peal. No appeal will lie from a mere conclusion of law by the court, or from decisions or rulings on mere questions of practice arising during the progress of the case. This motion and the decision appealed from are of that nature. It is urged that the decision is final against the right to inspect the deed, and that such decision will certainly prejudice the defendant in making its defense. If the decision is wrong, and should have the effect claimed, it would not be different in any respect from an order refusing a continuance or change of venue, or other decision which might prejudice a party to the suit. Whether the refusal of the court has prejudiced the defendant's rights in this case, or injured the defendant in any way, has not yet been determined. The defendant may succeed in the trial of the ejectment suit, and, for aught that we know, the judgment may be in its favor. Whatever the result may be, the order is clearly interlocutory, relating only to a matter of practice in the course of the proceeding, and the appellate court was right in dismissing the appeal. Lester v. Berkowitz, 125 Ill. 307, 17 N. E. 706. The judgment of the appellate court is affirmed. Judgment affirmed.

(185 Ill. 269)

COYNE v. NEWBURG et ux. (Supreme Court of Illinois. April 17, 1900.) APPEAL JUDGMENT OF APPELLATE COURT

REMANDING CAUSE NOT APPEALABLE. A judgment of the appellate court, remanding a case for the foreclosure of a mortgage to the circuit court, "with directions to enter an interlocutory decree referring the cause to a master to state the account, and for such other and further proceedings as to law and justice shall appertain," is not a final judg ment, within the meaning of Prac. Act, § 90, authorizing an appeal from the judgment of the appellate court, if, under the judgment, no further proceeding in the cause can be had in the trial court, except to carry into effect the mandate of the appellate court.

Appeal from appellate court, Second district.

Action by William L. Coyne against John P. Newburg and wife for the foreclosure of a mortgage. Judgment for plaintiff was reversed by the appellate court (85 Ill. App. 74), and plaintiff appeals. Dismissed.

J. T. Kenworthy and S. R. Kenworthy for appellant. Jesse E. Spencer (Sweeney & Walker, of counsel), for appellees.

BOGGS, J. This is a motion by appellees to dismiss an appeal sought to be prosecuted by the appellant, Coyne, from a judgment entered by the appellate court for the second district, reversing and remanding, with directions, a decree of foreclosure rendered in the circuit court of Rock Island county on a bill filed by the appellant, Coyne, against the appellees. The decree of the circuit court was in the sum of $4,551.48, which included the sum of $600 allowed as the fees of the solicit

or for complainant. The answer set up the defense of usury, and that the mortgagors had made payments upon the indebtedness in the aggregate amounting to the full amount of the indebtedness, the alleged usurious exactions being excluded. The appellees filed also a cross bill, setting out the same facts, in substance, as set forth in the answer, and praying that the complainant in the bill should be enjoined from disposing of the notes, and that the notes and mortgage should be canceled. The decree of the circuit court was adverse to the defendants to the bill of foreclosure on the issues arising under their answer and their cross bill. The cross bill was dismissed, and decree of foreclosure entered according to the prayer of the bill.

The judgment of the appellate court, after finding there is error in the decree entered in the circuit court, is as follows: "Therefore it is considered by the court that for that error and others in the record and proceedings aforesaid the decree of the circuit court of Rock Island county in this behalf rendered be reversed, annulled, set aside, and wholly for nothing esteemed, and that this cause be remanded to the said circuit court of Rock Island county, with directions to enter an interlocutory decree referring the cause to a master to state the account, and for such other and further proceedings as to law and justice shall appertain. Interest will be allowed on the original debt to the time when usury was first taken, at the contract rate, and after that at 6 per cent. to July 1, 1891, and at 5 per cent. since that date. But as to rents of other lands, if any, which may have been included in the mortgage in suit, interest thereon will be allowed at whatever rate was contracted for between the parties as to such rent." The appellate court overruled the motion of the appellant, Coyne, for leave to remit the excess above $200 of the amount allowed by the decree for solicitor's fees. Appellees insist this judgment is not a final judgment, and that for that reason the appeal should be dismissed. Section 90 of the prac tice act authorizes an appeal from the judgment of the appellate court, if, under the judgment, no further proceeding in the cause can be had in the trial court except to carry into effect the mandate of the appellate court. Appellant insists the judgment of the appellate court is of that character, and that it is an appealable judgment. We think not. If the cause, under the remanding order, be redocketed in the trial court, and thus comes before the chancellor for disposition, the chancellor will look to the opinion of the appellate court in order to be advised as to the law of the case, and to the judgment entered by the appellate court in order to be advised as to the terms and conditions of the remanding order. He will find the law of the case as to the allowance of solicitor's fees expressed in the opinion of the court as follows: "We think it was error to allow $600 for solicitor's fees, under the pleadings in the case. The

bill only claimed $200, and alleged that was a reasonable fee. There was no amendment to the bill, and on what principle a complainant is entitled to recover three times the amount he claims in his bill we are at a loss to see. We do not determine the question as to whether or not the fee was reasonable for the services rendered by the solicitors, aside from the allegations of the bill. What we hold is that, the bill only claiming $200, it was error to allow a greater sum without amendment." No specific directions with relation to the course to be pursued as to the issue on the question of solicitor's fees are found incorporated in the judgment of the appellate court. The direction of the judgment is not only that the chancellor shall enter an interlocutory decree referring the cause to a master to state the account, but also that the cause is remanded "for such other and further proceedings as to law and justice shall appertain." In the absence of any specific directions as to the course to be pursued with relation to the matter of the solicitor's fees, the chancellor would properly regard the cause as open upon that question for "such proceedings as to law and justice should appertain," and would, if requested, permit such amendments to be made to the bill as might be necessary to give application to the evidence found in the record upon that point. This might necessitate the granting of leave to amend the answer of the defendants, and also their cross bill, in respect of the question of solicitor's fees. The chancellor then, in obedience to the specific directions found in the judgment, would enter an interlocutory decree referring the cause to a master, and would incorporate in such interlocutory decree the directions found in the judgment of the appellate court as to the rate and manner of computation of interest on the original debt, and would also give directions to the master to ascertain if amounts due for the rents of other lands had been included in the mortgage debt, and, if he found such rents had been so included, to compute interest on such amounts at the rate it should appear from the evidence had been contracted for between the parties as to such amounts for rents. On the coming in of the report of the master it would be the duty of the court to judicially hear and determine any exceptions preserved thereto, and to judicially review and determine the correctness of the account so stated by the master in view of the evidence upon which it was based, and then to render such decree as the account stated by the master, as finally revised by the court, should warrant. The decree which would follow might be a decree of foreclosure, as prayed in the original bill, but for an amount greater or less than the decree first rendered in the cause, or a decree for the cancellation of the notes and mortgage, as prayed in the cross bill. It is, therefore, apparent the judgment of the appellate court is not such that no further proceedings can be had

in the court below except to carry into effect the mandate of the appellate court. In order that an appeal may be prosecuted from a judgment of the appellate court to this court, the judgment of the appellate court must be either that the decree of the trial court is affirmed, or that final judgment is rendered in the appellate court, or that the judgment or decree of the appellate court is such that no further proceedings can be had in the court below except to carry into effect the mandate of the appellate court. Starr & C. Ann. St. 1896, c. 110, par. 91. The judgment of the appellate court sought here to be appealed from does not fall within either of the classes of judgments permitted by the statute to be brought into this court by appeal. The motion to dismiss the appeal is granted. Appeal dismissed.

(185 Ill. 133)

RUHSTRAT v. PEOPLE. (Supreme Court of Illinois. April 17, 1900.)

CONSTITUTIONAL LAW-PERSONAL LIBERTYADVERTISING BUSINESS USE OF FLAG POLICE POWER-PRIVILEGES OF CITIZENS

DISCRIMINATION.

1. The constitutional right of every citizen to choose his occupation includes the right to advertise it in a legitimate way, and Act April 22, 1899, prohibiting the use of the national flag for such purpose, unduly interferes with personal liberty, unless thereby the public health, safety, welfare, or comfort is conserved. 2. Act April 22. 1899, prohibiting the use of the national flag or emblem for commercial purposes or as an advertising medium, and imposing a penalty for its violation, does not tend to promote the health, safety, welfare, or comfort of society, so as to be a proper exercise of the police power.

3. The right to use or display the national flag is a privilege of a citizen of the United States, and Act April 22, 1899, prohibiting its use for advertising purposes, thereby abridges the privileges and immunities of a citizen of the United States guarantied by the fourteenth amendment to the federal constitution.

4. Act April 22, 1899. prohibiting the use of the national flag for commercial purposes or as an advertising medium, and excepting from its provisions those engaged in public or private exhibitions of art, is unconstitutional, as unduly discriminating in favor of a class.

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

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

A. Rubstrat was convicted of violating Act April 22, 1899, prohibiting the use of the national flag for commercial or advertising purReversed. poses, and brings error.

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 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 persons violating 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 over

ruled. 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 support 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.

Hofheimer & Pflaum, for plaintiff in error. Charles S. Deneen, State's Atty., and F. L. Barnett, Asst. State's Atty., for the People.

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 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 consent of the governed." Section 2 is as follows: "No person shall be deprived of life, liberty or property without due process of law." Section 4 of the same article provides that "every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty," etc. Section 1 of article 14 of the amendments to the constitution of the United States is as follows: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof. are citizens of the United States and of the state wherein they reside. No state shall

make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The expression, "life, liberty, and the pursuit of happiness," is general in its character, and includes many rights which are inherent and inalienable. Many of the rights referred to in this expression are included in the general guaranty of "liberty." The happiness here referred to may consist in many things or depend on many circumstances, but it unquestionably includes the right of the citizen to follow his individual preference in the choice of an occupation. Black, Const. Law, p. 404. "The right of every man to choose his own occupation, profession, or employment, though not expressly guarantied by the constitutions, is included in the right to the pursuit of happiness." Id. p. 411.

In Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253, the general proposition that the enjoyment by the citizen, upon terms of equality with all others in similar circumstances, of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, is a general part of his rights of liberty and property as guarantied by the fourteenth amendment, was assented to by the supreme court of the United States as embodying a sound principle of constitutional law. In the latter case it was also held that, although the power and discretion which a state legislature has in the matter of promoting the general welfare and of employing means to that end are very large, yet such power must be so exercised as not to impair the fundamental rights of life, liberty, and property. In Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832, it was said: "The right to follow any of the common occupations of life is an inalienable right. It was formulated as such in the phrase 'pursuit of happiness' in the Declaration of Independence, which commenced with the fundamental proposition that 'all men are created equal, that they are endowed by their Creator with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness.' This right is a large ingredient in the civil liberty of the citizen." It was also said in this case that "the liberty of pursuit-the right to follow any of the ordinary callings of life is one of the privileges of a citizen of the United States." It was also there said: "If it does not abridge the privileges and immunities of a citizen of the United States to prohibit him from pursuing his chosen calling, and giving to others the exclusive right of pursuing it, it certainly does deprive him (to a certain extent) of his liberty; for it takes from him the freedom of adopting and following the pursuit which he prefers, which,

as already intimated, is a material part of the liberty of the citizen." Butchers' Union Slaughter-House Co. v. Crescent City LiveStock Landing Co., 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585. In Braceville Coal Co. v. People, 147 Ill. 66, 35 N. E. 62, 22 L. R. A. 340, we said (page 71, 147 Ill., page 63, 35 N. E., and page 342, 22 L. R. A.): "'Liberty,' as that term is used in the constitution, means not only freedom of the citizen from servitude and restraint, but is deemed to embrace the right of every man to be free in the use of his powers and faculties, and to adopt and pursue such avocation or calling as he may choose, subject only to the restraints necessary to secure the common welfare." Frorer v. People, 141 Ill. 171, 31 N. E. 395, 16 L. R. A. 492; Com. v. Perry, 155 Mass. 117, 28 N. E. 1126, 14 L. R. A. 325; People v. Gillson, 109 N. Y. 389, 17 N. E. 343; Live-Stock Dealers' & Butchers' Ass'n v. Crescent City Live-Stock Landing & SlaughterHouse Co., 1 Abb. U. S. 388, Fed. Cas. No. 8,408; Slaughter-House Cases, 16 Wall. 36. 21 L. Ed. 394; Goodcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. 354; State v. Goodwill, 33 W. Va. 179, 10 S. E. 285, 6 L. R. A. 621.

ness.

The plaintiff in error was engaged in the wholesale and retail cigar business. This was certainly a lawful and respectable busiUnder the authorities referred to and under the interpretation of the constitution there made, plaintiff in error had not only the right to choose the business in which he was engaged as his occupation, but he had the right to pursue and carry on that business in any way and by any methods which were lawful and proper. Included in "the right to choose one's occupation is the right to be free from unlawful interference or control in the conduct of it." Black, Const. Law, p. 412. In these days of commercial enterprise, advertising is an important factor in business pursuits. It cannot be denied that the plaintiff in error had a right to advertise his business in any legitimate manner, so as to attract the attention of the public. Nor can it be denied that the plaintiff in error had the right to design and make use of a trade-mark. The use of trade-marks is as old as commerce itself. The conventional trade-mark is a part of what is called "the symbolism of commerce." Browne, TradeMarks (2d Ed.) §§ 1, 26. It is allowable to use a picture as a trade-mark, and a picture made up of many objects in many colors may be a trade-mark. Id. §§ 258. 259. Browne. in his work on Trade-Marks (section 265), says: "Color may be of the essence of a mark of manufacture or commerce, known as a 'trade-mark.' 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." The right of the citizen to pursue the calling which he has chosen, and to advertise his business in a legitimate way by the use of labels or trade-marks, is not improperly exercised by making a picture of the national flag a part of such labels or trade-marks, unless thereby the public safety, welfare, or comfort is interfered with.

It is claimed on the part of the people that the flag law in question was enacted by the state legislature in the exercise of its police powers. The law is justified upon the alleged ground that it is an enactment under and by virtue of the police power of the state, and that, being enacted under and by virtue of that power, the courts cannot exercise a supervision over the wisdom and judgment of the legislature in its passage. It is claimed that the law tends to elevate the morals and promote the welfare of the public, and that, as such, it is a valid exercise of legislative power. The police power is limited to enactments which have reference to the public health or comfort, the safety or welfare, of society. Laws which impose penalties on persons and interfere with the personal liberty of the citizen cannot be constitutionally enacted, unless the public health, comfort, safety, or welfare demands their enactment. It is for the legislature to determine when an exigency exists for the exercise of this power, but what are the subjects of its exercise is clearly a judicial question. The exercise of legislative discretion is not subject to review by the courts when measures adopted by the legislature are calculated to protect the public health and secure the public comfort, safety, or welfare; but the measures so adopted must have some relation to the ends thus specified. Ritchie v. People, 155 Ill. 98, 40 N. E. 454, 29 L. R. A. 79. The legislature has no power, under the guise of police regulations, to arbitrarily invade the personal rights and personal liberty of the individual citizen. Its determination upon this question is not final or conclusive. If it pass an act ostensibly in the exercise of the police power, but which in fact interferes unnecessarily with the personal liberty of the citizen, the courts have a right to examine the act, and see whether it relates to the objects which the exercise of the police power is designed to secure, and whether it is appropriate for the promotion of such objects. When the police power is exerted for the purpose of regulating a useful business or occupation, and the mode in which that business may be carried on or advertised, the legislature is not the exclusive judge as to what is a reasonable and just restraint upon the constitutional right of the citizen to pursue his calling, and to exercise his own judgment as to

the manner of conducting it. The general right of every person to pursue any calling, and to do so in his own way, provided that he does not encroach upon the rights of others, cannot be taken away from him by legislative enactment. Tied. Lim. § 3; In re Jacobs, 98 N. Y. 108; People v. Gillson, supra; Cooley, Const. Lim. (6th Ed.) pp. 606, 607, 744; Ex parte Whitwell, 32 Pac. 872, 98 Cal. 73, 19 L. R. A. 727; Frorer v. People, supra; Town of Lake View v. Rose Hill Cemetery Co, 70 Ill. 191; Ritchie v. People, supra. In Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, it was said: "If, therefore, a statute, purporting to have been enacted to protect the public health, the public morals. or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts so to adjudge, and thereby give effect to the constitution." In Eden v. People, 161 Ill. 296, 43 N. E. 1108, 32 L. R. A. €59, we said (page 308, 161 Ill., page 1110, 43 N. E., and page 663, 32 L. R. A.): "If the act were one calculated to promote the health, comfort, safety, and welfare of society, then it might be regarded as an exercise of the police power of the state. In Toledo, W. & W. Ry. Co. v. City of Jacksonville, 67 Ill. 37, it was held that, if the law prohibits that which is harmless in itself, or requires that to be done which does not tend to promote the health, comfort, safety, or welfare of society, it will in such case be an unauthorized exercise of power, and it will be the duty of the courts to declare such legislation void."

It is difficult to see how the flag law of April 22, 1899, tends in any way to promote the safety, welfare, or comfort of society. The use of a likeness of the flag upon a label or as part of the trade-mark of a business man in the lawful prosecution of his business cannot be regarded otherwise than as an act which is harmless in itself. It may violate

the ideas which some people have of sentiment and taste, but the propriety of an act, considered merely from the standpoint of sentiment and taste, may be a matter about which men of equal honesty and patriotism may differ. The act in question is severe in its terms. It makes it the duty of the state's attorney to prosecute all persons guilty of a violation of the provisions of the act, and makes it the duty of sheriffs, deputy sheriffs, constables, and police officers to inform against all persons "whom there is probable cause to believe are guilty of violating the provisions of this act. One-half 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.

* Any persons violating

the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by a fine of not less