ruled that the indictment did not preclude the Government from giving evidence of a certain and definite character concerning the commission of the offense and that the mere fact that there might be lacking in the indictment some averment of time or place or circumstance in order to render it free from technical defects would not prevent the removal if evidence were given on the hearing which supplied such defects and showed probable cause to believe the defendants guilty of the offense defectively stated in the indictment. Mr. Justice Peckham, in delivering the opinion, was careful to say that it was not held that where the indictment charged no offense against the United States or the evidence failed to show any, or, if it appeared that the offense charged was not committed or triable in the district to which the removal was sought, the judge would be justified in ordering the removal, because there would be no jurisdiction to commit or any to order the removal of the prisoner. "There must be some competent evidence to show that an offense has been committed over which the court in the other district had jurisdiction, and that the defendant is the individual named in the charge, and that there is probable cause for believing him guilty of the offense charged." On the facts of that case it was not found necessary to express an opinion upon the question whether the finding of an indictment was, in the proceeding under section 1014, conclusive evidence of the existence of probable cause for believing the defendant in the indictment guilty of the charge set forth. Although it may be said that if the indictment were conclusive upon the accused, it would be conclusive upon the Government also.

It was held in Beavers v. Henkel, 194 U. S. 73; Benson v. Henkel, 198 U. S. 1; Hyde v. Shine, 199 U. S. 62, as well as Greene v. Henkel, supra, that an indictment constituted prima facie evidence of probable cause, but not that it was conclusive.

We regard that question as specifically presented in the

present case and we hold that the indictment cannot be treated as conclusive under section 1014.

This being so, we are of opinion that the evidence offered should have been admitted. It is contended that that evidence was immaterial, and, if admitted, could not have affected the decision of either the District or Circuit Judge. Of course, if the indictment were conclusive, any evidence might be said to be immaterial, but if the indictment were only prima facie, then evidence tending to show that no offense triable in the Middle District of Tennessee had been committed by defendant in that district could not be regarded as immaterial.

The Constitution provides that "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed," (Article III, section 2); and that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed," (Amendment VI); and in order that any one accused shall not be deprived of this constitutional right, the judge applied to to remove him from his domicile to a district in another State must find that there is probable cause for believing him to have committed the alleged offense and in such other district. And in doing this his decision does not determine the question of guilt any more than his view that the indictment is enough for the purpose of removal definitively determines its validity.

Appellant was entitled to the judgment of the District Judge as to the existence of probable cause on the evidence that might have been adduced, and even if the District Judge had thereupon determined that probable cause existed, and such determination could not be revised on habeas corpus, it is nevertheless true that we have no such decision here, and the order of removal cannot be sustained in its absence. Nor can the exclusion of the evidence offered be treated as

mere error, inasmuch as the ruling involved the denial of a right secured by statute under the Constitution.

This conclusion is fatal to the order and warrant of removal and requires a reversal of the judgment below and the discharge of appellant.

Final order reversed and cause remanded with directions to discharge appellant from custody under the order and warrant of removal without prejudice to a renewal of the application to remove.

MR. JUSTICE HARLAN dissented.

MR. JUSTICE MOODY took no part in the disposition of the

case.

KESSLER v. TREAT, UNITED STATES MARSHAL.1 MORGAN v. SAME.

CARPENTER v. SAME.

WHITTLE v. SAME.

WILCOX v. SAME.

BRADEN v. SAME.

ROYSTER v. SAME.

SMITH v. SAME.

BURROUGHS v. SAME.

MCDOWELL v. SAME.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA.

Nos. 370, 371, 372, 373, 374, 375, 376, 377, 378, 379. Argued December 3, 4, 1906.Decided March 4, 1907.

Decided on authority of Tinsley v. Treat, ante, p. 20.

1 Argued simultaneously with Tinsley v. Treat, ante, p. 20; for counsel and abstracts of arguments see ante, pp. 21 et seq.

VOL. COV-3

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,