than $10.00, nor more than $100.00 and costs, and in default of payment of said fine and costs imposed shall be imprisoned in the county jail," etc. What is the offense for which these penalties are imposed? The using or displaying of the national flag or emblem, or any drawing or likeness of the same, "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" so using or displaying the same. Section 2 of the act provides that the use of the national flag or emblem for patriotic purposes shall not in any way be restricted. It is not altogether clear that a person might not make use of or display the national flag or emblem for a purpose intended to promote his own interests, and yet, at the same time, for an entirely patriotic purpose. It is not clear that the prohibition, leveled against the use or display of the flag, tends in any way to elevate the morals or promote the welfare of the public.

The flag is used, in the prosecution of commerce upon the high seas, as a symbol of nationality. The nationality of a ship is determined by the flag which it carries. A ship, navigating under the flag and pass of a foreign country, is to be considered as bearing the national character of the country under whose flag she sails. Under what is called in international law "the law of the flag." a shipowner who sends his vessel into a foreign port gives notice by his flag to all who enter into contracts with the shipmaster that he intends the law of that flag to regulate those contracts, and that they must either submit to its operation or not contract with him or his agent at all. 1 Bouv. Law Dict. (Rawle's Rev.) pp. 799, 800. It is a doctrine of international law that a ship becomes hostile so soon as she hoists the enemy's flag; and, while the cargo of the ship does not necessarily take character from the flag, yet the general rule is that the goods under such flag follow the fate of the vessel. 11 Am. & Eng. Enc. Law, p. 480, note 3. It is difficult to see why, if, in the prosecution of foreign commerce or trade, the flag is used to protect a ship and cargo and designate its character, it should be a desecration of the same flag to use a likeness of it upon a label or trade-mark in the prosecution of domestic trade or business.

A flag is emblematic of the sovereignty of the power which adopts it. The American flag is emblematic of the sovereignty of the United States. Congress, by sections 1791 and 1792 of the Revised Statutes of the United States, has provided as follows: "The flag of the United States shall be thirteen borizontal stripes, alternate red and white; and the union of the flag shall be thirtyseven stars, white in a blue field. On the admission of a new state into the Union, one star shall be added to the union of the flag;

and such addition shall take effect on the fourth day of July then next succeeding said admission." In Collector v. Day, 11 Wall. 113, 20 L. Ed. 122, it was said: "The general government and the states, although both exist within the same territorial limits. are separate and distinct sovereignties, acting separately and independently of each other within their respective spheres. The former in its appropriate sphere is supreme; but the states within the limits of their powers not granted, or, in the language of the tenth amendment, 'reserved,' are as independent of the general government as that government within its sphere is independent of the states." The state of Illinois has never adopted a flag emblematic of its sovereignty. The flag is the flag of the United States as a sovereignty. The United States, acting through its congress, has adopted a flag emblematic of national sovereignty. Presumably, the national flag was adopted for the use of the citizens of the United States. There is a difference between the privileges and immunities belonging to the citizens of the United States as such, and those belonging to the citizens of each state as such. The privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the national government, the provisions of its constitution, or its laws and treaties made in pursuance thereof; and it is these rights which are placed under the protection of congress by the fourteenth amendment. People v. Loeffler, 175 Ill. 585. 51 N. E. 785; Slaughter-House Cases, 16 Wall. 36, 21 L. Ed. 394. The right to use or display the flag would seem to be a privilege of a citizen of the United States, rather than the privilege of a citizen of any one of the states. The national government, in the exercise of its inherent power to establish a flag or emblem symbolic of national sovereignty, has passed sections 1791 and 1792, above referred to, and has thereby taken jurisdiction of the subject-matter of a national flag, and has legislated upon it. Congress has passed no legislation restricting the use of the flag, or confining its use to any particular purpose. It would seem that, if it had been the intention of congress to restrict or confine such use, some provision to that effect would have been embodied in the act prescribing and describing the national flag.

The use of the flag of the United States, as embodied in advertising sheets and placards and labels, and in common-law trademarks, has received the unqualified approval of the whole commercial world. It has also received the sanction of those having in charge the execution of the trade-mark laws of the United States. The usage and practice of employing a flag for commercial purposes have been indulged in by citizens of the United States with the knowledge of the national government. The absence of congressional prohibition against the usage and

practice thus indulged in with the knowledge of the general government has created a "privilege" in the citizen of the United States to continue such use until withdrawn by the competent authority. An act of legislation, passed by a particular state, which deprives the citizen of such privilege, contravenes that clause of the amendment to the national constitution which forbids any state to abridge the privileges and immunities of a citizen of the United States. If the state legislature can restrict the use of the national flag, and permit its use for one purpose and prohibit its use for another purpose, it would have the right to prohibit its use altogether within the limits of the state. But it cannot be pretended that the state of Illinois has authority to prohibit the use of the national flag altogether. It necessarily follows that it has no authority to prohibit its use for certain purposes. We are of the opinion that this law is unconstitutional, not only as infringing upon the personal liberty guarantied to the citizen by both the federal and state constitutions, but also as depriving a citizen of the United States of the right of exercising a privilege impliedly, if not expressly, granted to him by the federal constitution.

The act is also unduly discriminating and partial in its character. It exempts from penalties imposed by the act persons who may choose to make use of the national flag or emblem for either public or private exhibitions of art. The exhibitor who engages in public or private exhibitions of art may do so, not merely for the public benefit, but for the promotion of his own interests. By thus excluding artists or exhibitors from the inhibitions of section 1 of the act, the act thereby creates a class or classes of persons who are exempted from the penalties embraced therein. Legislation of this kind has frequently been condemned by the courts in this country. The legislature clearly has no power to deny to plaintiff in error the right to use the national flag o advertise his business, or, in other words. to deny to all persons following particular occupations the right to use the national flag, and at the same time to permit artists or art exhibitors to use the same. The manner in which the act thus discriminates in favor of one class of occupations and against all others places it in opposition to the constitutional guaranties hereinbefore referred to. Millett v. People, 117 Ill. 294, 7 N. E. 631; Ritchie v. People, 155 Ill. 98, 40 N. E. 454, 29 L. R. A. 79.

For the reasons herein set forth, the judgment of the criminal court of Cook county is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed. Reversed and remanded.

CARTWRIGHT. C. J., and WILKIN and CARTER, JJ., dissent.

(24 Ind. App. 543)

GROTIUS v. ROSS.

(Appellate Court of Indiana. April 24, 1900.)

LIBEL AND SLANDER-EVIDENCE-VARIANCEHARMLESS ERROR-INSTRUC

TION-DAMAGES.

1. Evidence, in an action for slander, that defendant, in speaking the slanderous words, designated the person spoken of as "one of his neighbors, his brother-in- law,"-without naming any one, is insufficient to show that the slanderous words were spoken of the plaintiff, where there is no allegation that the words "neighbor" or "brother-in-law" were used by defendant, and no evidence that plaintiff was his only brother-in-law.

2. A complaint in an action for slander failed to allege that the slanderous words were spoken in a foreign language. Evidence that defendant repeated some of the slanderous words in a foreign language was admitted only for the purpose of showing malice. Held, under Burns' Rev. St. 1894, § 394 (Horner's Rev. St. 1897, § 391), providing that no variance shall be deemed material unless it shall have misled an adverse party, that it was not reversible error to admit the evidence, where it did not appear that the defendant was misled to his prejudice.

3. An instruction in an action for slander that the jury, in assessing damages, should consider the expense to which plaintiff has been put by being compelled to vindicate his character, is improper, since such expense may include counsel fees.

Appeal from circuit court, Vanderburg county; H. A. Mattison, Judge.

Action by Gustave Ross against Charles Grotius. From a judgment for plaintiff, and an order overruling a motion for a new trial, defendant appeals. Reversed.

W. W. Ireland and H. Clements, for appellant. Wm. Reister and Leroy M. Wade, for appellee.

COMSTOCK, J. Appellee instituted this action in the Posey circuit court against the appellant for slander. Upon change of venue, it was tried in the Vanderburg circuit court. The complaint was in three paragraphs, to which appellant answered by general denial. A trial by jury resulted in a verdict and judgment in favor of appellee for $800. The only error assigned is the action of the court in overruling appellant's motion for a new trial. The slanderous words in each paragraph charge larceny.

The refusal of the court to strike out the testimony of John Trenor, a witness in behalf of appellee, is made the fifth reason for a new trial. This witness testified that he was acquainted with the defendant; that he heard him say that one of his neighbors-his brother-in-law-had been stealing chickens; that Dr. Smith had picked out some shot; that he did not remember that appellant gave any name; and that he (witness) did not know appellee, and did not know that he was the brother-in-law of appellant, until after the commencement of the suit. There is no allegation in either paragraph of the complaint that appellant, in speaking the slanderous words, used the word "neighbor" or "brother

in-law." While it is not necessary to prove the precise words charged in the complaint, it is necessary to prove that the defendant spoke words substantially as alleged. Gray v. Elzroth, 10 Ind. App. 593, 37 N. E. 551, and authorities there cited. There is no evidence that appellee was the only brother-in-law of appellant. The complaint alleged a charge of larceny against the appellee, Ross. This evidence does not tend to support that charge. The motion to strike it out should have been sustained.

Counsel for appellant insist that it was error to permit the witness Frank Kissel, a witness for appellee, to testify to a conversation with appellant in which appellant stated in German that appellee was shot by one Endcott while he was stealing his chickens. This is made the ninth and tenth reasons in the motion for a new trial. It is claimed that, the complaint not alleging the speaking of the slanderous words in German, it will be presumed that they were spoken in English; that, the proof being that they were spoken in German, there is a variance between the allegations and the proof. The claim of variance must be allowed. Kerschbaugher v. Slusser, 12 Ind. 452. In admitting the testimony, however, the court stated that it was admitted only for the purpose of showing malice or feeling, and not to prove the cause of action. Conceding the variance claimed, this ruling of the court would not be reversible error, unless it should appear that appellant had been actually misled to his prejudice by such variance. Section 394, Burns' Rev. St. 1894 (section 391, Horner's Rev. St. 1897), reads as follows: "No variance between the allegations in a pleading and the proof is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must be shown in what respect he has been misled; and, thereupon, the court may order the pleading to be amended on such terms as may be just." It does not appear that appellant was misled.

Counsel next discuss reason 34 for a new trial, which was the giving to the jury by the court, of its own motion, instruction No. 16. In this instruction the jury were instructed as to the measure of damages. The part objected to directed the jury to consider the expense to which plaintiff had been put by being compelled to come into court to vindicate his character. The objections specified are (1) that this instruction designates an improper element of damages; and (2) that there was no evidence to warrant the instruction. We are of the opinion that the court erred in giving this instruction. Expenses may include counsel fees. It is said in Newspaper Co. v. Pugh, 6 Ind. App. 529, 33 N. E. 991: "Expenses may include counsel fees. If so, it is not stated that such only could be recovered

as were reasonably necessary; and we see no reason why, under the instructions, the appellee would not have the right to employ a score of attorneys, at any price, and be compelled to pay them fees, whatever they might be in amount." In the same opinion it is stated: "As a general rule, in actions of tort, counsel fees are not recoverable, except in cases of malicious prosecution." In Hicks v. Foster, 13 Barb. 663,-an action for slander,-an instruction in the language of the instruction in question was held to be improper. It is a well-reasoned case, citing numerous decisions, and is cited with approval in Newspaper Co. v. Pugh, supra. In support of this action of the trial court, counsel for appellee refer us to decisions holding that in actions for malicious prosecution the plaintiff may be allowed as damages necessary expenses, including attorney's fees, to which he has been subjected on account of the prosecution. In such case the victim of a malicious prosecution is compelled to vindicate his character in the court. These authorities are not in point.

The only other error claimed, discussed by appellant's counsel, may not arise upon another trial. We do not, therefore, consider it.

Counsel for appellee have argued at length that no questions are presented by this appeal, for the reason that neither the evidence nor the instructions of the court are properly in the record. A careful examination of the record leads us to the conclusion that this position of counsel cannot be sustained. Judgment reversed, with instruction to the trial court to sustain appellant's motion for a new trial.

(24 Ind. App. 547)

CLEVELAND, C., C. & ST. L. RY. CO. v. O'BRIEN.

(Appellate Court of Indiana. April 25, 1900.) MUNICIPAL CORPORATIONS-STREET IMPROVEMENTS ASSESSMENT INSUFFICIENT DESCRIPTION-CREATION OF LIEN-COMPLAINT -CURING DEFECTS-VARIANCE.

1. An assessment for street improvements was made by a city under Burns' Rev. St. 1894, §§ 4293, 4294, requiring a report of the full description of each lot of ground bordering on the street improved, and providing for the assessment to be a lien on each lot, and the basis of an action to enforce the lien. Such assessment described property as 65.65 feet of right of way of a certain railway company. The right of way of such company extended through the city and many miles. Held, that such assessment did not sufficiently describe any property to create a lien thereon.

2. An insufficient description of property in an assessment by a city for street improvements against a railway company's right of way was not cured by a sufficient description of such property in the complaint to enforce the lien sought to be created thereby.

Appeal from circuit court, Madison county; J. F. McClure, Judge.

Action by Patrick T. O'Brien against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Lovett & Holloway and John T. Dye, for appellant.

Greenlee & Call, for appellee.

WILEY, C. J. This is an action by appellee against appellant to enforce a statutory lien upon a portion of appellant's right of way in the city of Alexandria for a street improvement assessment. A demurrer to the complaint was overruled, an answer in denial, and a finding and judgment for appellee. Appellant's motion for a new trial was overruled, and these adverse rulings are assigned as errors. Several objections are urged to the complaint, but the one to which the principal argument is addressed is that the description of the property assessed, as shown by the assessment roll, which is made an exhibit to the complaint, is wholly insufficient. If appellant's objections to the complaint for this reason are well grounded, other questions presented need not be noticed. The final estimate of the cost of the improvement was made by the engineer, and the assessments made against the abutting property were approved and confirmed by the common council. In the final estimate of the engineer is this statement: "The following is the final estimate of the cost and expense, at the contract price of the improvement by Patrick T. O'Brien, of Church street, of said city, from the west line of Harrison street to the C., C., C. & St. L. Ry. Co.'s right of way." The final estimate shows the total cost of the improvement, its length, and the average cost per running front foot. Appended to the final estimate is a list of property owners, the number of front feet owned by each, the amount due on each lot or parcel of land, and what purports to be "a full description, together with the owner's name, of each lot or parcel of ground bordering on said part of said street so improved." That part of the assessment roll which attempts to describe the real estate owned by appellant, and by which it is sought to create a liability against it, is as follows:

lect the amount due him by virtue of the lien in the way of a personal judgment. In that case, Reinhard, J., speaking for the court, said: "The fact, however, that this remedy may, in proper instances, be invoked, will not change the character of the action from one in rem to one in personam. The lien is still the only basis of the right of action, and in an action to enforce his rights under such lien the plaintiff is required to show, not only that he has a lien, but also that he would be entitled to a decree foreclosing the same, except for the fact that it is upon railroad property, the sale of which might interfere with the rights of the parties." Section 4293, Burns' Rev. St. 1894, provides that, when any such street improvement has been completed, a final estimate shall be made by the engineer, and, among other things, such engineer is required to report "the full description, together with the owner's name of each lot or parcel of ground bordering on said street so improved," and the "amount of such cost for improvement due upon each lot or parcel of ground," etc. The amount so found and reported by the engineer, if approved by the common council (section 4294, supra), is assessed against each lot or parcel of ground, and such assessment creates a lien, and is the basis of an action to enforce such lien. Being the basis of the action, a copy of such assessment must be filed with the complaint as an exhibit. Vansickle v. Belknap, 129 Ind. 558, 28 N. E. 305; City of Terre Haute v. Mack, 139 Ind. 99, 38 N. E. 468; Sloan v. Faurot, 11 Ind. App. 689, 39 N. E. 539. The assessment, to constitute such lien, must describe the real estate with sufficient accuracy so that it may be definitely located. In this case the complaint describes by metes and bounds a parcel of ground referred to as the "right of way" of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and, as we have seen, refers to the final estimate and assessment against appellant's "right of way," copies of which are filed as

We do not deem it necessary to refer to the complaint at any length, as the argument is largely directed to the alleged insufficiency of the description of the property, as shown by the assessment roll. In the case of Railroad Co. v. Walters, 9 Ind. App. 684, 37 N. E. 295, the nature of this class of actions was discussed, in which it was held that, though the action was in rem, it would be contrary to public policy to decree the sale of the specific property, and that the lienholder might col

$3.863

$253 61

$253 61

exhibits. Counsel for appellee do not contend that the assessment, as shown by the exhibits, sufficiently describes the real estate so as to create a lien, but argue that a correct descrip-. tion is given in the complaint, and that this cures the defect. This position is not tenable. The lien is not acquired by the averments of the complaint. As we have seen, the assessment is the basis of the action, and, as made and approved, is a written instrument. The rule prevails that, where a cause

of action is founded upon a written instrument, and there is a variance between a copy of it filed with the pleading as an exhibit and the statements of the pleading, the exhibit will control. Goodbub v. Scheller, 3 Ind. App. 318, 29 N. E. 610; Gas Co. v. Moore, 8 Ind. App. 482, 36 N. E. 46; Dunlap v. Eden, 15 Ind. App. 575, 44 N. E. 560; Insurance Co. v. Reid, 19 Ind. App. 203, 47 N. E. 947, 49 N. E. 291; Deposit Co. v. Lackey, 149 Ind. 10, 48 N. E. 254. So that the assessment, as made and confirmed, which shows in itself that the property described is merely the "right of way" of appellant, is not aided by the averments of the complaint.

This court, in the case of Railroad Co. v. Walters, 9 Ind. App. 684, 37 N. E. 295, had the exact question here before it, and held that the description of the property was so indefinite and uncertain that no lien was created. There the assessment roll, as made by the engineer, showed the following:

In the decision of that case the court said: "The assessment should not be held void or invalid if it sufficiently identifies the land so that it might be found and located by a competent surveyor. We are unable, however, to see how it could be located, or its correct description arrived at, from the description given in the assessment, by any means known to the science of surveying. Tract of land, north side, between Front St. and O. & M. R. R.,' does not describe any tract of land, nor does it furnish any data from which its true description might be ascertained. does not fix any starting point. It gives no metes and bounds, and furnishes no means of identification. The maxim, 'Certum est quod certum reddi potest,' is not applicable here, for the reason that there is no means of mak57 N.E.-4

It

We

ing certain that which is so uncertain and Indefinite. The rule only applies where there is some means, either by computation, measurement, or the science of surveying, that what is uncertain may be made certain. It has been held that the property assessed must be so described that a person acquainted with surveying could find and identify it. Yeakel v. City of Lafayette, 48 Ind. 116; Railroad Co. v. Hanna, 68 Ind. 562. It is evident from the description of the property in the case at bar that even an expert surveyor could not find and identify it." There is no definite description of the property assessed; in fact there is no description at all. The owner's nane is given as the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. know as a matter of common knowledge that this railway company owns many miles of railroad in this state, and that one of its branches runs entirely through the city of Alexandria and Madison county. We know also that it owns many miles of right of way. So it is evident that 65.65 feet of its right of way, as here described, is not a sufficient description by which to make an assessment and create a lien. From these authorities, we see no escape from the conclusion that the complaint now before us is fatally defective. Having reached this conclusion, it is unnecessary to decide the questions presented by the motion for a new trial. Judgment reversed, with instruction to the court below to sustain appellant's motion for a new trial, and to sus tain its demurrer to the complaint.

(24 Ind. App. 556)

CITIZENS' ST. R. CO. v. WAGNER. (Appellate Court of Indiana. April 26, 1900.) STREET RAILROADS-ACTION FOR INJURIESPLEADING-CONTRIBUTORY NEGLIGENCE.

A complaint in an action against a street railroad alleged that plaintiff signaled the motorman to stop the car; that its speed was greatly slackened, so that, when it reached the place where plaintiff was standing, it was running very slowly; that he took hold of the handle of the car and attempted to step on the car; and that suddenly the motorman negligently and carelessly started the car, without any warning or notice, and without any fault or negligence on plaintiff's part, thereby throwing him to the ground and causing the injuries described. Held, that the complaint is demurrable, as not alleging that plaintiff was free from contributory negligence, since it does not allege that he was without fault in attempting to board the car while it was moving, even though slowly, or that he was free from negligence in the manner in which he took hold of the handle.

Appeal from superior court, Marion county: Vinson Carter, Judge.

Action by John Wagner against the Citi zens' Street-Railroad Company to recover for personal injuries. From a judgment in Refavor of plaintiff, defendant appeals. versed.

F. Winter and W. H. Latta, for appellant. John O. Spahr and John H. Kingsbury, for appellee.