MR. CHIEF JUSTICE FULLER: The same decrees will be entered in each of these cases as in the foregoing.

MR. JUSTICE HARLAN dissented.

MR. JUSTICE MOODY took no part.

HALTER v. NEBRASKA.

ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

No. 174. Submitted January 23, 1907.-Decided March 4, 1907.

A long established and steadily adhered to principle of constitutional construction precludes a judicial tribunal from holding a legislative enactment, Federal or state, unconstitutional and void unless it is manifestly so.

Except as restrained by its own fundamental law, or by the supreme law of the land, a State possesses all legislative power consistent with a.republican form of government; and it may by legislation provide not only for the health, morals and safety of its people, but for the common good as involved in their well-being, peace, happiness and prosperity. There are matters which, by congressional legislation, may be brought within the exclusive control of the National Government but over which in the absence of such legislation the State may exert some control in the interest of its own people; and although the National flag of the United States is the emblem of National sovereignty and a congressional enactment in regard to its use might supersede state legislation in regard thereto, until Congress does act, a State has power to prohibit the use of the National flag for advertising purposes within its jurisdiction. The privileges of citizenship and the rights inhering in personal liberty are subject in their enjoyment to such reasonable restraints as may be required for the public good; and no one has a right of property to use the Nation's emblem for individual purposes.

A State may consistently make a classification among its people based on some reasonable ground which bears a just and proper relation to the classification and is not arbitrary.

The statute of Nebraska preventing and punishing the desecration of the flag of the United States and prohibiting the sale of articles upon which there is a representation of the flag for advertising purposes is not un

205 U.S.

Argument for Plaintiffs in Error.

constitutional either as depriving the owner of such articles of his property without due process of law, or as denying him the equal protection of the laws because of the exception from the operation of the statute of newspapers, periodicals or books upon which the flag may be represented if disconnected from any advertisement.

THE facts, which involve the constitutionality of the act of Nebraska to prevent and punish the desecration of the flag of the United States, are stated in the opinion.

Mr. Sylvester R. Rush, for plaintiffs in error:

The flag is the emblem of National sovereignty and the property of the people of the United States under the laws and Constitution of the United States. It is not a state emblem, and has never received the attention of the state legislature until the act in question was passed July 9, 1903. Nebraska has never by law adopted a flag of her own. The flag under consideration is, therefore, solely a creation of the Federal law, and neither this nor any other State has a right to prescribe the use that may be made of it by citizens of the United States.

It cannot be said that by reason of the silence of the Federal statute on the use of the flag state legislation is thereby permitted on that subject. Prigg v. Pennsylvania, 16 Pet. 539, 618; Easton v. Iowa, 188 U. S. 236.

Where the power of Congress to regulate is exclusive, the failure of Congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions; and any regulation of the subject by the States, except in matters of local concern only, is repugnant to such freedom. Robbins v. Shelby County Taxing Dist., 120 U. S. 493. See also Western Union Tel. Co. v. James, 162 U. S. 655; United States v. E. C. Knight Co., 156 U. S. 11; Pittsburg &c. Coal Co. v. Bates, 156 U. S. 588; In re Rahrer, 140 U. S. 555; Leisy v. Hardin, 135 U. S. 110; Philadelphia &c. Steamship Co. v. Pennsylvania, 122 U. S. 336; Walling v. Michigan, 116 U. S. 455; Escanaba &c. Transp. Co. v. Chicago,

Argument for Defendant in Error.

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107 U. S. 687; Welton v. Missouri, 91 U. S. 282; Rhea v. Newport News, &c. R. Co., 50 Fed. Rep. 22; Pacific Coast Steam Ship Co. v. Railroad Commissioners, 18 Fed. Rep. 11; The Barque Chusan, 2 Story (U. S.), 455; S. C., 5 Fed. Cas. No. 2,717; Southern Express Co. v. Goldberg, 101 Virginia, 621.

The act in question is in conflict with the Fourteenth Amendment to the Federal Constitution. Ruhstrat v. People, 185 Illinois, 133, 145; People ex rel. McPike v. Van De Carr, 91 N. Y. Sup. Ct. Rep. 20.

The police power of the State cannot be consistently invoked to sustain such a law. Smiley v. McDonald, 42 Nebraska, 5.

The flag law is void for the reason that it attempts to destroy existing property rights. People ex rel. McPike v. Van De Carr, 178 N. Y. 425.

The flag law is class legislation, and, therefore, null and void. This law directly permits the publishers of newspapers and books, the stationer and the jeweler to use the flag in their business, to place it upon their goods and wares, thereby attracting attention to them, advertising them, and by such means increasing their trade and business; but if any other merchant or business man uses the flag in his business, or as a part of a trademark, under which his business is carried on, he thereupon becomes subject to the pains and penalties of this statute.

While there may be a classification of subjects for legislative purposes, such classification must be reasonable, not arbitrary; must arise out of consideration of sound reasons of public policy, not mere whims-advantages extended to one citizen and denied to another. Lancashire Ins. Co. v. Bush, 60 Nebraska, 123.

Mr. Norris Brown, Attorney General of the State of Nebraska, for defendant in error:

Under the police power of the State the legislature may enact laws to punish persons who desecrate the National

emblem or use it for advertising a private business. Updegraph v. Commonwealth, 11 Serg. & Rawl. (Pa.) 406; Vidal v. Girard, 2 How. 198.

No act of Congress or any provision of the state or of the Federal Constitution prohibits the legislature of Nebraska from enacting a law to prevent the desecration or misuse of the flag of the United States, and the State is left free to enact such a law. Fox v. State, 5 How. 410.

The flag law is not unconstitutional as destroying existing property rights. Patterson v. Kentucky, 97 U. S. 507; Mugler v. Kansas, 123 U. S. 623.

The flag law is not unconstitutional as class legislation. Mugler v. Kansas, 123 U. S. 660.

The Illinois and New York cases cited in support of the objection to the flag law of Nebraska are not precedents to be followed. Vidal v. Girard, 2 How. 198; Ex parte Siebold, 100 U. S. 389; Fox v. State, 5 How. 410; Patterson v. Kentucky, 97 U. S. 507; Mugler v. Kansas, 123 U. S. 623; Davis v. State, 51 Nebraska, 302; Rosenbloom v. State, 64 Nebraska, 344.

MR. JUSTICE HARLAN delivered the opinion of the court.

This case involves the validity, under the Constitution of the United States, of an act of the State of Nebraska, approved July 3d, 1903, entitled "An act to prevent and punish the desecration of the flag of the United States." 1

1" 2375g. 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 purpose, 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,

The act, among other things, makes it a misdemeanor, punishable by fine or imprisonment, or both, for any one to sell, expose for sale, or have in possession for sale, any article of merchandise, upon which shall have been printed or placed, for purposes of advertisement, a representation of the flag of the United States. It expressly excepted, however, from its operation any newspaper, periodical, book, etc., on which should be printed, painted or placed a representation of the flag "disconnected from any advertisement." 1 Cobbey's Ann. Stat. Neb. 1903, c. 139.

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 painted a representation of the flag of the United States.

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 imprisonment for not more than thirty days, or both in the discretion of the court.

"§ 2375h. 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, or ensign, of the United States of America.

"§ 2375%. 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 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, or any of which shall be printed, painted or placed, said flag, disconnected from any advertisement." 1 Cobbey's Ann. Stat. Neb. 1903, c. 139.