be brought within the exclusive control of the flag is the symbol of the nation's power, the general government, but over which, in the emblem of freedom in its truest, best the absence of national legislation, the state sense. It is not extravagant to say that to may exert some control in the interest of its all lovers of the country it signifies governown people. For instance, it is well estab-ment resting on the consent of the govlished that, in the absence of legislation by erned'; liberty regulated by law; the protecCongress, a state may, by different methods, tion of the weak against the strong; seimprove and protect the navigation of a curity against the exercise of arbitrary powwater way of the United States, wholly er; and absolute safety for free instituwithin the boundary of such state. So, a tions against foreign aggression. As the state may exert its power to strengthen the statute in question evidently had its origin bonds of the Union, and therefore, to that in a purpose to cultivate a feeling of patriend, may encourage patriotism and love of otism among the people of Nebraska, we are country among its people. When, by its unwilling to adjudge that in legislation for legislation, the state encourages a feeling of that purpose the state erred in duty or has patriotism towards the nation, it necessarily infringed the constitutional right of anyone. encourages a like feeling towards the state. On the contrary, it may reasonably be afOne who loves the Union will love the state firmed that a duty rests upon each state in in which he resides, and love both of the every legal way to encourage its people to common country and of the state will di- love the Union with which the state is inminish in proportion as respect for the flag dissolubly connected. is weakened. Therefore a state will be Another contention of the defendants is wanting in care for the well-being of its that the statute is unconstitutional in that, people if it ignores the fact that they re- while applying to representations of the flag gard the flag as a symbol of their country's placed upon articles of merchandise for purpower and prestige, and will be impatient poses of advertisement, it does not apply to if any open disrespect is shown towards it. a newspaper, periodical, book, pamphlet, etc., By the statute in question the state has in on any of which shall be printed, painted, substance declared that no one subject to its or placed, the representation of the flag, disjurisdiction shall use the tlag for purposes connected from any advertisement. These of trade and traffic,—a purpose wholly for- exceptions, it is insisted, make an arbitrary eign to that for which it was provided by classification of persons, which, in legal efthe nation. Such a use tends to degrade fect, denies to one class the equal protecand cheapen the flag in the estimation of tion of the laws. 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

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- Teration, was a denial of the egual protection of the laws, and forbidden by the 14th | ment. It is easy to be seen how a represen. Amendment. 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 arspecified 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 rea- tion of the laws. son of this exemption the statute was ad- It would be going very far to say that the judged to operate as a denial of the equal statute in question had no reasonable conprotection of the laws, and was, therefore, nection with the common good and was not void. The court observed that such a statute promotive of the peace, order, and wellwas not a legitimate exertion of the power being of the people. Before this court can of classification, rested upon no reasonable hold the statute void it must say that, and, basis, was purely arbitrary and therefore in addition, adjudge that it violates rights denied the equal protection of the laws to secured by the Constitution of the United those against whom it discriminated. It States. We cannot so say and cannot so said: “We conclude this part of the discus- adjudge. sion by saying that to declare that some of Without further discussion, we hold that the class engaged in domestic trade or com- the provision against the use of representamerce shall be deemed criminals if they vio- tions of the flag for advertising articles of late the regulations prescribed by the state merchandise is not repugnant to the Consti. for the purpose of protecting the public tution of the United States. It follows that against illegal combinations formed to de- the judgment of the state court must be afstroy competition and to control prices, and firmed. that others of the same class shall not be It is so ordered. bound to regard those regulations, but may combine their capital, skill, or acts to de

Mr. Justice Peckham dissented. stroy competition and to control prices for their special benefit, is so manifestly a denial of the equal protection of the laws that UNITED STATES Ex Relatione WILLIS further or extended' argument to establish

C. WEST, Piff. in Err.,

V. that position would seem to be unnecessary.”

ETHAN A. HITCHCOCK. The present case is distinguishable from Indians-adoption into tribe-control by the Connolly Case. The classification there Department of the Interior. involved was of persons alike engaged in 1. A regulation of the Department of domestic trade, which trade, the court said, the Interior that the adoption of a person was, of right, "open to all, subject to such into an Indian tribe must be approved by regulations, applicable alike to all in like the Indian Office to be valid can hardly be

said to be beyond the power of that Departconditions, as the state may legally pre- ment to adopt, in view of the provision of scribe.” Now, no one can be said to have U. S. Rev. Stat. § 463, U. S. Comp. Stat. the right, secured by the Constitution, to 1901, p. 262, that the "Commissioner of use the country's flag merely for purposes Indian Affairs shall, under the direction of of advertising articles of merchandise. If the Secretary of the Interior, and agreeeveryone was entitled of right to use it for ably to such regulations as the President such purposes, then, perhaps, the state could may prescribe, have the management of all not discriminate among those who so used Indian affairs, and of all matters arising out it. It was for the state of Nebraska to say of the Indian relations."

Secretary of Interiorhow far it would go by way of legislation Mandamus—to

Indian allotments. for the protection of the flag against im

2. The Secretary of the Interior will proper use,-taking care, in such legislation, not be compelled by mandamus to approve not to make undue discrimination against a the relator's selection, as an adopted mempart of its people. It chose not to forbid ber of the Wichita tribe, or certain lands the use of the flag for the exceptional pur- out of those ceded to the United States by

Wichita and poses specified in the statute, prescribing the

affiliated bands of the fundamental condition that its use for Indians, under the agreement of June 4, any of those purposes should be “disconnect- | (28 'stat. at L. 876, 895–897, chap. 188),

1891, ratified by the act of March 2, 1895 ed from any advertisement.” All are alike where the Secretary's answer, though not forbidden to use the flag as an advertise in terms denying the averments of the pe

tition as to the relator's membership in the filed a demurrer, which was overruled, and
tribe, alleges that he had, on a specified thereupon pleaded that the Secretary did not
date, reached and announced a decision that by the decision alleged, decide that the re-
such relator was not a member of the lator was not a member of the tribe, and
tribe, and therefore was not entitled to an for that reason deny him the allotment.
allotment.
[No. 194.]

Issue was joined and evidence taken, and

after a hearing judgment was entered for the Argued January 30, 1907. Decided March respondent and the petition dismissed. The 4, 1907.

judgment was affirmed on appeal (26 App.

D. C. 290), and then the case was brought IN 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 manda- It is argued that the answer admits the mus to require the Secretary of the Interior averments of the petition, as it does not to approve the selection by the relator, as deny them in terms, and that therefore it an adopted member of the Wichita tribe, must be taken that there was no question of 160 acres of land out of the lands ceded concerning the relator's membership for the to the United States by those Indians. Af- Secretary to decide. His identity was not firmed.

disputed, nor, it is said, the acts of adoption See same case below, 26 App. D. C. 290. that took place long before the relator apThe facts are stated in the opinion. plied to have his selection approved, and,

Messrs. William H. Robeson, Samuel A. therefore, the Secretary's duty was merely Putman, and William C. Shelley for plain- ministerial, to carry out the mandate of the tiff in error.

act. But the admission, at most, is only the Assistant Attorney General Campbell and admission implied by a plea of estoppel by Messrs. Fred. H. Barclay and Jesse C. Ad- judgment. In truth it hardly goes so far as kins for defendant in error.

that; for when a party says that he is the

proper person to decide the question raised, Mr. Justice Holmes delivered the opinion and that he has decided it against the parof the court:

ty raising it, he hardly can be said to admit This is a petition for mandamus to re- that his decision was wrong. quire the Secretary of the Interior to ap- The approval of the Secretary, required prove the selection and taking of 160 acres by the agreement, must include, as one of by the relator out of the lands ceded to the its elements, the recognition of the appliUnited States by the Wichita and affiliated cant's right. If a mere outsider were to bands of Indians, under an agreement of make a claim, it would have to be rejected June 4, 1891, ratified by the act of Congress by someone, and the Secretary is the natuof March 2, 1895, chap. 188, 28 Stat. at L. ral, if not the only, person to do it. No list 876, 895–897. The petition alleges that the or authentic determination of the parties relator is a white man, married to a Wichita entitled is referred to by the agreement, woman, and thereby a member of the tribe, so as to narrow the Secretary's duty to and that his adoption was confirmed and identification or questions of decent in case recognized in various ways set forth. By of subsequent death. The right is conferred the second article of the agreement, as part upon the members of the bands, but the asof the consideration, the United States certainment of membership is left wholly agreed that there should be allotted to each at large. No criteria of adoption are stated. member of the said bands, native and adopt- The Secretary must have authority to deed, 160 acres out of the said lands, to becide on membership in a doubtful case, and, selected by the members, with qualifications if he has it in any case, he has it in all. not in question here. The fourth article Furthermore, as his decision is not a matter contains provisions as to the title to allot of any particular form, his answer saying ments when they "shall have been selected that he has decided the case is enough; for and taken as aforesaid, and approved by the even if he had not decided it before, such Secretary of the Interior.” After a demur- an answer would announce a decision sufrer to the petition, which was overruled (19 ficiently by itself. App. D. C. 333), the Secretary answered, al- But the answer was not confined to a genleging that he had examined and considered eral allegation that the Secretary had dethe application of the relator, and on July cided the case. It gave the date of the 3, 1901, had reached and announced a de decision, and the relator, under his plea, put cision that the relator was not a member the decision in evidence. It was a letter of the tribe, and thereupon had denied the which seemed to admit that the relator had application. The relator moved for a per- been adopted by the Indians as a member emptory mandamus, which was denied, and of their tribe, but assumed that the adop

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