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a representation of the flag for such purposes runs counter to a general public sentiment, or that the statute in this respect gives expression to a general public desire. The government of the United States has not prohibited the use of the flag in connection with advertisements. Trade labels, of which a representation of the national ensign forms a part, are accepted at the Patent Office, as appears upon the face of one of the labels annexed to the complaint in this matter. Such trade-marks and labels have been of common use. “National flags are sometimes blended with other objects to catch the eye. They are admirably adapted to all purposes of heraldic display, and their rich, glowing colors appeal to feelings of patriotism, and win purchasers of the merchandise to which they are affixed. One flag printed in green may catch the eye of'a son of the Emerald Isle. * Another flag, with stars on a blue field, and stripes of alternate red and white, may secure a preference for the commodity upon which it is stamped." Browne on Trade-Marks, 265. There is nothing in the use of a representation of the American flag as a trade-mark, or in connection with a trade-mark or trade label, that inspires the idea that that flag is degraded or belittled. On the contrary, the remark of Mr. Browne would seem to indicate the real situation, namely, that their rich glowing colors appeal to feelings of patriotism.

Not relating to any legitimate exercise of police power, those provisions of the statute under consideration which make it a criminal offense to use the national standard in connection with a trade-mark or trade label or advertisement of merchandise cannot be regarded otherwise than as an unauthorized interference with the privilege and the liberty of the citizen, for liberty, as is well understood, includes the right to engage in any lawful pursuit not injurious to the community, and subject only to the restraints necessary for the common welfare (People v. Marx, 99 N. Y. 386, 2 N. E. 29, 52 Am. Rep. 34), and that includes the right to use all agencies customary and lawful in the prosecution of business; and it is not legitimate legislation to declare that one of those customary and lawful agencies shall become unlawful, unless its use in some way affects the public health, the public morals, the public peace, the public safety, the public welfare, or the general comfort. Hence we think, as to this statute, on the point now under consideration, it is obnoxious to the objection that it infringes upon the personal liberty of the citizen. What is said on this subject in Ruhetrat v. People, 185 Ill. 133, 57 N. E. 41, 49 L. R. A. 181, 76 Am. St. Rep. 30, is pertinent and instrụctive:

“Legislation will not be allowed arbitrarily to interfere with the personal liberty of the citizen under the specious guise of an exercise of the police power, and therefore it is that our courts may supervise, as a judicial question, a determination of the Legislature to exercise the police power in restraint of some trade or calling."

Gray, J., People v. Lochner, 177 N. Y. 145, 69 N. E. 373. January, 1904).

There is another objection to be considered, and that is that the parts of the statute we have last considered offend against that provision of the fourteenth amendment of the Constitution of the United

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and 120 New York State Reporter
States which declares that no state shall deprive any person of life,
liberty, or property without due process of law, nor deny to any one
within its jurisdiction the equal protection of the laws. What this
provision means is proclaimed in Barbier v. Connolly, 113 U. S. 27,
5 Sup. Ct. 357, 28 L. Ed. 923, where it said that it is
“Undoubtedly intended not only that there should be no arbitrary deprivation
of life or liberty, or arbitrary spoliation of property, but that equal protection
and security should be given to all, under like circumstances, in the enjoyment
of their personal and civil rights; that all persons should be equally entitled
to pursue their happiness and acquire and enjoy property ; that they should
have like access to the courts of the country for the protection of their persons
and property, the prevention and redress of wrongs, and the enforcement of
contracts; that no impediment should be interposed to the pursuits of any one,
except as applied to the same pursuits by others under like circumstances ;
that no greater burdens should be laid upon one than are laid upon others in
the same calling and condition; and that, in the administration of criminal jus-
tice, no different or higher punishment should be imposed upon one than such
as is prescribed to all for like offenses."

By the terms of the statute applicable to this case, a clear dis-
crimination is made between citizens engaged in business, in the use
of a representation of the American flag in connection with their busi-
ness. The merchant and the manuiacturer are made criminals for
using such representation, while the book publisher, the newspaper
proprietor, the jeweler, and the stationer are permitted to use the
symbol in their business, to put it upon their merchandise, and to
make profit by its use. The situation is not saved by the introduction
into the statute of the proviso that the stationer, the book publisher,
the jeweler, and the newspaper proprietor may use the representation
of the flag so long as it is disconnected from any advertisement.
The representation of the flag is impressed upon the goods of such
persons, and they advertise by it. The label and the trade-mark are
or may be equally impressed upon the goods of other persons. In
either case there is no substantial difference in the use of the symbol
or representation of the flag. Certain classes of men by this law are
allowed to use that representation of the flag for their own profit on
their merchandise, while others are not only debarred from doing so,
but are subjected to the penalties imposed for the commission of a
crime. What is that but class legislation?

Without regard to other and very serious grounds of attack upon the constitutionality of the law under consideration, so far as it relates to the charge against this relator, we are of opinion that the provisions of the statute under which he was held and detained are unconstitutional, and that the order appealed from should be reversed, and the relator discharged from custody.

INGRAHAM and HATCH, JJ., concur. VAN BRUNT, P. J., and LAUGHLIN, J., dissent.

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(89 App. Div. 512.)

ASTORIA HEIGHTS LAND CO. V. CITY OF NEW YORK.

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(Supreme Court, Appellate Division, Second Department. December, 1903.)

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1. JUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENT-NEGLECT OR NONPER

FORMANCE-LIABILITIES.

Where a public improvement is authorized by a legislative enactment (Laws 1890, p. 919, c, 514) which provides for the appointment of commissioners empowered to direct the work, and which makes the owners of land directly benefited bear all the expenses thereof, and which grants to the municipality no power over the improvement, nor imposes on it any duty with reference thereto, the municipality cannot be made liable for any

neglect or nonperformance on the part of the commissioners. 2. SAME.

A public improvement was authorized by Laws 1890, p. 919, c. 514, which provided for the appointment of commissioners empowered to direct the work, and which made the owners of land directly benefited bear all the expenses thereof, and which granted to the municipality no power over the improvement, nor imposed on it any duty with reference thereto. The commissioners failed to complete the work, Thereafter Laws 1893, p. 1447, c. 644, was passed, which provided for the appointment of an improvement commission directed to complete the improvement, and empowered to raise the funds necessary therefor by a requisition on the mayor and council of the municipality for general improvement bonds. Held, that the municipality was liable to the persons benefited by the improvement for the damages sustained by the failure of the improvement

commission to complete the work. 3. SAME.

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Where a public improvement is authorized by a law providing for the appointment of commissioners to direct the work, declaring that the owners of the land directly benefited shall bear all the expenses, and granting to the municipality no power over the improvement, nor imposing on it any duty with reference thereto, the municipality is not liable on any contract made between the commissioners and the property owners affected, nor liable on any contract between the commissioners and the owners which

the law may imply. 4. SAME-REMEDY-RESTRAINING THE COLLECTION OF ASSESSMENTS LEVIED FOR

PUBLIC IMPROVEMENTS.

It was admitted that Laws 1890, p. 919, c. 514, providing for a public improvement, and for appointment of commissioners empowered to direct the work, and making the owners of land directly benefited bear all the expenses thereof, and granting no power over the work to the municipality, nor imposing on it any duty with reference thereto, was valid, and that the awards for damages and assessments for benefits were valid. It appeared that tbe certificates of indebtedness authorized by the act bad been sold. The work contemplated by the act was not completed. A subsequent act (Laws 1893, p. 1447, c, 644) provided for the appointment of a general improvement commission to complete the work, and empowered it to raise the funds necessary therefor by a requisition on the mayor and council of the municipality for general improvement bonds. Held, that the owners of property benefited by the proposed improvement, though damaged by reason of the neglect of the commission and the municipality to complete the work, were not entitled, in a suit against the municipality alone, to enjoin it from collecting the assessments levied on their property for the improvement, but their remedy is by an action in damages. Appeal from Judgment on Report of Referee,

Action by the Astoria Heights Land Company, in behalf of itself and such persons and corporations similarly situated as choose to come in and contribute to the expense of the action, against the city of New

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and 120 New York State Reporter York.

From a judgment, entered on the report of a referee, dismissing the complaint on the merits, plaintiff appeals. Affirmed.

The following is the opinion of Referee Hamilton Odell:

The relief demanded in this action is that certain assessments laid upon plaintiff's property in Long Island City in 1892 be declared illegal and void, and that the defendant be enjoined from collecting the same, and from imposing any penalty for the nonpayment thereof, and from laying any assessment upon the plaintiff's property for the improvement of Grand avenue, in former Long Island City. The action is a novel one, and arises out of facts narrated below.

Chapter 514, p. 919, of the Laws of 1890, is entitled "An act to improve portions of Grand avenue and Main street in Long Island City," viz., "that portion of Grand avenue extending from its junction with Steinway avenue westerly to its junction with Main street, and that portion of Main street extending from its junction with Fulton street westerly to its junction with the Boulevard.” It permitted any three owners of property fronting upon said portions of said avenue and street to make application to the mayor of the city for the appointment of three commissioners, having first given public notice of their intention so to do, and the mayor was required to appoint such commissioners, called "Grand Avenue Inprovement Commissioners,” who were empowered and directed “to open, straighten, widen, and to improve by grading, regulating, sewering, paving, curbing, laying crosswalks, constructing sewers, culverts, basins, waterways and making approaches at street intersections, on said streets, or to make any one or more of such improvements if they shall deem it unnecessary for the public interest to make them all.” They were authorized to apply to the court for the appointment of commissioners of estimate and as: sessment; they were required to advertise for bids for work and material, and to award contracts to the lowest responsible bidders; and by section 7 of the act it was provided that “the cost, or approximate cost, of such improvements, as estimated or ascertained by said commissioners, shall be certified by them to the commissioners of estimate and assessment as soon as practicable after their appointment.” The expenses attending the authorized improvements were to be met in the first instance by the issuance by the commissioners of certificates of indebtedness to be known as “Grand Avenue and Main Street Improvement Certificates,” which should not exceed in amount "the par value of two hundred thousand dollars." They were to be signed by the commissioners, or a majority of them, and countersigned by the treasurer of Long Island City, and might be issued directly in payment of such improvements and expenses, or be sold or negotiated to obtain money to pay therefor, or to pay interest on outstanding certificates, and all moneys realized by the sale thereof were to be forthwith deposited with the treasurer and receiver of taxes of said city. They were to be payable to bearer, were to bear 5 per cent interest, were to be receivable at all times at par and accrued interest in payment of assessments authorized by the act, and were to show upon their face that thes were issued under the provisions of said act. It was provided that upon receiving from the Grand avenue commissioners their certificate of the cost of approximate cost, of the improvement, the commissioners of estimate and assessment should “proceed to open, widen and straighten and improve, as hereby authorized, said streets, or such section or sections thereof as said (Grand avenue] commissioners may from time to time determine upon, and to assess therefor and for the cost of such improvements as so certified,” and that such assessments when confirmed should be a lien upon the property assessed, and various powers were conferred upon the said Grand avenue commissioners, and upon the said commissioners of estimate and assessment, and upon the courts

. *to the end that said streets may be opened, widened, straightened and inproved as herein directed, and that a just and valid assessment may be levied and collected therefor, so that the entire costs, charges and expenses of such opening, widening, straightening and improvement may be defrayed out of and with the proceeds of such assessment, without any cost or expense to the city at large." Section 9 of the act declared that "all moneys received by said treasurer in payment of such assessments, or interest thereon, shall be placed to the credit of the fund to be known as the “Grand Avenue and Main Street

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Improvement Fund,' and shall be kept separate and apart from all other moneys in his hands; and no part thereof shall ever be expended by him except in payment of the interest or for the purchase or redemption of the principal of said Grand avenue and Main street improvement certificates." All assessments not paid within three months should bear interest at the rate of ten per cent. No warrants should be required for the collection of any assessment, or for the sale of any lands for the nonpayment of the assessment or interest. Land upon which there should be three years' interest unpaid on the 1st day of July in any year, or upon which any such assessment or interest should remain unpaid at the expiration of 10 years after such assessment should have been confirmed, etc., "shall, without any action or legislation on the part of the common council, or any other body, be advertised and sold for the payment of such unpaid interest or assessment, or both, as the case may be, and such sale or sales shall be made by the treasurer and receiver of taxes of said city, or by such other officer, if any, as shall then be authorized and empowered by law to sell lands in said city for non-payment of city taxes."

The act above referred to became a law on June 5, 1890, and on June 10tb the mayor was petitioned to appoint commissioners. It is either proved or admitted that, in all the steps taken to carry into effect the purposes of the statute, the provisions of the statute were followed and obeyed. The regularity of the proceedings is not questioned. The commissioners were appointed and duly qualified; they entered upon the duties assumed by them.

They procured the appointment of commissioners of estimate and assessment, who also qualified. They certified to such commissioners the cost, or approximate cost, of the proposed improvements. They entered into a single contract for the entire work. They issued, for value, the full amount of certificates of indebtedness authorized by the act. The commissioners of estimate and assessment made assessments for benefits, and awards for damages. The court duly confirmed their action. The contractor proceeded with the work, and prosecuted it until the spring of 1893, when he was notified to stop by the Grand avenue commissioners, as the certificates and their proceeds were exhausted. At that time much the larger part of the work had been completed. The sewer had been built. The streets had been regulated and graded. The curbing and guttering had been done, with the exception of about one block. The work on Main street was substantially finished. Seven or eight blocks on Grand avenue had not been paved. The sidewalks were not flagged for a distance of about 2,000 feet. The improvement has never been completed. It remains as the contractor left it. The testimony is that the cost of completion would be about $20,500. Whether a part of Grand avenue can be comfortably used, and what the effect of its unfinished condition has been upon the marketability and value of adjacent property, are matters about which witnesses are at odds.

I agree with the learned counsel to the corporation that no liability was imposed upon Long Island City by anything that was done under the act of 1890, or by any failure of the Grand avenue commissioners to complete the improvements which the act authorized, and which they undertook to make. The work was not instituted by the city. The city had no control over it, nor over the commissioners to whom the entire direction and details of the work were committed by the statute. It was not to be done at the city's expense, but at the expense of the owners of land in the locality to be directly benefited. The commissioners were to provide moneys with which to make the improvements by the issuance of certificates of indebtedness, which were not, and did not purport to be, obligations of the city. Moneys received from the sale of such certificates did not become the moneys of the city. Moneys received in payment of assessments did not become the moneys of the city, usable for city purposes, but constituted a special fund for the payment of the certificates, to "be kept separate and apart from all other moneys" and to be applied only to that single purpose. No power was granted to the city, and no duty laid upon it, by any provision of the act. Therefore the city could not be made liable for neglect or nonperformance, Conrad v. Trustees of Ithaca, 16 N. Y. 158, as I read it, is not an authority to the contrary.

In 1893 an act was passed entitled “An act to create a general improvement commission and provide for certain improvements in the highways, streets, avenues, boulevards and public places in Long Island City." Laws 1893, p.

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