NOTES OF RECENT CASES of the law, are held not to require a trial by jury in suits at common law in a state court. This point, as the court pointed out, had been previously settled by the decision in Maxwell i1. Dow, 176 U.S. 581, 26 Sup. Ct. 448. The point specifically in issue in the present case was whether a statute recently adopted in Rhode Island, authorizing the supreme court to direct judgment without any further trial by jury, is constitutional. In determining this matter the court traces the history of jurisprudence in Rhode Island, pointing out that by the charter of Rhode Island the validity of its laws was made dependent upon their not being contrary, but as near as might be agreeable, to the laws of England, regard being had to the nature and constitution of the place and the people. Public Laws, 1636—1705, provided for a second jury trial as of course, and this remained the law of the colony and of the state till 1878. From 1732 to 1844 a third trial could be had as of course on a writ of review, and from such third jury trial prior to the Revolution an appeal to the king in council might be had, on which appeal judgments and verdicts were reversed without remanding for a new trial. Constitution adopted in 1843 provided that the right of trial by jury should remain inviolate. And in view of these historical facts, the court holds that the legislature was authorized to give the supreme court power to direct judgment without any further jury trial. CONSTITUTIONAL LAW. (Flag Law.) Neb. — In Halter v. State, 105 Northwestern Reporter, 298, the supreme court of Nebraska takes issue with the courts of both Illinois and New York in their recent decisions in Ruhstrat v. People, 57 N. E. 41, and People ex rel. McPike v. Van De Carr, 70 N. E. 965, that the statutes prohibiting the use of the national flag for advertising purposes are unconstitutional. The decision of the New York court, to be sure, is not quite so broad as that of the Illinois court, but the Nebraska court finds fault even with that decision. Various contentions of the defendants are considered, and it is main tained that the claim that the act deprived citizens of the right of exercising a privilege, impliedly, if not expressly, granted by the Federal Constitution, was unfounded. " The right to advertise whisky, beer, tobacco, and other articles of merchandise by the use of the national flag is," says the court, "not the subject of an express constitutional grant, and it can be said to be impliedly granted only in the sense that, like an infinite number of other acts, it is not prohibited. If the fact that an act or course of action is not prohibited by the Federal Constitution gives a citizen of the United States a right which the state is powerless to abridge or
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restrict, the sphere of state legislation is more circumscribed than has been generally supposed, and our Criminal Code is largely waste paper." The decision in the Illinois case that the statute is an infringement upon the personal liberty guaranteed by the state and federal constitutions is met with the argument that as patriotism has always been regarded as the highest civic virtue, and as contempt for an emblem begets a like state of mind toward that for which it stands, the statute is grounded upon sound practical consid erations, and is within the police power. In the New York case the act was held not to be wholly void, but to be so only to the extent that it applied to articles manufactured and in existence when the act went into effect. It is asserted that this is not always an objection to the constitutionality of a statute, and it is pointed out that when the act against taking fish with a seine went into effect, there were many seines manufactured and in existence which were rendered practically valueless, and the same may be said of swivel guns. The prohibitory liquor laws necessarily rendered nearly valueless a large amount of property which was used in connection with the manufacture and sale of such liquors in the states which enacted such laws. This, however, was not regarded by the supreme court as a fatal objection to the statute. This same holding answers the objection that the act could not constitutionally interfere with the use of the trade-mark of the defendant company, which trade-mark was com posed in part of a representation of the flag. To this claim the court replies that a trade-mark is property only, and consequently comes within the scope of the argument as to property rights.
CONSTITUTIONAL LAW. (Taxation.) N. C. — A new North Carolina statute intended to equi tably distribute the burden of maintaining public highways, is held constitutional in State v. Holloman, 52 Southeastern Reporter, 408. S. C. Laws 1905, p. 292, c. 259. requires persons desiring to use the highways of certain towns for heavy hauling to procure a license on payment of $15 per wagon, and aiakes it a crime to use. roads for heavy hauling without such license. The funds derived from the licenses are to be placed to the credit of the board of supervisors and to be used as other funds of the township. This act is held a valid exercise of the power of the legislature to prescribe by what methods the roads shall be used, worked, and kept in repair. The system provided by the statute is, the court says, an approximation to the just rule of taxation for roads in proportion to the benefit received.
