74 Neb. 757 | Neb. | 1905
Tlie defendant was convicted of a violation of the statute entitled “An act to prevent and punish the desecration of the flag of the United States.” Laws 1903, ch. 139.
It is conclusively established that the defendants were
Section 1. “Any person who in any manner, for exhibition or display, shall place, or cause, to be placed, any word, figure, mark, picture, design, drawing, or any advertisement of any nature, upon any flag,' standard, color, or ensign, of the United States of America, or shall expose or cause to be exposed to public view any such flag, standard, color, or ensign, upon which shall be printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed, any word, figure, mark, picture, design or drawing, or any advertisement of any nature, or who shall expose to public view, manufacture, sell, expose for sale, give away, or have in possession for sale, or to give away or for use for any pui*pose, any article, or substance, being an article of merchandise, or a receptacle of merchandise upon which shall have been printed, painted, attached, or otherwise placed, a representation of any such flag, standard, color, or ensign, to advertise, call attention to, decorate, mark, or distinguish, the article, or substance on which so placed, or who shall publicly mutilate, deface, defile, or defy, trample upon, or cast contempt, either by words or act, upon any such flag, standard, color, or ensign, shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding one hundred dollars, or by imprison-
Section 2.’ “The words flag, color, ensign, as used in this act shall include any flag, standard, ensign, or any picture or representation, or either thereof, made of any substance, or represented on any substance, and of any size, evidently purporting to be, either of, said flag, standard, color or ensign, of the United States of America, or a picture, or a representation, of either thereof, upon which shall be shown the colors, the stars, and the stripes, in any number of either thereof, or by which the person seeing the. same, without deliberation may believe the same to represent the flag, color, standard, or ensign, of the United States of America.”
Section 3. “This act shall not apply to any act permitted by the statutes of the United States of America or by the United States army and navy regulations, nor shall it be construed to apply to a newspaper, periodical, book, pamphlet, circular, certificate, diploma, warrant, or commission of appointment to office, ornamental picture, article of jewelry, or stationery for use in correspondence, on any of which shall be printed, painted, or placed, said flag, disconnected from any advertisement.”
The defendants take the position that the. act contravenes section 1 of the fourteenth amendment to the federal constitution, which prohibits the states from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or which shall deprive any person of life, liberty or property without due process of law, and the provisions of the state constitution against special or class legislation. This position is supported by two cases. Ruhstrat v. People, 185 Ill. 133, 49 L. R. A. 181, and People v. Van De Carr, 178 N. Y. 428, 70 N. E. 965. In each of these cases a statute substantially like the one under consideration was held unconstitutional. The Illinois case rests on three propositions, which for convenience we shall consider out of the order in which they are there discussed.
The second proposition to be noticed is that “the act is also unduly discriminating and partial in its character.” This proposition is based on the exceptions to the general provisions of the act. The exceptions enumerated in the Illinois act are fewer than in our own, but we do not think, it can fairly be said that in either case they render the act unduly discriminating or partial. Neither act is aimed against any individual or class of individuals, but against certain acts. If it were competent for the legislature to deal with the subject, it was clearly competent for it to define the crime of desecration, and to specify
We come now to the remaining proposition on which the Illinois case rests, namely, that the statute is an infringement upon the personal liberty guaranteed by the state and federal constitutions. The court in that case recognizes the right of the state, in the exercise of its police power, to enact such laws as are calculated to promote the health, comfort, safety and welfare of society, although such laws may operate as an infringement upon the personal liberty of the citizen, but holds that such laws must be in fact calculated to promote those objects, or some of them; otherwise, they are an arbitrary restraint on the citizen and unconstitutional. Such is the gen
Moreover, that the citizen resents any improper use of the flag of his country, and that his resentment is fre-. quently carried to the extent of a breach of the peace, are matters of common knowledge. The state has the undoubted right to legislate in the interest of the public peace. As was said in Updegraph v. Commonwealth, 11 Serg. & Eawl. (Pa.) 406:
*763 “An offense against the public peace may consist either of an actual breach of the peace, or doing that which tends to provoke and excite others to do it. Within the latter description fall all acts and all attempts to produce disorder, by written, printed, or oral communications, for the purpose of generally weakening those religious and moral restraints, without - the aid of which mere legislative provisions would prove ineffectual.”
The doctrine announced in that case seems peculiarly applicable to the case in hand, and to justify the act in question as a valid exercise of the police power of the state. In People v. Van De Carr, supra, the act was not held wholly void, but only in so far as it applies to article's manufactured and in existence when the act went into effect. To that extent it was held unconstitutional as in contravention of the constitutional provision that no person shall be deprived of life, liberty or property without due process of law. If the statute is vulnerable to that objection, it would seem that a large number of our penal statutes, commonly regarded as valid, must fall by the same rule. When our act against taking fish with a seine went into effect, there were doubtless many seines manufactured and in existence. The same may be said of swivel guns, when the act making it unlawful to kill certain wild water-fowl with such guns became a law. But to our knowledge it has never been .seriously claimed that either of such acts is unconstitutional and void to the extent that it applies to “articles/manufactured and in existence when the act went intp effect.” By sweeping prohibitory legislation, those engaged in the manufacture and sale of intoxicating liquafs were put out of business in the state of Nansas, and" property whose.chief value consisted in its use in Connection with the manufacture and sale of such liquors /was rendered practically valueless. The validity of this legislation was assailed on the ground that it operated to deprive those engaged in the traffic in intoxicating liquors of their property without due process of - law. Mugler v. Kansas, 123 U. S. 623. Considering that feature of the case, the court said: ........
*764 “Lawful state legislation, in the exercise of the police powers of the state, to prohibit the manufacture and sale within the state of spirituous, malt, vinous, fermented, or other intoxicating liquors, to be used as a beverage, may be enforced against persons who, at the time, happen to own property whose chief' value consists in its fitness for such manufacturing purposes, without compensating them for the diminution in its value resulting from such prohibitory enactments.”
Nor does the fact that the flag was a part of the trademark of the brewing company place the defendants in any more favorable position. To the extent that the trade-mark is property, it comes within what has already been said. A patent or trade-mark puts no restraint upon the state in the exercise of its police power beyond the restraint imposed with respect to property generally. Patterson v. Kentucky, 97 U. S. 507.
We have gone over the act in the light of excellent briefs on either side and have reached the conclusion that it is not only a valid piece of legislation, but one Avell calculated to promote the common weal.
It is therefore recommended that the judgment of the district court be affirmed. ' -
By the Court: For the reasons stated in'-the foregoing-opinion, the judgment of the district court is\
Affirmed.