A. Ruhstrat v. The
People of the State of Illinois
57 N.E. 41
April 17, 1900
Writ
of Error to the Criminal Court of Cook county; the Hon. Jonas Hutchinson, Judge,
presiding.
The
plaintiff in error was prosecuted and convicted for violation of an act of the
legislature of Illinois, entitled “An act to prohibit the use of the national
flag or emblem for any commercial purposes or as an advertising medium,”
approved April 22, 1899, in force July 1, 1899. (Laws of Ill. 1899, p. 234).
The following is a copy of the act in question:
“Sec.
1. It shall be unlawful for any person, firm, organization or corporation to
use or display the national flag or emblem, or any drawing, lithograph,
engraving, daguerreotype, photograph or likeness of the national flag or
emblem, as a medium for advertising any goods, wares, merchandise, publication,
public entertainment of any character or for any other purpose intended to
promote the interests of such person, firm, corporation or organization.
“Sec.
2. Nothing in this act shall be construed as affecting either public or private
exhibitions of art, or shall in any way restrict the use of the national flag
or emblem for patriotic purposes.
“Sec.
3. All prosecutions under the provisions of this act shall be brought by any
person in the name of the People of the State of Illinois, against any person
or persons violating any of the provisions of this act, before any justice of
the peace of the county in which such violation is alleged to have taken place,
or before any court of competent jurisdiction;
and it is hereby made the duty of the State’s attorney to see that the
provisions of this act are enforced in their respective counties, and they
shall prosecute all offenders on receiving information of the violation of any
of the provisions of this act; and it is
made the duty of the sheriffs, deputy sheriffs, constables and police officers
to inform against and prosecute all persons whom there is probable cause to
believe are guilty of violating the provisions of this act; one-half of the amount recovered in any penal
action under the provisions of this act shall be paid to the person filing the
complaint in such action, and the remaining one-half to the school fund of the
county in which the said conviction is obtained.
“Sec.
4. All prosecutions under this act shall be commenced within six months from
the time such offense was committed, and not afterwards.
“Sec.
5. Any persons violating the provisions of this act shall be deemed guilty of a
misdemeanor, and upon conviction, shall be punished by a fine of not less than
$10 nor more than $100 and costs, and in default of payment of said fine and
costs imposed shall be imprisoned in the county jail at the rate of one day for
each dollar of fine and costs imposed.”
Plaintiff
in error, A. Ruhstrat, and his partner, Allen S. Curlett, are co-partners under the firm name of Ruhstrat & Curlett in the
wholesale and retail cigar business in the city of Chicago. They used pictures
of the national flag upon cigar box labels for the purpose of advertising and
selling certain brands of their cigars by means of such advertisement.
Plaintiff in error was arrested for a violation of said act, and, on trial
before a justice of the peace, was fined $50.00 and costs. He took an appeal to
the criminal court of Cook county, and, upon trial of the case in the latter
court, he was found guilty and fined $10.00. Motions for a new trial and in
arrest of judgment were made and overruled. Judgment was rendered upon the
finding of the court, a jury having been waived, and plaintiff in error was
fined $10.00 and costs. The present writ of error is prosecuted from this
judgment of the criminal court of Cook county.
Specimens
of the labels used by the plaintiff in error upon his cigar boxes are in the
record. One of these labels is a pictorial representation with a female head in
the center and a picture of the American flag in the upper left-hand corner.
Another of the labels is a pictorial representation with the likeness of
Nansen, the explorer, in the center of a wreath, around one side of which is
entwined an American flag. Another label is a pictorial representation with a
likeness of President Lincoln in the center, and a view of the capítol building at Washington in the distance; and upon the right-hand of the
representation is a picture of the American flag. Still another label is a
pictorial- representation with a female figure in the center, holding in her
right hand a shield containing upon it a picture of the American flag.
The
plaintiff in error, upon the trial below, submitted to the court, to be held as
law in the decision of the case, certain propositions to the effect, that the
act in question was illegal and void as being in violation of the constitutions
of the State of Illinois and of the United States. These propositions were
refused, and exception was taken to the refusal of the same. The reasons,
assigned in support of the motions for a new trial and in arrest of judgment,
were also the alleged invalidity of the act as being in conflict with the
Illinois and Federal constitutions.
Mr. Justice Magruder delivered the opinion of the court:
The
provisions of the constitution of Illinois, which the terms of the act of April
22, 1899, known as the “Flag law,” are alleged to contravene, are sections 1, 2
and 4 of article 2 and section 22 of article 4. Section 1 of article 2 is as
follows: “All men are by nature free and independent, and have certain inherent
and inalienable rights — among these are life, liberty, and the pursuit of
happiness. To secure these rights and the protection of property, governments
are instituted among men, deriving' their just powers from the consent of the
governed.” Section 2 is as follows: “No person shall be deprived of life,
liberty or property, without due process of law.” Section 4 of the same article
provides, that “every person may freely speak, write and publish on all
subjects, being responsible for the abuse of that liberty,” etc. Section 1 of
article 14 of the amendments to the constitution of the United States is as
follows: “All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty or property, without due process of law, nor deny to any person
within its jurisdiction the equal protection of the laws.”
The
expression, “life, liberty, and the pursuit of happiness,” is general in its
character, and includes many rights which are inherent and inalienable. Many of
the rig'hts referred to in this expression are
included in the general guaranty of “liberty.” The happiness here referred to
may consist in many things or depend on many circumstances, but it
unquestionably includes the right of the citizen to follow his individual
preference in the choice of an occupation. (Black on Const. Law, p. 404). “The
right of every man to choose his own occupation, profession, or employment,
though not expressly guaranteed by the constitutions, is included in the right
to the pursuit of happiness.” (Ibid. p. 411).
In
Powell v. Pennsylvania, 127 U. S. 678, the general
proposition, that the enjoyment by the citizen, upon terms of equality with all
others in similar circumstances, of the privilege of pursuing an ordinary
calling or trade, and of acquiring, holding, and selling property, is a general
part of his rights of liberty and property as guaranteed by the fourteenth
amendment, was assented to by the Supreme Court of the United States, as
embodying a sound principle of constitutional law. In the latter case, it was
also held, that, although the power and discretion which a State legislature
has in the matter of promoting the general welfare and of employing means to
that end are very large, yet such power must be so exercised as not to impair
the fundamental rights of life, liberty, and property.
In Allgeyer v. Louisiana, 165 U. S. 578, it was said: “The
right to follow any of the common occupations of life is an inalienable right.
It was formulated as such in the phrase ‘pursuit of happiness’ in the
Declaration of Independence, which commenced with the fundamental proposition,
that ‘all men are created equal; that
they are endowed by their Creator with certain inalienable rights; and that among these are life, liberty, and
the pursuit of happiness.’ This right is a large ingredient in the civil
liberty of the citizen.” It was also said in this case that “the liberty of
pursuit — the right to follow any of the ordinary callings of life — is one of
the privileges of a citizen of the United States.” It was also there said: “If
it does not abridge the privileges and immunities of a citizen of the United
States to prohibit him from pursuing his chosen calling, and giving to others
the exclusive right of pursuing it, it certainly does deprive him (to a certain
extent) of his liberty; for it takes
from him the freedom of adopting" and following the pursuit which he
prefers; which, as already intimated, is
a material part of the liberty of the citizen.” (Butchers' Union Co. v.
Crescent City Co. 111 U. S. 746).
In Braceville Coal Co. v. People, 147 Ill. 66, we said (p. 71): “Liberty,
as that term is used in the constitution, means not only freedom of the citizen
from servitude and restraint, but is deemed to embrace the right of every man
to be free in the use of his powers and faculties, and to adopt and pursue such
avocation or calling as he may choose, subject only to the restraints necessary
to secure the common welfare.” (Frorer v. People, 141 Ill. 171; Perry v. Commonwealth, 155 Mass. 117; People v. Gillson, 109 N. Y. 389; Live Stock Ass. v. Crescent City, 1
Abb. 388; Slaughter-house cases, 16 Wall. 36; Goodcharles v. Wigeman, 113 Pa. St. 431;
State v. Goodwill, 33 W. Va. 179).
The
plaintiff in error was engaged in the wholesale and retail cigar business. This
was certainly a lawful and respectable business. Under the authorities referred
to and under the interpretation of the constitution there made, plaintiff in
error had not only the right to choose the business, in which he was engaged,
as his occupation, but he had the right to pursue and carry on that business in
any way and by any methods which were lawful and proper. Included in “the right
to choose one’s occupation is the right to be free from unlawful interference
or control in the conduct of it.” (Black on Const. Law, p. 412). In these days
of commercial enterprise, advertising is an important factor in business
pursuits. It cannot be denied that the plaintiff in error had a right to
advertise his business in any legitimate manner,' so as to attract the
attention of the public. Ror can it be denied that
the plaintiff in error had the right to design and make use of a trade-mark.
The use of trade-marks is as old as commerce itself. The conventional
trade-mark is a part of what is called “the symbolism of commerce.” (Browne on
Trademarks, 2d ed., secs. 1, 26).
It
is allowable to use a picture as a trade-mark; and a picture made up of many objects
in many colors may be a trade-mark. (Ibid. secs. 258, 259). Browne, in bis work
on Trade-marks (sec. 265) says: “Color may be of the essence of a mark of
manufacture or commerce, known as a trade-mark. Rational flags are sometimes
blended with other objects to catch the eye. They are admirably adapted to all
purposes of heraldic display, and their rich glowing colors .appeal to feelings
of patriotism, and win purchasers of the merchandise to which they are affixed,
-x- « * One flag printed in green may catch the eye of a son of the Emerald
Isle; * * * another flag, with stars on
a blue field and stripes of alternate red and white, may secure a preference
for the commodity upon which it is stamped.”
The
right of the citizen to pursue the calling which he has chosen, and to
advertise his business in a legitimate way by the use of labels or trade-marks,
is not improperly exercised by making a picture of the national flag a part of
such labels or trade-marks, unless thereby the public safety, welfare or
comfort is interfered with.
It
is claimed on the part of the People, that the Flag law in question was enacted
by the State legislature in the exercise of its police powers. The law is
justified upon the alleged ground, that it is an enactment under and by virtue
of the police power of the State; and that, being enacted under and by
virtue of that power, the courts cannot exercise a supervision over the wisdom
and judgment of the legislature in its passage. It is claimed that the law
tends to elevate the morals and promote the welfare of the public; and that, as such, it is a valid
exercise of legislative power.
The
police power is limited to enactments which have reference to the public health
or comfort, the safety or welfare of society. Laws, which impose penalties on
persons and interfere with the personal liberty of the citizen, cannot be
constitutionally enacted, unless the public health, comfort, safety or welfare
demands their enactment. It is for the legislature to determine when an
exigency exists for the exercise of this power, but what are the subjects of
its exercise is clearly a judicial question. The exercise of legislative
discretion is not subject to review by the courts when measures adopted by the
legislature are calculated to protect the public health and secure the public comfort,
safety or welfare; but
the measures so adopted must have some relation to the ends thus specified.
(Ritchie v. People, 155 Ill. 98). The legislature has
no power, under the guise of police regulations, to arbitrarily invade the
personal rights and personal liberty of the individual citizen. Its
determination upon this question is not final or conclusive. If it pass an act
ostensibly in the exercise of the police power, but which in fact interferes
unnecessarily with the personal liberty of the citizen, the courts have a right
to examine the act and see whether it relates to the objects which the exercise
of the police power is designed to secure, and whether it is appropriate for
the promotion of such objects. When the police power is exerted for the purpose
of regulating a useful business or occupation and the mode in which that
business may be carried on or advertised, the legislature is not the exclusive
judge as to what is a reasonable and just restraint upon the constitutional
right of the citizen to pursue his calling", and to exercise his own
judgment as to the manner óf conducting it. The
general right of every person to pursue any calling, and to do so in his own
way, provided that he does not encroach upon the rights of others, cannot be
taken away from him by legislative enactment. (Tiedeman on Lim. of Police
Power, sec. 3; In re Jacobs, 98 N. Y. 108; People v. Gillson, supra; Cooley on Const. Lim. — 6th ed. — pp. 606,
607) 744; Ex parte
Whitwell, 32 Pac. Rep. 872; 98 Cal. 73; Frorer v. People, supra; Town of Lake View v. Rose Hill Cemetery Co. 70 Ill. 191; Ritchie v. People, supra).
In
Mugler v. Kansas, 123 U. S. 623, it was said: “If,
therefore, a statute purporting to have been enacted to protect the public
health, the public morals, or the public safety, has no real or substantial
relation to those objects, or is a palpable invasion of rights secured by the
fundamental law, it is the duty of the courts so to adjudge, and thereby give
effect to the constitution.” In Eden v. People, 161 Ill. 296, we said (p. 308): “If
the act were one calculated to promote the health, comfort, safety and welfare
of society, then it might be regarded as an exercise of the police power of the
State. In Toledo, Wabash and Western Railway Co. v. City of Jacksonville, 67 Ill. 37, it was held that, if
the law prohibits that which is harmless in itself, or requires that to be done
which does not tend to promote the health, comfort, safety or welfare of society,
it will, in such case, be an unauthorized exercise of power, and it will be the
duty of the courts to declare such legislation void.”
It
is difficult to see how the Flag law of April 22,1899, tends in any way to
promote the safety, welfare or comfort of society. The use of a likeness of the
flag upon a label or as part of the trade-mark of a business man in the lawful
prosecution of his business, cannot be regarded otherwise than as an act which
is harmless in itself. It may violate the ideas, which some people have of
sentiment and taste, but the propriety of an act, considered merely from the
standpoint of sentiment and taste, is a matter, about which men of equal
honesty and patriotism may differ.
The
act in question is severe in its terms. It makes it the duty of the State’s
attorney to prosecute all persons guilty of a violation of the provisions of
the act, and makes it the duty of sheriffs, deputy sheriffs, constables, and
police officers to inform against all persons “whom there is probable cause to
believe are guilty of violating the provisions of this act; one-half of the amount recovered in any penal
action under the provisions of this act shall be paid to the person filing the
complaint in such action, and the remaining one-half to the school fund of the
county. * * * Any persons violating the provisions of this act shall be deemed
guilty of a misdemeanor, and upon conviction, shall be punished by a fine of
not less than $10.00, nor more than $100.00 and costs, and in default of
payment of said fine and costs imposed shall be imprisoned in the county jail,”
etc. What is the offense for which these penalties are imposed? The using or
displaying of the national flag or emblem or any drawing or likeness of the
same “as a medium for advertising any goods, wares, merchandise, publication,
public entertainment of any character or for any other purpose intended to
promote the interests of such person, firm, corporation or organization,” so
using or displaying the same. Section 2 of the act provides that the use of the
national flag or emblem for patriotic purposes shall not in any way be
restricted. It is not altogether clear that a person might not make use of or
display the national flag or emblem for a purpose intended to promote his own
interests, and yet, at the same time, for an entirely patriotic purpose. It is
not clear that the prohibition, leveled against the use or display of the flag,
tends in any way to elevate the morals or promote the welfare of the public.
The
flag is used, in the prosecution of commerce upon the high seas, as a symbol of
nationality. The nationality of a ship is determined by the flag which it
carries. A ship, navigating under the flag and pass of a foreign country, is to
be considered as bearing the national character of the country under whose flag
she sails. Under what is called, in international law, “the law of the flag,” a
ship-owner, who sends his vessel into a foreign port, gives notice by his flag
to all who enter into contracts with the ship-master, that he intends the law
of that flag to regulate those contracts, and that they must either submit to
its operation or not contract with him or his agent at all. (1 Bouvier’s Law Dic. — Rawle’s Rev. — pp. 799, 800).
It
is a doctrine of international law that a ship becomes hostile so soon as she
hoists the enemy’s flag;
and while the cargo of the ship does not necessarily take
character from the flag, yet the general rule is that the goods under such flag
follow the fate of the vessel. (11 Am. & Eng. Ency. of Law, p. 480, note
3). It is difficult to see why, if in the prosecution of foreign commerce or
trade, the flag is used to protect a ship and cargo and designate its
character, it should be a desecration of the same flag to use a likeness of it
upon a label or trademark in the prosecution of domestic trade or business.
A
flag is emblematic of the sovereignty of the power which adopts it. The
American flag is emblematic of the sovereignty of the United States. Congress,
by sections 1791 and 1792 of the Revised Statutes of the United States, has
provided as follows: “The flag of the United States shall be thirteen
horizontal stripes, alternate red and white; and the union of the flag shall be
thirty-seven stars, white in a blue field. On the admission of a new State into
the Union, one star shall be added to the union of the flag; and such addition shall take effect on
the fourth day of July then next succeeding said admission.”
In
The Collector v. Day, 11 Wall. 113, it was said: “The
general government, and the States, although both exist within the same
territorial limits, are separate and distinct sovereignties, acting separately
and independently of each other, within their respective spheres. The former in
its appropriate sphere is supreme; but the States within the limits of
their powers not granted, or, in the language of the tenth amendment,
‘reserved, ’ are as independent of the general government as that government
within its sphere is independent of the States.” The State of Illinois has
never adopted a flag emblematic of its sovereignty. The flag' is the flag of
the United States as a sovereignty. The United States, acting through its
Congress, has adopted a flag emblematic of national sovereignty. Presumably,
the national flag was adopted for the use of the citizens of the United States.
There is a difference between the privileges and immunities belonging to the
citizens of the United States as such, and those belonging to the citizens of
each State as such. The privileges and immunities of citizens of the United
States are those, which arise out of the nature and essential character of the
national government, the provisions of its constitution, or its laws and
treaties made in pursuance thereof; and
it is these rights which are placed under the protection of Congress by the
fourteenth amendment. (People v. Loeffler, 175 Ill. 585; Slaughter-house cases, 16 Wall. 36). The right to use or
display the flag would seem to be a privilege of a citizen of the United
States, rather than the privilege of a citizen of any one of the States. The
national government, in the exercise of its inherent power to establish a flag
or emblem symbolic of national sovereignty, has passed sections 1791 and 1792
above referred to, and has thereby taken jurisdiction of the subject matter of
a national flag, and has legislated upon it. Congress has passed no legislation
restricting the use of the flag, or confining its use to any particular
purpose. It would seem that, if it had been the intention of Congress to
restrict or confine such use, some provision to that effect would have been
embodied in the act prescribing and describing the national flag.
-
The use of the flag of the United States, as embodied in advertising sheets and
placards and labels and in common law trade-marks, has received the unqualified
approval of the whole commercial world. It has also received the sanction of
those having in charge the execution of the trade-mark laws of the United
States. The usage and practice of employing a flag for commercial purposes have
been indulged in by citizens of the United States with the knowledge of the
national government. The absence of Congressional prohibition against the usage
and practice, thus indulged in with the knowledge of the general government,
has created a “privilege” in the citizens of the United States to continue such
use until withdrawn by the competent authority. An act of legislation, passed
by a particular State, which deprives the citizen of such privilege,
contravenes that clause of the amendment to the national constitution which
forbids any State to abridge the privileges and immunities of a citizen of the
United States. If the State legislature can restrict the use of the national
flag, and permit its use for one purpose, and prohibit its use for another
purpose, it would have the right to prohibit its use altogether within the
limits of the State. But it cannot be pretended that the State of Illinois has
authority to prohibit the use of the national flag altogether. It necessarily
follows that it has no authority to prohibit its use for certain purposes.
We
are of the opinion that this law is unconstitutional, not only as infringing
upon the personal liberty guaranteed to the citizen by both the Federal and
State constitutions, but also as depriving a citizen of the United States of
the right of exercising a privilege impliedly, if not expressly, granted to him
by the Federal constitution.
The
act is also unduly discriminating and partial in its character. It exempts from
penalties imposed by the act persons who may choose to make use of the national
flag or emblem for either public or private exhibitions of art. The exhibitor,
who engages in public or private exhibitions of art, may do so not merely for
the public benefit, but for the promotion of his own interests. By thus
excluding artists or exhibitors from the inhibitions of section 1 of the act,
the act thereby creates a class or classes of persons who are exempted from the
penalties embraced therein. Legislation of this kind has frequently been
condemned by the courts in this country. The legislature clearly has no power
to deny to plaintiff in error the right to use the national flag to advertise
his business, or, in other words, to deny to all persons following particular occupations
the right to use the national flag, and, at the same time, to permit artists or
art exhibitors to use the same. The manner, in which the act thus discriminates
in favor of one class of occupations and against all others, places it in
opposition to the constitutional guaranties hereinbefore referred to. (Millett
v. People, 117 Ill. 294; Ritchie v. People, 155 id. 98).
For
the reasons herein set forth the judgment of the criminal court of Cook county
is reversed, and the cause is remanded to that court for further proceedings in
accordance with the views herein expressed.
Reversed
and, remanded.
Wilkin
and Carter, JJ., and Cartwright, C. J., dissenting.