Letter to the Utah State Tax Commission

Michelle A. Alig

Assistant Attorney General

160 E. 300 S., 5th Floor

P.O. Box 140874

Salt Lake City, Utah   84114-0874

Ms. Alig,

Title 26 Chapter 1, Subchapter A, Part 1

§1.1-1   Income tax on individuals.

(a) General rule. (1) Section 1 of the Code imposes an income tax on the income of every individual who is a citizen or resident of the United States . . . .

(c) Who is a citizen. Every person born or naturalized in the United States and subject to its jurisdiction is a citizen.

MEMORANDUM AND NOTICE OF LACK OF FEDERAL AND STATE JURISDICTION

As you read through this, I would assume that you might cast this off as what the legal profession call these principles now presented as a defense, “frivolous”.  It tells me that one does not know how to answer the questions, taking the back door out.  It would be my hope that you read this with an open mind.  After all, we are looking for the truth, aren’t we?

The principles that I briefly mentioned in our conference the other day, are common-law principles.  I know that the legal profession has abolished the common law in the State of Utah.  However, the federal government has not done so.  Therefore, and since the State of Utah has, according to your reasoning, adopted the structure of the Internal Revenue Code, the State is compelled to respect Supreme Court decisions concerning those common law principles on taxation and conform to its decisions accordingly.  When the State of Utah incorporates the IR Code it takes the title “lock, stock and barrel” all that the civil law requires.

As directed by Internal Revenue Rulings by IR Handbook 4.2, Chapter 7: 7.2.9.8 (1)(05-14-99), now located in the Internal Revenue Manual at 4.10.7: Issue Resolution; Part 4. Examining Process 4.10.7.2.9.8  (01-01-2006); Importance of Court Decisions:

1. Decisions made at various levels of the court system are considered to be interpretations of tax laws and may be used by either examiners or taxpayers to support a position.

2.Certain court cases lend more weight to a position than others. A case decided by the U.S. Supreme Court becomes the law of the land and takes precedence over decisions of lower courts. The Internal Revenue Service must follow Supreme Court decisions. For examiners, Supreme Court decisions have the same weight as the Code.

3.Decisions made by lower courts, such as Tax Court, District Courts, or Claims Court, are binding on the Service only for the particular taxpayer and the years litigated. Adverse decisions of lower courts do not require the Service to alter its position for other taxpayers.

Inasmuch as the Revenue Manual states that I can use Supreme Court decisions to support my position, I have done so in developing my position and the Tax Commission must respect it.  “And if the doctrine of stare decisis has any meaning at all, it requires that people in their everyday affairs be able to rely on our decisions, and not be needlessly penalized for such reliance.”  (Justice Marshall, U.S. v. Mason, 412 U.S. 391, 399 [1973)

I mentioned areas of importance, sovereignty of the people, delegation of authority and territorial jurisdiction and federal legislation.  However, there are more, one being the sacred nature of individual natural rights.  I suppose we can start there and look at the Supreme Court’s view on the sacred nature of natural rights versus the civil law.  Note that the conflict between the civil law and the common law is not a new one.  The legal profession has taken a position behind the civil law by abolishing the common law. UCS Title 76-1-105;  “Common law crimes are abolished and no conduct is a crime unless made so by this code, or applicable statutes or ordinances.”  I will touch on this conflict and its importance to my position later.  Speaking to common-law principles;  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, . . .” (Declaration of Independence) This is why “wise” men should elected who understand the importance of the rights of the people.

NATURAL RIGHTS

It is the purpose of government to protect and secure the natural rights of the people from an over-zealous bureaucracy, and not the other way around.  Justice White expanded on this clause in Butchers’ Union Co. v. Crescent City Co., 1884; “As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all actions, and upon a recognition of them alone can free institutions be maintained.  These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people: ‘We hold these truths to be self-evident’ — that is so plain that their truth is recognized upon mere statement — ‘that all men are endowed’ — not by edicts of Emperors, or decrees of Parliament, or acts of Congress, but ‘by their Creator with certain inalienable rights’ — that is, rights which cannot be bartered away, or given away, or taken away except in punishment of crime — ‘and that among these are life, liberty, and the pursuit of happiness, and to secure these’ — not grant them but secure them — ‘governments are instituted among men, deriving their just powers from the consent of the governed.’”

A few years later the Supreme Court (1896) was deciding a tax case Pollock v. Farmers’ Loan, 157 US 429, Justice Field offered a concurring opinion (p. 599) declaring;  “As stated by counsel: There is no such thing in the theory of our national government as unlimited power of taxation in Congress. There are limitations of its powers arising out of the essential nature of all free government; there are reservations of individual rights, without which society could not exist, and which are respected by every government. The right of taxation is subject to these limitations.  Citizen savings Loan Ass’n v. Topeka, 20 Wall.  655, and Parkersburg v. Brown, 106 U.S. 487 , 1 Sup. Ct. 442.”

This principle expressed so long ago has been carried foreword in; Miranda v. Arizona, 384 US 436 [1966];  “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”

“When such regulations do not conflict with any constitutional inhibition or natural right, their validity cannot be successfully controverted.  The general government was not formed to interfere with or control them.”  West Virginia State Board of Education vs. Barnette, 1943;  “One’s rights to life, liberty, and property … and other  fundamental rights may not be admitted to vote; they depend on the outcome of no election.  A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”  (reaffirmed in Lucas v. 44th Gen. Assembly of Colorado, 1964)

This principle from Barnette and Lucas is what Ezra Taft Benson expanded upon and brought it more to home.  I tried to paraphrase it, but as it was spoken: “Suppose (individual) ‘A’ wants another horse for his wagon.  He doesn’t have the money to buy one, but since (individual) ‘B’ has an extra horse, he decides that he is entitled to share in his good fortune.  Is he entitled to take his neighbor’s horse?  Obviously not! If his neighbor wishes to give it or lend it, that is another question.  But so long as (individual) ‘B’ wishes to keep his property, (individual) ‘A’ has no claim to it.

If ‘A’ has no power to take ‘B’s property, can he delegate any such power to the (government)?  No! Even if everyone in the community desires that ‘B’ give his extra horse to ‘A’, they have no right individually or collectively to force him to do it.”  (The Constitution, A Heavenly Banner)

In 1798, the Supreme Court Justice Chase (Calder v. Bull, 3 US 386) probably laid the foundation for the remarks of Benson when the Court said; “An act of the legislature (for I cannot call it law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.  The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded.  A few instances will suffice to explain what I mean. . . ; a law that takes property from A and gives to B, it is against all reason and justice, for a people to entrust a Legislature with such powers; and it cannot be presumed that they have done it.” (p. 388)  I will expand on this thought when I get into the common law principle of delegation.

When the Tax Commission takes my property without my consent, it interferes with my fundamental rights.  “The most fundamental element of a free society is the absolute ownership of property.

“Men, therefore, in society having property, have such a right to the goods, which by the law of the community are theirs, that nobody hath a right to take them, or any part of them, from them without their own consent; without this they have no property at all.  For I have truly no property in that which another can by right take from me when he pleases against my consent.”  (Thomas Jefferson)  Former Supreme Court Justice George Sutherland has put these principles into the proper perspective, when during an address he stated;  “Property, per se, has no rights, but the individual– the man — has three great rights, equally sacred from arbitrary interference; the right to life, the right to liberty, and the right to property.  The three rights are so bound together as to be essentially one right.  To give man his life, but deny him his liberty, is to take from him all that makes life worth living.  To give him liberty but take from him the property which is the fruit and badge of his liberty, is to still leave him a slave.” (Address to the New York Bar Association, January 21, 1921)  “For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.  Yick Wo v. Hopkins, 118 U.S. 356, 370

“Such difficulties indicate that the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a “personal” right, whether the “property” in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. J. Locke, Of Civil Government 82-85 (1924)  (Lynch v. Household Fin. Co., 405 US 538, 552 [1972])

“The Fourteenth Amendment vindicated for all persons the rights established by the Act of 1866. (cites omitted) “It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.” Shelley v. Kraemer, 334 U.S. 1, 10  (Lynch p. 554) .

As briefly as possible, the preceding shows the Supreme Court’s feeling as to the sacred nature surrounding the rights of the people.  The common-law rights of the people are fundamental to our republic.  The civil law now imposed upon the people of Utah by UCS 76-1-105 recognizes only civil rights, suitable for a democracy.  However the legal profession choses to spin this, it cannot make it go away.  What is the State of Utah taxing under code section 59-10?  Which of my rights?

SOVEREIGNTY

Turning now to the topic of sovereignty and its source.   To begin with, it is essential to understand what sovereignty is and how it works in a republic.  I start with a rather lengthy, but very enlightening commentary on the subject by Justice James Wilson in his contributing opinion in Chisholm v. Georgia, 2 US 419, 453  (1793); “For, in an instrument well drawn, as in a poem well composed, silence is sometimes most expressive.

“To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves ‘SOVEREIGN’ people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.  p. 454

“Who, or what, is a sovereignty? What is his or its sovereignty? . . .  In one sense, the term sovereign has for its correlative, subject, In this sense, the term can receive no application; for it has no object in the Constitution of the United States. Under that Constitution there are citizens, but no subjects. ‘Citizen of the United States. . . . The term, subject, occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet ‘foreign’ is prefixed. . . .  The only reason, I believe, why a free man is bound by human laws, is, that he binds himself. p. 456

“In another sense, according to some writers, every State, which governs itself without any dependence on another power, is a sovereign State. p. 457

“There is a third sense, . . . sovereignty is derived from a feudal source; and like many other parts of that system so degrading to man, still retains its influence over our sentiments and conduct, though the cause, by which that influence was produced, never extended to the American States.  p. 457

“The sovereign, when traced to his source, must be found in the man.”   p. 458  All that is necessary is to do the genealogy.

The third sense on sovereignty mentioned by Justice Wilson has really taken over the minds and sentiments of the legal profession and they in turn have imposed it upon the citizens of this state and nation because it is best suited for the civil law system.  The first instance expounded by Justice Wilson is most compatible with our republican form of government and the common law.  Just a side note while it is on my mind: one of the problems associated with calling our government a “democracy” is that under that system “sovereignty” devolves upon the majority.  This is why Obama thinks he has a mandate from the people.

Chief Justice Jay, in the same opinion;  “. . . It is remarkable that in establishing it, the people exercised their own rights, and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, ‘We the people of the United States, do ordain and establish this Constitution.’ . . .

“The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No such ideas obtain here; at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects. . . .  and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.” p.471

“This belief in the sovereign power of political machinery is not born with men; they are taught it. And how are they taught it? Evidently by these preachers of universal legislative superintendence — by the pretensions of statesmen themselves — and by having seen from their childhood, all kinds of functions undertaken by government officials.” (Moses Thacher)

In an 1886, decision Justice Matthews went into this subject with some interesting commentary.  “[W]hile sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people. . . .

“When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.”  (Yick Wo, 370)

The government established by constitutions in this Union, has expanded beyond its limits, thanks to the adoption of the civil law and although uncontrollable in this abuse of power.  They do not have the right to govern. The officers of this government hold office as a privilege, which is taxable. The supreme power of government remains with the people.  “There is no such thing as government sovereignty, or provided for, in our National Constitution. Under our form of government sovereignty is in the people collectively constituting the State, and not the body of men who, for the time being, are invested by them, with civil authority.” Moses Thacher on Civil Government.  Moses Thacher was a member of the convention drafting the constitution for the State of Utah.   The Supreme Court supports the statement by Moses Thacher saying, “Jurisdiction is a quality of the sovereign and the Federal Government has no inherent sovereign powers.” (Hodges v. U.S., 203 U.S. 1)  And neither do the States.

This should be sufficient to establish the fundamental common law principle that the sovereignty of this nation is in the people and that the people are “sovereigns without subjects”.

This being accepted, the question arises as to which sovereign powers can the people delegate to their respective governments?  It almost would seem pointless to educate the legal profession on the fundamental common law principle of delegation of authority.  However, you were very uncommitted and it was difficult to try and find a common ground instead of traveling over ground you should already understand.

DELEGATION OF AUTHORITY

“What is Government, but a Trust committed by All, or the Most, to One, or a Few, who are to attend upon the Affairs of All, that every one may, with the more Security, attend upon his own?”  Thomas Gordon, CATO’S LETTERS, No. 38, July 22, 1721.

Delegation simply put it is the “transfer of authority from one to another.”

Black’s Law Dictionary.  “The act of empowering one to act for another.” Webster’s Collegiate Dictionary.   Most of the authority citing delegation deals with interaction between the branches of government.  The principle is the same as discussed in the area of the sovereign as “. . . all legislative powers appertain to sovereignty.”  Chief Justice John Marshall, M’Culloch v. Maryland.  “Taxation is a sovereign power in a state; . . . .” Dobbins v. The Comm. of Erie County, 16 Peters 435, 447 (1842)   See also Curry vs. McCanless, 307 U.S. 357, “The power to tax is an incident of sovereignty and is coextensive with sovereignty.”

When they speak of transferring authority it goes without question that in order to make the transfer effective the transferrer must have that quality or characteristic wanting to transfer.  This is the conclusion that Ezra Taft Benson makes after citing the example mentioned earlier.  “They [the individual] cannot delegate a power they themselves do not have. This important principle was clearly understood and explained by John Lock nearly 300 years ago;  “… Nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another.” [John Locke, Two Treatise of Government, book II]

It is not rocket science, as explained by professor of business at BYU, H. Verlan Anderson; “Since those who adopt and execute laws are our agents, doing only our bidding, we should never ask them to do anything which we would consider evil or wrong for us to do ourselves. Every person who knows right from wrong can apply this test as quickly and as easily in the case of government as in any other moral decision.” [Many Are Called But few Are Chosen, 1967]

“Whenever government is doing anything that is forbidden to the citizens, that function is illegitimate, according to our theory of government. For example, our government protects us against murderers and robbers. That is a legitimate function of government, on two counts. First, you can continue to protect yourself against murderers and robbers, even though the government is doing it at the same time. Second, since you have the right as an individual, you also have the right to delegate it to another person or organization. Our government is founded squarely on this ‘theory of delegation’. One cannot delegate what he doesn’t have. No person has a right to say how my children must be educated. Since no person has that moral right, no person can morally and logically delegate it. Therefore, if government is determining what my children must learn (it is!), that is clearly an illegitimate function of government and is contrary to the theory of which it is founded. And so on.”  Dean Russell, Letter to Compiler, 1964

Ezra Taft Benson in an address before the BYU student body (cited earlier) outlined, “[t]he fifth and final principle that is basic to our understanding of the Constitution is that governments should have only limited powers. The important thing to keep in mind is that the people who have created their government can give to that government only such powers as they, themselves, have in the first place. Obviously, they cannot give that which they do not possess.

“By deriving its just powers from the governed, government becomes primarily a mechanism for defense against bodily harm, theft, and involuntary servitude. It cannot claim the power to redistribute money or property nor to force reluctant citizens to perform acts of charity against their will. Government is created by the people. No individual possesses the power to take another’s wealth or to force others to do good, so no government has the right to do such things either. The creature cannot exceed the creator.” (See also a good case on sovereignty, Kansas v. State of Colorado, 206 U.S. 46, 83; “The creature cannot rule the creator.” ) This common law principle was simplified by Chief Justice John Marshall:  “The right never existed, and the question whether it has been surrendered, can not arise.” (M’Cullock  p. 431)

“. . . [W]hen the power and majesty and honor of those who created shall become subordinate to the thing of their creation, I but feebly utter my apprehensions when I express my firm conviction that we shall see ‘the beginning of the end.”  President Franklin Pierce in a veto message sent to the Senate May 3, 1854

It is patently obviously that “one cannot delegate, what one does not have.”  A common law principle.

TERRITORIAL JURISDICTION

As I move into this area it is important to understand that “The Founding Fathers confirmed that most areas of life … would remain outside the reach of the Federal Government.”  U.S. v. Lopez, 514 US 549, p. 7 of Justice Thomas’ concurring opinion.

“There are other powers granted to Congress outside of Art. I, 8 that may become wholly superfluous as well due to our distortion of the Commerce Clause. For instance, Congress has plenary power over the District of Columbia and the territories. See U.S. Const., Art. I, 8, cl. 15 and Art. IV, 3, cl. 2. The grant of comprehensive legislative power over certain areas of the Nation, when read in conjunction with the rest of the Constitution, further confirms that Congress was not ceded plenary authority over the whole Nation.” Footnote 3 of Justice Thomas’ opinion at 21.  “Even before Gibbons, Chief Justice Marshall, writing for the Court in Cohens v. Virginia, 6 Wheat. 264 (1821), noted that . . . . The Court’s only qualification was that Congress could enact such laws for places where it enjoyed plenary powers – for instance, over the District of Columbia. Id., at 426.”  Justice Thomas, at 14.

I accept this as an accurate summation of the intent of those drafting the Constitution.  It becomes necessary now to define those limits of jurisdiction of the federal government and those limits are clearly defined in Article I, Section 8, cl. 17, in part: “To exercise exclusive Legislation in all Cases whatsoever, over such District . . . , and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; . . .”  In defining the “Special maritime and territorial jurisdiction of the United States . . .”  Congress followed the language of clause 17.  We understand the jurisdiction of the federal government dealing with “the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”, but what is over-looked is “to exercise like Authority over all Places purchased by the Consent of the Legislature of the State”. (Title 18, Part 1, Chapter 1, cl. 3)

Legislative jurisdiction of the federal government whether it be exclusive or concurrent, is limited, very limited.  To extend that jurisdiction any further requires an act of cession by the individual States.  “Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.”  Title 40, United States Code, Section 255.  John J Schlabach, Enrolled Agent wrote to the California State Lands Commission [1966] requesting a listing of the degree of federal legislation over eleven properties in the State.  The reply from James R. Frey, Staff Counsel stated that “it appears from the records that “[b]ecause these parcels are not federally owned the United States does not have any legislative jurisdiction.”  Now I have, to the best of my ability, researched the laws of the State of Utah to find those properties which are owned or have been ceded to the federal government.  As of this time I neither live or have lived; work or have worked; nor have had any activity that would subject me to the legislative jurisdiction of the federal government.  (See Title 63, Chapter 8, section 1; Jurisdiction over land acquired or leased by United States)

In the United States of America there are two separate and distinct spheres of jurisdictions: (1) the jurisdiction of each of the several States within their own territorial boundaries and (2) federal jurisdiction in Washington, D.C., enclaves and territories, Congress has exclusive jurisdiction, which means they can make any law they want to, within reason, the Constitution is not a bar.  Chief Justice Marshall address these distinct jurisdictions in the Bevans case; “It is in the 8th section of the 2d article, we are to look for cessions of territory and of exclusive jurisdiction. Congress has power to exercise exclusive jurisdiction over this district, and over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.   “Constitutional restrictions and limitations were not applicable to the area of lands, enclaves, territories and possessions over which Congress had exclusive legislative authority.”   Downes v. Bidwell, 182 U.S. 244, [1901]; “The laws of Congress in respect to those matters (outside of Constitutionally delegated powers) do not extend into the territorial limits of the states, but have force only in the District of Columbia, and other places that are within the exclusive jurisdiction of the national government.”  Caha v US, 152 U.S. 211,215 [1894]

“It is observable that the power of exclusive legislation (which is jurisdiction) is united with cession of territory, which is to be the free act of the states. It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the framers of our Constitution had not in view any cession of territory, or, which is essentially the same, of general jurisdiction.”  U.S. v. Bevans, 16 U.S. 336, 388 [1818]

Speaking to the issue at bar, Marshall shows that: “The place described is unquestionably within the original territory of Massachusetts.  It is then within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded to the United States.” p. 387  State jurisdiction encompasses the legislative power to regulate, control and govern individuals, enterprises, real and personal property’ within the boundaries of a given State. Federal jurisdiction, by contrast, is extremely limited and can be exercised only in areas external to the sovereign States unless, and until, a State has ceded a portion of its jurisdiction to the federal government.  The U.S. Constitution grants only exclusive jurisdiction over the areas listed in clause 17 of Article I, section 8.  No other jurisdiction is delegated; only the individual states can grant that according to their pleasure.

The Supreme Court of New York was presented with the issue of whether the State of New York had jurisdiction over a murder committed at Fort Niagara, a federal fort. In People v Godfrey, (17 Johns 225) [N. Y, 1819] the court held that the fort was NOT subject to federal jurisdiction because the lands had not been ceded to the United States. The Court stated that “[T]o bring the offense within the jurisdiction of the courts of the union, it must have been committed out of the jurisdiction of the state; it is not the offense committed, but the place in which it is committed, which must be out of the jurisdiction of the state. (17 Johns at 233)

In US v Cornell, (Fed. Cas. 646, No. 14, 867 (C.C.D.R.I., 1819) the court held that “although the United States may well purchase and hold lands for public purposes within the territorial limits of a state, this does not of itself oust the jurisdiction or sovereignty of such State over the lands so purchased.” Id at 648 And, in New Orleans v United States, 5 US (10 Peters) 662 (1836) the Court held that “[s]pecial provision is made in the Constitution for the cession of jurisdiction from the States over places where the federal government shall establish forts or other military’ works. And it is only in these places, or in the territories of the United States, where it can exercise a general jurisdiction.” p. 737 Nothing could be more clear.

About eight years later, in Pollard v Hagan, 44 US 212 (1845) the question of federal jurisdiction was, once again, before the Court. The Court found that “a proper examination of this subject will show that the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory, of which Alabama or any of the new States were formed.” p.221 Moreover, “the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in the cases in which it is expressly granted.” p.223

The proposition that a State retains a degree of jurisdiction over property ceded to the federal government is well settled.  These principles regarding the distinction between State and federal jurisdiction continue through today.  If jurisdiction is not vested in the United States pursuant to statute, their is no jurisdiction. Quoting 40 USC §255.  (Adams v US, 319 US 312, 63 S.Ct. 1122 (1943)  While reading over Surplus Trading Co. v. Cook (281 U.S. 647 [1930]), the Court made an interesting comment that tied down the term “exclusive legislation” made a part of clause 17 of Article I, Section 8.  “Exclusive legislation’ is consistent only with exclusive jurisdiction.” p.652  Meaning to the exclusion of all other jurisdictions.  When applied to clause 17 it over shadows all other parties State or private.  Unless the federal government has been granted exclusive jurisdiction by the State it has no exclusive legislative powers.  No other types of jurisdiction, concurrent, proprietor or general are granted by the Constitution.  Only the States can authorize varying degrees of jurisdiction to the federal government of lands within the boarders of the state.

 Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States

In June of 1957, the government of the United States published this report: Therein the Committee stated in part: “The Constitution gives express recognition to but one means Federal acquisition of legislative jurisdiction–by State consent under Article 1, Section 8. Clause 17…. [T]he Constitution provided the sole mode for transfer of jurisdiction, and that if this model is not pursued. no transfer of jurisdiction can take place. (Study at p. 41)

“It scarcely needs to be said that unless there has been a transfer of jurisdiction (1)pursuant to clause 17 by a Federal acquisition of land with State consent. or (2) unless the Federal government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being exercise by the State, subject to non-interference by the State with Federal function. (Study at p. 45)

“The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State. (Study at p. 46)

“On the other hand, while the Federal Government has power under various provisions of the Constitution to define, and prohibit as criminal, certain acts or omissions occurring any where in the United States. it has no power to punish for various crimes, jurisdiction over which is retained by the States under our Federal-State system of government, unless such crime occurs on areas as to which legislative jurisdiction has been vested in the Federal Government.

“It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefor. (U.S. v. Benson, 495 F2 475,481) Even the burglary of an IRS office was held to be a State matter! (People v. Hammond, 1 Ill. 2D 65 [1953]) In Keller v US, 213 US 138 [1909] it was held that Congress cannot exercise police powers within the States. And. in Illinois Central Railroad Company v McKendree, (213 US 138 [1909]) the Court held that there was no power conferred upon the Secretary [of Agriculture] to make regulations concerning intrastate commerce. Over which Congress has no control.” (Study at p.528)

The legal precedence for these common law principle are endless. It is not clear as to why the courts appear to be side-stepping the issue. The federal court in a 1942 case was on point when they said, “An act of Congress does not have sanctity of constitutional provision, and even though the act is valid within orbit of activities of Congress, the operation of the act can affect only those subjects over which the central government has jurisdiction.” People v. Kelley, 122 P. 2D 655

The legal effect of the Declaration of Independence was to make each newly-created State a separate and independent sovereign over which there was no other government, superior power or jurisdiction save for the people who are the sovereigns.  There is a third sphere which is separate and independent of the federal and state government governed by the common law, not the civil law and that is in the individual sovereign.

NATURAL RIGHTS – SOVEREIGNTY- DELEGATION – JURISDICTION  . . .  AND TAXATION

The power of the United States to tax is limited to persons, property, and business within their jurisdiction, as much as that of a state is limited to the same subjects within its jurisdiction. United States v. Erie Ry. Co., 106 U.S. 327, 333, 1 S.Ct. 223 (1882), Justice Field in dissent; See also, Pollard v. Hagan, 44 U.S. 221, 223

Turning back to the decision delivered by Chief Justice Marshall, (M’Culloch ) he addressed the authority of the State of Maryland to tax the federal bank which was denied.  Although the subject of the decision was state authority to tax federal creations, such as the bank, there are several principles that apply to taxation in general when he said;   “. . . [T]he power of taxation . . . may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace this right? It is obvious, that it is an incident of sovereignty, and is co-extensive with that to which it is an incident.”  He continues on to define this authority or jurisdiction.  ” . . . All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident.

“. . . The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; . . .”  (M’Cullock, p. 429)

Here Justice Marshall explains two things.  First that “. . . [T]he power of taxation . . . may be exercised upon every object brought within its jurisdiction.”  I have already shown that the jurisdiction of the federal government is limited and does not extend into the external boundaries of the states.  However, taxation is a ‘sovereign’ power and in defining the limits of the jurisdiction of the states in particular, he does the genealogy: “But to what source do we trace this right?”  Stating that “All subjects over which the sovereign power of a state extends, are objects of taxation; . . .”  And in defining the sovereign powers of a state he concludes that: “. . . The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; . . .”  (M’Cullock, p. 429)   This defines the jurisdiction of a State associated with taxation.

Secondly, having said this, Marshall states the obvious; “. . . but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident.”  This principle is a common law principle, it not only provides an avenue for state taxation, but also protects the rights and liberties of the people.

As discussed earlier, this principle also applies also to the federal government.  As a sovereign, the people, unless otherwise so stipulated are governed by the principles of the common law and are only answerable to that court, not the civil law.  Let me comment briefly on that.

Setting all of the foregoing principles aside, the crucial safe-guard the people have is found in a fundamental principle of the civil law.  And to understand this it must be understood that the civil law is the bastard child of admiralty.  This civil law administration of admiralty is the jurisdiction that was forced off the land at the time the colonies declared their independence.  “He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation.”  As to admiralty; “It has indeed been said, that this extensive jurisdiction of the admiralty in the colonies was the subject of complaint at the time of the Revolution; and it is undoubtedly true, that the extension of the admiralty Jurisdiction beyond its ancient limits was, in some petitions and public documents, stated as one of the grievances of the colonies.”  (Benedict on Admiralty, §72. Jurisdiction Complained of.)

Circuit Justice Baldwin in his extensive commentary on the subject, also recognized this. “It is also needless to combat the proposition, that the civil jurisdiction of the admiralty was more expanded in the colonies than in the mother country.”  (Bains v. The James and Catherine, 2 Fed. Cases, No. 756 (1832)

This division between the two different classes of law the authors of Benedict on Admiralty has some interesting observations.  “The admiralty law is indebted for many of its characteristics to the circumstances of the countries in which it was first administered. The countries that earliest reduced the law of the sea to a system, and adopted codes of maritime regulations, having been countries in which the Roman or civil law prevailed, the principles of that great system of jurisprudence were incorporated with, . . . that, in England, where the common law was the of the land, the civil law was held to be the law of the admiralty, and the course of proceedings in admiralty closely resembled the civil law practice.” (§15. The Civil Law, quoting Browne Civil and Adm. Law. 348)  This better helps us to understand the phrase “law of the land” as used in the Constitution. (Article VI)  The civil law is not the “law of the land”.

In that early case Circuit Judge Baldwin commented quite extensively on this struggle.  Several of his comments and conclusions are of interest.  “The jurisdiction of the admiralty was deemed a jewel of great lustre and value in the diadem or crown of the king, and was carried to great extent by the lord high admiral and his officers; but however it might be cherished and enlarged by them, in order to extend the king’s and their power, and promote their interest, it was odious to the commons of England, who became alarmed at the encroachments upon the jurisdiction of the courts of common law, and called loudly for the redress of the grievance.” (Bains)  Another feature of Admiralty/Civil law is that juries are not required, and are only called “in extraordinary cases to inform the conscience of the court.” (Bains, p. 416)

This brought to mind an incident in Hawaii several years ago when a jury found for one party of the action and the trial judge threw it out.

Judge Baldwin further points out; “But it is alleged, that the jurisdiction of courts of admiralty in the United States is more extensive, and that the constitution has re-established it . . . . and that it may now be exercised in all cases, where it is authorized by the civil law . . . .  Should this construction be given to the constitution, it will present, in striking contrast, the opinion of the people of the states who adopted it . . .   on the right of trial by jury, and the preference of the common to the civil law. It will also present in as striking a view, the great difference between the opinions of those who composed the first congress of the revolution, and the members of the convention, who framed the constitution, in relation to admiralty jurisdiction, in all its branches.”  (Bains, p.414)

To make a long commentary short, Judge Baldwin makes a very poignant statement. “It is therefore a self evident proposition, that the jurisprudence of the United States is not founded in the civil law . . . .” (Bains)

The second case which deals with the conflict between the common law and admiralty was delivered prior to Bains by the Supreme Court, Ramsay v. Allegree, 25 U.S. 611 (1827).  Chief Justice Marshall delivered the opinion.  Marshall’s comments are not recorded.  What is recorded was the concurring opinion of Justice Johnson who started off with; “I think it high time to check this silent and stealing progress of the admiralty in acquiring jurisdiction to which it has no pretensions.” (p. 614)   Speaking to that contest the Justice points out that “admiralty acts only in rem, and that no person can be subject to that jurisdiction but by his consent, expressed by his entering into a stipulation.”  Quoting from Browne, Vol. 2, p. 100  Also quoting from “Keble’s Reports, p. 500, quoted by Browne, it is expressly said ‘that without a stipulation, the admiralty has no jurisdiction at all over the person.” (p. 630)  Justice Campbell’s warning; “The American courts of admiralty seem to be forming by degrees into a system that is to overturn our constitution, and to deprive us of our best inheritance, the laws of the land. It would be thought in England a dangerous innovation, if the trial of any matter on land was given to the admiralty.” (Jackson v. Magnolia, 61 US 296, 330 [1857])

“The sovereign power rested in the head of state, who granted to the people, his subjects, the rights he decided they should have, reserving all other rights in himself, as  likewise the right to extend, alter, add to, or withdraw the rights already granted….  The Common Law system of  government, … as developed in the United States … is  completely polar to the Roman or Civil Law system as to legal origin and the sovereignty behind it. . . .

“In the last years (1935), we in America have gone a  long distance towards the adopting of the Roman concepts, and the abuses against property rights and human freedom and liberty which are possible under that system.” (J. Reuben Clark, Jr., Stand Fast by Our Constitution)

Ezra Taft Benson address The Constitution, A Heavenly Banner, “. . . There are only two governmental systems in the world today.  One system recognizes that the sovereign power is vested in one person or a group of people who serve as  head of state.  This kind of government rests on the premise that the ruler grants to the people the rights and powers the ruler thinks they should have.  This system is wrong, regardless how benevolent the dictator may be, because it denies that which belongs to all the people inalienably — the right to life, liberty, and property.”

This action which the Tax Commission is taking is within admiralty jurisdiction under the civil law rules.  Jurisdiction is essential as is “condition precedent” and this administrative court has none unless the Tax Commission can produce my “voluntary” entry.  The use of my letter of May 30th as a petition to this administrative court to hear this is a serious violation of my common law right to due process.  Let me repeat; the Administrative court has jurisdiction over the subject matter “in rem“, but not over the person absent a voluntary stipulation entered into.  As of this date neither the Tax Commission nor yourself have produced that fundamental fact.

Now the civil law can function under this common law principle only under the principle of admiralty law which incorporates the first principle of Marshall’s declaration and allows the voluntary act by people who wish to move into that jurisdiction.  I have not done so.  We have been granted by the U.S. Constitution a republican form of government, yet contrary to that protection, the State of Utah has abolished the foundation of that form of government in passing UCS Title 76-1-105, supplanting it with a democracy governed by the civil law.

The problem that continues to bother me is that the law should be written so that the people can read it, understand it and follow it accordingly.  The common law is simple and understandable.  It is spoken of the wisdom of King Solomon in understanding and prosecuting the law.  It was the common law.  If he had the civil law, it would make for a different biblical story.  It doesn’t set well with me, when all I hear from the bench or the legal profession; “you need to see a lawyer! Right!

“An important canon of construction is that constitutions must or at least may be construed with reference to common law, although the reverse is not necessarily true since, in most respects, the federal and state constitutions did not repudiate but cherished the established common law.

Provisions of the Federal Constitution have been interpreted by reference to the common law in existence at the time of the writing of that document. It has been said that without reference to this common law the language of the federal constitution could not be understood. This is because the United States Constitution and the plan of government of the United States were founded on the common law as established in England at the time of the Revolution.   Therefore, it is a general rule that phrases in the Bill of Rights taken from the common law must be construed in reference to the latter.” (Emphasized areas taken from 16 AM JUR, 2nd ed., Sec. 74. The others from an earlier edition.)

This action by the State legislature, in my opinion was unconstitutional as a violation of the fundamental principles they are to reflect on from time to time.  But don’t. (Constitution for the State of Utah, Article I, Section 27)  These principles are essential to the safety of our rights, especially that of property.  “The only principles of law, then, that can be regarded, are those common to all the States. I know of none such, which can affect this case, but those that are derived from what is properly termed ‘the common law,’ a law which I presume is the ground-work of the laws in every State in the Union, and which I consider, so far as it is applicable to the Peculiar circumstances of the country, and where no special act of Legislation controls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country.”   Justice Iredell, Chisholm v. Georgia, p. 435

As a condition precedent to the numbers the tax commission as arrived at, and since they don’t deal in the law, to prove your point your office must show that; (1) the fundamental natural rights of the people, in particular that the right of property, is not protected by the Constitution; (2) the State of Utah is the sovereign and that I am merely a subject; (3) the sovereign (people) have an inherent right to my property, to take it without my consent; (4) the civil law (admiralty) has jurisdiction absent any factual evidence of a stipulation granting jurisdiction on my part.

Michelle, it really is of no consequence what statutes your office produces, because Title 26 creates NO liability on my part to adhere to that civil law, which is the foundation of the tax commission’s petition.  Section 7851, Applicability of revenue laws, (6) Subtitle F, Procedure and Administration, (A) General rule: “The provisions of subtitle F shall take effect on the day after the date of enactment of this title and shall be applicable with respect to any tax imposed by this title.”   The internal revenue laws contained in Title 26 are only prima facia evidence of the law.  They have never been enacted in to positive law.  Remember, “condition precedent”  —  do the genealogy.

Advertisements
Gallery | This entry was posted in admiralty jurisdiction, an enemy hath done this, civil law, Constitution, decaying america, Delegation of Authority, democracy, Federal Jurisdiction, freedom, government authority, judge jane phan, liberty, Socialism, Sovereignty, State Authority to tax, state's rights and tagged , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s