NOTES OF RECENT CASES OF IMPORTANCE FROM THE NATIONAL REPORTER SYSTEM. (Copies of the pamphlet Reporters containing full reports of any of these decisions may be secured from the West Publishing Company, St. Paul, Minnesota, at 25 cents each. In ordering, the title of the desired case should be given as well as the citation of volume and page of the Reporter in which it is printed.)
AMERICAN FLAG. (DESECRATION—USE FOR AnVERTISINT. PURPOSES — CONSTITUTIONALITY OF STATUTE—POLICE POWER.) NEW YORK SUPREME COURT.
In People r. Van De Carr, 86 New York Supplement 644, the constitutionality of Penal Code, Sec. 640, subd. 16, prohibiting the use of the United States flag for advertis ing purposes is determined. The statute not only prohibits the use of the flag as a trade mark or label or for the advertisement of merchandise, but also pro hibits its mutilation, defacement or defile ment, and the displaying of any word, figure, mark or advertisement of any nature upon the emblem itself. In these latter particulars the statute is held constitutional, the court saying, "It was competent for the Legisla ture to make it a misdemeanor to publicly mutilate, deface, defile, trample on, or cast contempt, either by words or act, upon the national or State flag, and the mutilation of the flag may mean the printing of an adver tisement on the ensign itself. Such legisla tion is within the police power of the State, for it relates to the preservation of the peace." But while this is true and that part of the statute may be separated from the other provisions, the court is led to the conclusion that such other provisions are unconstitu tional. All parts of this statute must be up held, if at all, on the ground that the legisla tion is within the police power of the State. It is elementary that to be within the police power the legislation must relate in some way to the public health, morals, safety, comfort and general welfare. The prohibition of the use of the flag as a trade-mark or in connection with an adver tisement of merchandise, it is said, in no way relates to any one of the legitimate subjects to which the police power extends.
The Federal government has not pro hibited the use of the flag in connection with advertisements. Trade labels, of which it forms a part, are accepted at the patent office. Not being within the police power, this part of the statute is an unauthorized interfer ence with the liberty of the citizen, which in cludes the right to engage in any lawful pur suit, and to use all customary and lawful agencies in the prosecution of such business, and it is not legitimate legislation to declare that one of those agencies shall become un lawful, unless its use in some way affects the public health, etc. The statute made an exception in favor of the reproduction of the flag in newspapers, books, circulars, ornamental pictures, articles of jewelry or stationery, etc., where it was not connected with an advertisement. This exception, the court holds, renders the stat ute class legislation, and obnoxious to the Fourteenth Amendment. A number of cases are cited on general and collateral propositions, but no case is re ferred to which is directly in point. ARREST. (HOMICIDE IN ATTEMPTING— RESPONSI BILITY OF OFFICER.) UNITED STATES CIRCUIT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA.
/;/ re Laing, 127 Federal Reporter 213, was a proceeding in habeas corpus to secure the relator's release from confinement on an indictment for murder. Relator was a member of a posse organ ized by the United States marshal, to effect the arrest of a striker charged with resisting an officer during the West Virginia coal strike in 1903. The striker had stated that he did not intend to be taken alive, and never intended to be arrested. The officers and posse, amounting in all to four persons, ap
