Ruhstrat v. People

• Decision Date: 17 April 1900
• Parties: RUHSTRAT v. PEOPLE.
• Court: Illinois Supreme Court

185 Ill. 133
57 N.E. 41

RUHSTRAT
v.
PEOPLE.

Supreme Court of Illinois.

April 17, 1900.

Error to criminal court, Cook county; Jonas Hutchinson, Judge.

A. Ruhstrat was convicted of violating Act April 22, 1899, prohibiting the use of the national flag for commercial or advertising purposes, and brings error. Reversed.

Cartwright, C. J., and Wilkin and Carter, JJ., dissenting.

[185 Ill. 136]

[57 N.E. 42]

Hofheimer & Pflaum, for plaintiff in error.

185 Ill. 137]Charles S. Deneen, State's Atty., and F. L. Barnett, Asst. State's Atty., for the People.

[185 Ill. 134]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 Ill. 1899, p. 234. The following is a copy of the act in question:

‘Section 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 [185 Ill. 135]believe are guilty of violating the provisions of this act. Onehalf 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 personsviolating 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 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. 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 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 capitol 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 supporr 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.

MAGRUDER, J. (afer stating the facts).

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[185 Ill. 138]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...