6918 3/10/05 Pocket warrant. Traffic ticket is pocket warrant.
This page is http://www.lawyerdude.netfirms.com/6918.html
I found this at http://www.groups.yahoo.com/group/posterityclub
Subject: Administrative Summons/ traffic ticket
Court or Tribunal
Behold! Newsletter, July 1989
Copy Right: July 1989
by Randy L. Geiszler, email: behold@teleport.com
Recently I have been doing some research on the nature and character of Administrative Summons enforcement proceedings. The administrative summons is what is sometimes referred to as a
"pocket summons." It is issued by an agent of the Internal Reve-
nue Service, which is the most common, or an agent of some other
agency, on statutory authority, without intervention of a court
of Article III judicial authority.
The process (administrative summons) is a form of civil process
prescribed by statute in certain cases relative to the statutory
authority of the agent issuing same. If it were criminal process
it would fall in the class of "blank warrants" which once pre-
vailed in England. See Bouvier's Law Dictionary, 8th Ed., Vol. 2,
p. 641, title, "WARRANT," on blank warrants.
Issuing blank warrants was considered a reprehensible practice
and "In the year 1763, (just prior to the American Revolution)
the legality of these general warrants was brought before the
King's Bench for solemn decision; and they were adjudged to be
illegal, and void for uncertainty." Story's Commentaries on the
Constitution, Vol. 3, ss. 1895 (1833).
But, because in most cases the administrative summons' are a form
of civil process, they do not fall within the injunction of the
Fourth Article in amendment to the united States Constitution,
which limits the conditions under which "warrants" (a form of
criminal process) are allowed to be issued. This fact, among
others, is what allows the judge or magistrate in an administra-
tive summons enforcement proceeding, to avoid application of the
limitations of the Fourth Article in amendment, to the due proc-
ess clause of the Fifth Article in amendment. For a contrary
opinion, see Boyd v. U.S., 116 U.S 616, 6 SCt 524, 29 LEd 746,
which will be explained later.
The administrative summons, beyond being civil process, is a
strictly internal form of process used by Congress and the execu-
tive, when empowered by Congress, to control the internal affairs
of government. The process lies in what might be called a fourth
jurisdiction in the Constitution. A jurisdiction that appears
judicial on the surface, but actually is a legislative jurisdic-
tion. A jurisdiction which appears to vest Article III courts
with power of adjudication, but which, in reality, only vest
judges or magistrates with a legislative power, outside the
court, directly under the statute authorizing the enforcement
proceeding, to enforce the summons in the jurisdiction of a
"tribunal" - not a "court."
This internal statutory legislative jurisdiction came to light in
the supreme Court a long time ago in the case of Martin v. Mott,
12 Wheat, (25 U.S.) 19, 6 L.Ed. 537 (1827), and had been initiat-
ed earlier in the circuit court in 1792. Mott, being a "white
Citizen of the State of New York," was called to serve in the
militia in a war between the united States and England and Ire-
land. He refused service in the militia for which he was tried by
a Court Martial. Mott sued out a writ of error in the supreme
Court of the United States where the Court held that the juris-
diction exercised in requisitioning him (Mott) into service of
the militia, was solely an executive jurisdiction vested in the
President by the Constitution. As a consequence, the Court fur-
ther held, that it had no jurisdiction to revise the findings of
the Court Martial, because the court was not a judicial body. In
bringing this decision the Court made it clear that the governing
of the militia or the requisition of Citizens into the militia,
and the question of the necessity to requisition, were not mat-
ters confided in the Judiciary under the Constitution, Article
III. Therefore, the Court Martial, although called a court, was
not a part of the judiciary established under Article III, but
instead was a tribunal established under the executive by author-
ity of a declaration from Congress and statutes enacted by Con-
gress. As an implied consequence of the fact that there can be no
war without declaration by Congress, the Court Martial in actual-
ity is a legislative court, since the power of the President to
call up the militia shouldn't take affect except upon such decla-
ration of war from Congress. On top of which, any court or tribu-
nal established is usually established by congressional enactment
whether under Article III or some other article of the Constitu-
tion.
In U.S. v. Ferriera, 13 How. (54 U.S.) 40 (1851), the supreme
Court again gave recognition to a special legislative jurisdic-
tion, outside the judicial power of Article III; only this time
it appeared to be vested in the District Court of the U.S. The
case involved the treaty power of Congress, which could be said
to have a peculiar similarity to the power to declare war since
both relate to the international law powers vested in Congress by
the Constitution. In addition, the facts were similar, in that,
the power in question was determined to be exclusively legisla-
tive. Congress, by two acts passed in 1823 and 1824, (3 Stat. 768
and 6 Stat. 560) directed the judge of the Territorial Court of
Florida to receive, examine, and adjudge all cases of claims for
losses (under a treaty of 1819, between the United States and
Spain), and report his decisions, if in favor of the claimants,
together with the evidence upon which they were founded, to the
Secretary of the Treasury, who, on being satisfied that the same
was just and equitable, within the provisions of the treaty,
should pay the amount thereof; and by an act of 1849, (9 Stat.
788) Congress directed the judge of the District Court of the
United States for the Northern District of Florida, to receive
and adjudicate certain claims in the same manner directed by the
preceding acts.
Justice Taney, writing for the Court, after noting "This purports
to be an appeal from the District Court of the United States for
the Northern District of Florida" relates this, in the Court's
opinion, about the special jurisdiction exercised by the district
court judge in that case:
"Undoubtedly Congress was bound to provide such a tribunal
as the treaty described. But if they failed to fulfill that
promise, it is a question between the United States and Spain.
The tribunal created to adjust the claims cannot change the mode
of proceeding or the character in which the law authorizes it to
act, under any opinion it may entertain, that a different mode of
proceeding, or a tribunal of different character, would better
comport with the provisions of the treaty. If it acts at all, it
acts under the authority of the law and must obey the law.
"The territorial judges therefore, in adjusting these claims
derived their authority altogether from the laws above mentioned;
and their decisions can be entitled to no higher respect or
authority than these laws gave them. They are referred by the act
of 1823, to the treaty for the description of the injury which
the law requires them to adjust; but not to enlarge the power
which the law confers, nor to change the character in which the
law authorizes them to act.
"The law of 1823, therefore, and not the stipulations of the
treaty, furnishes the rule for the proceeding of the territorial
judges, and determines their character. And it is manifest that
this power to decide upon the validity of these claims, is not
conferred on them as a judicial function, to be exercised in the
ordinary forms of a court of justice. For there is to be no suit;
no parties in the legal acceptance of the term, are to be made -
no process to issue; and no one is authorized to appear on behalf
of the United States, or to summon witnesses in the case. The
proceeding is altogether ex parte; and all that the judge is
required to do is to receive the claim when the party presents
it, and to adjust it upon such evidence as he may have before
him, or be able himself to obtain. But neither the evidence, nor
his award, are to be filed in the court in which he presides, nor
recorded there; but he is required to transmit, both the decision
and the evidence upon which he decided, to the Secretary of the
Treasury; and the claim is to be paid if the Secretary thinks it
just and equitable, but not otherwise. It is to be a debt from
the United States upon the decision of the Secretary, but not
upon that of the judge.
"It is too evident for argument on the subject, that such a
tribunal is not a judicial one, and that the act of Congress did
not intend to make it one. The authority conferred on the respec-
tive judges was nothing more than that of a commissioner to
adjust certain claims against the United States; and the office
of judges, and their respective jurisdictions, are referred to in
the law, merely as a designation of the powers to whom the au-
thority is confided, and the territorial limits to which it
extends. The decision is not the judgment of a court of justice.
It is the award of a commissioner. The act of 1834 calls it an
award. And an appeal to this court from such a decision, by such
an authority from the judgment of a court of record, would be an
anomaly in the history of jurisprudence. An appeal might as well
have been taken from the awards of the board of commissioners,
under the Mexican treaty, which were recently sitting in this
city.
"Nor can we see any ground for objection to the power of
revision and control given to the Secretary of the Treasury. When
the United States consent to submit an adjustment of claims
against them to any tribunal, they have a right to prescribe the
conditions on which they will pay. And they had a right therefore
to make the approval of the award by the Secretary of the Treas-
ury, one of the conditions upon which they would agree to be
liable. No claim, therefore, is due from the United States until
it is sanctioned by him; and his decision against the claimant
for the whole or a part of a claim as allowed by the judge is
final and conclusive. It cannot afterwards be disturbed by an
appeal to this or any other court, or in any other way, without
authority of an act of Congress.
"It is said, however, on the part of the claimant, that the
treaty requires that the injured parties should have an opportu-
nity of establishing their claims by a process of law; that
process of law means a judicial proceeding in a court of justice;
and that the right of supervision given to the Secretary over the
decision of the district Judge, is therefore a violation of the
treaty.
"The court think differently; and that the government of
this country is not liable to the reproach of having broken its
faith with Spain. The tribunals established are subsequently the
same with those usually created, where one nation agrees by
treaty to pay debts or damages which may be found to be due to
the citizens of another country. This treaty meant nothing more
than the tribunal and mode of proceeding ordinarily established
on such occasions; and well known and well understood when treaty
obligations of this description are undertaken. But if it were
admitted to be otherwise, it is a question between Spain and that
department of government which is charged with our foreign rela-
tions; and with which the judicial branch has no concern. Cer-
tainly the tribunal which acts under the law of Congress, and
derives all its authority from it, cannot call in question the
validity of its provisions, nor claim absolute and final power
for its decisions, when the law by virtue of which the decisions
are made, declares that they shall not be final, but subordinate
to that of the Secretary of the Treasury, and subject to his
reversal.
"And if the judicial branch of the government had the right
to look into the construction of the treaty in this respect, and
was of opinion that it required a judicial proceeding; and that
the power given to the Secretary was void as in violation of the
treaty, it would hardly strengthen the case of the claimant on
his appeal. For the proceedings before the judge are as little
judicial in their character as that before the Secretary. And if
his decisions are void on that account, the decisions of the
judge are open to the same objections; and neither the principal
nor interest, nor any part of this claim could be paid at the
Treasury. For if the tribunal is unauthorized, the awards are of
no value.
"The powers conferred by these acts of Congress upon the
judge as well as the Secretary, are, it is true, judicial in
their nature. For judgment and discretion must be exercised by
both of them. But it is nothing more than the power ordinarily
given by law to a commissioner appointed to adjust claims to
lands or money under a treaty; or special powers to inquire into
or decide any other particular class of controversies in which
the public or individuals may be concerned. A power of this
description may constitutionally be conferred on a Secretary as
well as on a commissioner. But is not judicial in either case, in
the sense in which judicial power is granted by the Constitution
to the courts of the United States.
"The proceeding we are now considering, did not take place
before one of the territorial judges, but before a District Judge
of the United States. But that circumstance can make no differ-
ence. For the act of 1849 authorizes him to receive and adjudi-
cate the claims of the persons mentioned in the law, under the
act of 1834; and provides that these claims may be settled by the
Treasury, as other cases under the said act. It conferred on the
District Judge, therefore, the same power, and the same charac-
ter, and imposed on him the same duty that had been conferred and
imposed on the territorial judges before Florida became a State.
"It would seem, indeed, in this case, that the District
Judge acted under the erroneous opinion that he was exercising
judicial power strictly speaking under the Constitution, and has
given these proceedings as much of the form of proceedings in a
court of justice as was practicable. A petition in form is filed
by the claimant; and the judge states in his opinion that the
District Attorney appeared for the United States, and argued the
case, and prayed an appeal. But, the acts of Congress require no
petition. The claimant had nothing to do, but to present his
claim to the judge with the vouchers and evidence to support it.
The District Attorney had no right to enter an appearance for the
United States, so as to make them a party to the proceedings, and
to authorize a judgment against them. It was no doubt his duty as
a public officer, if he knew of any evidence against the claim,
or of any objection to the evidence produced by the claimant, to
bring it before the judge, in order that he must consider it, and
report it to the Secretary. But the acts of Congress certainly do
not authorize him to convert a proceeding before a commissioner
into a judicial one, nor to bring an appeal from his award before
this court.
"The question as to the character in which a judge acts in a
case of this description, is not a new one. It arose as long ago
as 1792, in Hayburn's case, reported in 2 Dall., 409.
"The judges in the New York Circuit, composed of Chief
Justice Jay, Justice Cushing, and Duane, District Judge, held
that the power could not be exercised by them as a court. But in
consideration of the meritorious and benevolent object of the
law, they agreed to construe the power as conferred on them
individually as commissioners, and to adjourn the court over from
time to time, so as to enable them to perform the duty in the
character of commissioners, and out of court.
"The judges of the Pennsylvania Circuit, consisting of
Wilson and Blair, Justices of the Supreme Court, and Peters, Dis
trict Judge, refused to execute it altogether, upon the ground
that it was conferred on them as a court, and was not a judicial
power when subject to the revision of the Secretary of War and
Congress.
"The judges of the Circuit Court of North Carolina, composed
of Irdell, Justice of the Supreme Court, and Sitgreaves, District
Judge, were of the opinion that the court could not execute it as
a judicial power; and held it under advisement whether they might
not construe the act as an appointment of the judges personally
as commissioners, and perform the duty in the character of com-
missioners out of court, as had been agreed on by the judges of
the New York Circuit.
"These opinions, it appears by the report in 2 Dall., were
all communicated to the President, and the motion for a mandamus
in Hayburn's case, at the next term of the Supreme Court, would
seem to have been made merely for the purpose of having it judi-
cially determined in this court, whether the judges, under that
law, were authorized to act in the character of commissioners.
For every judge of the court, except Thomas Johnson, whose opin-
ion is not given, had formally expressed his opinion in writing,
that the duty imposed, when the decision was subject to the
revision of a Secretary and of Congress, could not be executed by
the courts as a judicial power; and the only question upon which
there appears to have been any difference of opinion, was whether
it might not be construed as conferring the power on the judges
personally as commissioners. And if it would bear that construc-
tion, there seems to have been no doubt, at that time, but that
they might constitutionally exercise it, and the Secretary con-
stitutionally revise their decisions. The law, however, was re
pealed at the next session of the legislature, and a different
way provided for the relief of the petitioners; and the question
as to the construction of the law was not decided in the Supreme
Court. But the repeal of the act clearly shows that the President
and Congress acquiesced in the correctness of the decision, that
it was not a judicial power.
"The law is the same in principle with the one we are now
considering, with this difference only, that the act of 1792
imposed the duty on the court eo nomine, and not personally on
the judges. In the case before us it is imposed upon the judge,
and it appears in the note to the case of Hayburn, that a majori-
ty of the judges of the Supreme Court were of opinion that if the
law of 1792 had conferred the power on the judges, they would
have held that it was given to them personally by that descrip-
tion; and would have performed the duty as commissioners, subject
to the revision and control of the Secretary and Congress, as
provided in the law. Nor have Justices Wilson, Blair, and Peters,
District Judges, dissented from this opinion. Their communication
to the President is silent upon this point. But the opinions of
all the judges embrace distinctly and positively the provisions
of the law now before us, and declare that, under such law, the
power was not judicial within the grant of the Constitution, and
could not be exercised as such.
"Independently of these objections, we are at some loss to
understand how this case could legally be transmitted to this
court, and certified as the transcript of a record in the Dis-
trict Court. According to the directions of the act of Congress,
the decision of the judge and the evidence on which it is found-
ed, ought to have been transmitted to the Secretary of the Treas-
ury. They are not to remain in the District Court, nor to be
recorded there. They legally belong to the office of the Secre-
tary of the Treasury, and not to the court; and a copy from the
clerk of the latter would not be evidence in any court of jus-
tice. There is no record of the proceedings in the District Court
of which a transcript can legally be made and certified; and
consequently there is no transcript now before us that we can
recognize as evidence of any proceeding or judgment in that
court.
"A question might arise whether commissioners appointed to
adjust these claims, are not officers of the United States within
the meaning of the Constitution. The duties to be performed are
entirely alien to the legitimate functions of a judge or court of
justice, and have no analogy to the general or special powers
ordinarily and legally conferred on judges or courts to secure
the due administration of the laws. And, if they are to be re-
garded as officers, holding offices under the government, the
power of appointment is in the President, by and with the advice
and consent of the senate; and Congress could not by law, desig-
nate the persons to fill these offices. And if this be the con-
struction of the Constitution, then as the judge designated could
not act in a judicial character as a court, nor as a commission-
er, because he was not appointed by the President, every thing
that has been done under the acts of 1823, and 1834, and 1849,
would be void, and the payments heretofore made might be recov-
ered back by the United States. But this question has not been
made; nor does it arise in the case. It could arise only in a
suit by the United States to recover back the money. And as the
case does not present it, and the parties interested are not
before the court, and these laws have for so many years been
acted on as valid and constitutional we do not think it proper to
express an opinion on it. In the case at bar, the power of the
judge to decide in the first instance, is assumed on both sides,
and the controversy has turned upon the power of the Secretary to
revise it; and it is in this respect of the case, that it has
been considered by the court, in the foregoing opinion.
"The appeal must be dismissed for want of jurisdiction."
U.S. v. Ferriera, 13 How. (54 U.S.) 40, 14 L.Ed. 42.
The final statement of the Ferriera court ignores the fact that
naming the district court judges in a statute passed by Congress
and signed by the President are consent to confirmation of all
persons on the bench, persons who had already been vested with
higher powers when made judges of an Article III court, the names
of whom were already known to Congress, the President and the law
in their original appointment.
In U.S. v. Ferriera, supra, the question of whether the supreme
Court of the United States had jurisdiction of the case turned
entirely on the character in which the judge heard the case and
on the mode in which he proceeded and came to a judgment, in what
purported to be the District Court of the United States.
When Chief Justice Taney spoke of the "mode" of the proceedings,
he was referring to whether the judge proceeded in a legislative
mode, out of court, strictly under the sole authority of statute,
or whether he (the district judge) proceeded in a judicial mode,
as defined in, and authorized by, Article III of the Constitu-
tion. When Chief Justice Taney referred to the character in which
the district judge heard the case, he was referring to whether
the district judge sat in the character of a commissioner, such
as is normal on a board of commissioners vested with only statu-
tory authority, or whether the district judge acted in the Arti-
cle III judicial character under appointment to the bench of the
District Court of the United States.
Two questions are covered, which together completely disclose the
legislative jurisdiction in which the cause was brought. The two
questions are, one: In what mode is the judge sitting in the
proceedings?; and, two: In what character is he presiding over
the proceedings? These two questions alone, when put forth by one
who understands them, could entirely disclose the legislative
proceedings, in a legislative tribunal, as not being authorized
within the judicial power of Article III.
In the past we have, at times, asked the wrong questions, which
allowed the judge to avoid the issues. Asking whether the court
is an Article III court and whether the judge is an Article III
judge will not bring the answers we need. These questions are
irrelevant, since legislative proceedings are neither held in the
court (mode) or before the judge in a judicial character. There-
fore, the judge could tell you that the court was established
under Article III and that he was placed in office under Article
III without disclosing that he isn't proceeding in that mode or
character in the proceedings that are immediately before him.
It is easy to understand how confusing this situation between
courts and tribunals really is. In U.S. v. Ferriera, supra, even
the district court judge thought that he was acting in the judi-
cial mode and character when he really was only acting as a
commissioner of a tribunal. That district judge heard the case on
a petition filed with his court, or so he thought, he probably
heard the case in his regular district court courtroom, he proba-
bly recorded the proceedings on the district court record, with
assistance of the clerk of the court, and every petition, motion,
order, and any other paperwork associated with the cause were
probably written under the name and title of the district court;
yet the proceedings were not held, legally, in court, nor heard
by a judge of the court.
It is just as confusing for the litigant, if not more confusing,
especially when the opposing party, and maybe even the court,
actively try to hide the mode and character of the proceedings
from him. Imagine, you are served with paperwork, an administra-
tive summons, and later a petition for enforcement and an order
to show cause bearing the name of the United States District
Court, signed by a judge or (commissioner) magistrate of the
United States District Court, issued on the petition or complaint
of the plaintiff, which petition or complaint is entitled with
the name of the United States District Court; proceedings are had
in a courtroom in the United States District Court building; a
judge or magistrate of the United States District Court hears all
matters related to the proceedings; all the documents from the
petition or complaint on down are filed with the Clerk of the
United States District Court; and, the final order on the pro-
ceedings is issued under the name of the United States District
Court, signed by a magistrate or judge thereof. What are you to
think, except that a judge heard the case in court like any other
"judicial" proceeding. Yet, when we make this assumption, we
cannot correctly challenge the jurisdiction of the tribunal and
the commissioner, who pretend to be a court and a judge, because
we proceed based on an erroneous premise from the beginning. The
old saying, "You cannot see the forest for the trees," comes to
mind.
Note the opinion in U.S. v. Ferriera, supra, says that these
proceedings were held "out of court." Burn this into your mind,
because you will find that it is a very important point in this
discussion.
Also note what was said about the statute naming district court
judges in a particular district to hear the claims in U.S. v.
Ferriera. The use of the terms district court judges in the
statute merely designates what persons will hear the cause. It
doesn't necessarily mean that these judges will hold the proceed-
ings in the character of "district judge." Using the judge's
title is a generic way of citing what class of persons will hold
the proceedings under the statute. The statute could as easily
have named each judge personally by name and included his succes-
sor in office, and would have meant the same thing even if it
never used the judge's title of office in the description. Thus,
the term "district judge" is an official designation, used to
describe a personal commission.
Naming the court in which the statutory tribunal is to hear the
proceedings is similarly designed. Each district court of the
United States has jurisdiction in a given geographical venue,
that is, can hear cases and controversies arising out of a cer-
tain land mass or area, e.g. territory. So, when Congress sets up
a statutory tribunal, they merely use the name of the district
court to describe the exact same geographical area. Congress
could have, just as easily, taken the existing description of the
district court's venue, word for word, and assigned it to the
tribunal in the statute creating it, instead of using the name of
the district court for the description.
So, where legislative courts are concerned, we can see, even when
the exact terminology is used in reference to the District Court
of the United States and its judges, as is used in reference to
legislative tribunals and their commissioners, its counterpart,
the tribunal and its commissioners exercise a distinct and sepa-
rate legislative jurisdiction and legislative venue, outside that
of the actual district court and its district judges.
As a special note, keep in mind that where Article I proceedings,
such as those distinguished in U.S. v. Ferreira, are concerned,
state boundaries are inconsequential and have no effect upon the
venue or the proceedings, since state boundaries are of no conse-
quence to the internal, or exclusive, legislative power of Con-
gress. Therefore, the removal of state boundaries from many of
the state constitutions may not have been legally necessary, as a
venue consideration, to the validity of Article I proceedings,
but, rather, the boundaries have been removed to assure that
questions could not arise that might expose the exclusive legis-
lative jurisdiction exercised in Article I proceedings.
Because the Hayburn case, reported in 2 Dallas 409, is the first
case of this type coming before the judiciary, in 1792, even
though it was never finally adjudicated in the supreme Court of
the United States, the actual opinions of the circuit court in
that case, in which Justices of the supreme Court participated at
the circuit level, are important to our understanding the court
v. tribunal question.
Here is what the judges and justices said in the Hayburn case:
"The circuit court for the district of New York (consisting
of Jay, Chief Justice, Cushing, Justice, and Duane, District
Judge) proceeded, on the 5th of April, 1791, to take into consid-
eration the act of congress entitled, 'An act to provide for the
settlement of the claims of widows and orphans barred by the
limitations heretofore established, and to regulate the claims to
invalid pensions;' and were, thereupon, unanimously, of the
opinion and agreed,
"'That by the constitution of the United States, the govern-
ment thereof is divided into three distinct and independent
branches, and that it is the duty of each to abstain from, and to
oppose, encroachments on either. That neither the legislative nor
the executive branches, can constitutionally assign to the judi-
cial any duties, but such as are properly judicial, and to be
performed in a judicial manner.'
"'That the duties assigned to the circuit, by this act, are
not of that description, and that the act itself does not appear
to contemplate them as such; inasmuch as it subjects the deci-
sions of these courts, made pursuant to those duties, first to
the consideration and suspension of the secretary at war, and
then to the revision of the legislature; whereas, by the consti-
tution, neither the secretary at war, nor any other executive
officer, nor even the legislature, are authorized to sit as a
court of errors on the judicial acts or opinions of this court.'
"'As, therefore, the business assigned to this court, by the
act, is not judicial, nor directed to be performed judicially,
the act can only be considered as appointing commissioners for
the purposes mentioned in it, by official instead of personal
description. That the judges of this court regard themselves as
being the commissioners designated by the act, and therefore, as
being at liberty to accept or decline that office. That as the
objects of this act are exceedingly benevolent, and do real honor
to the humanity and justice of congress; and as the judges desire
to manifest, on all proper occasions, and in every proper manner,
their high respect for the national legislature, they will exe-
cute this act in the capacity of commissioners.'
"'That as the legislature have a right to extend the session
of this court for any term, which they may think proper by law to
assign, the term of five days, as directed by this act, ought to
be punctually observed. That the judges of this court will, as
usual, during the session thereof, adjourn the court from day to
day, or other short periods, as circumstances may render proper,
and that they will, regularly, between the adjournments, proceed,
as commissioners, to execute the business of this act in the same
court room, or chamber.'
"The circuit court for the district of Pennsylvania (con-
sisting of Wilson and Blair, Justices, and Peters, District
Judge) made the following representation, in a letter jointly
addressed to the president of the United States, on the 18th of
April 1792.
"'To you it officially belongs to take care that the laws'
of the United States 'be faithfully executed.' Before you, there-
fore, we think it our duty to lay the sentiments, which, on a
late painful occasion, governed us with regard to an act passed
by the legislature of the Union.
"'The people of the United States have vested in congress
all legislative powers granted in the constitution. They vested
in one supreme court, and in such inferior courts as the congress
shall establish, 'the judicial power of the United States.' It is
worth of remark, that in congress the whole legislative power of
the United States is not vested. Any important part of that power
was exercised by the people themselves, when they 'ordained and
established the constitution.' This constitution is 'the supreme
law of the land.' This supreme law 'all judicial officers of the
United States are bound, by oath or affirmation, to support.'
"'It is a principle important to freedom, that in govern-
ment, the judicial should be distinct from, and independent of,
the legislative department. To this important principle, the
people of the United States, in forming their constitution, have
manifested the highest regard. They have placed their judicial
power, not in congress, but in 'courts.' They have ordained that
the 'judges of those court shall hold their offices during good
behavior,' and that 'during their continuance in office, their
salaries shall not be diminished.'
"'Congress have lately passed an act, to regulate, 'the
claims to invalid pensions.' Upon due consideration, we have been
unanimously of opinion, that under this act, the circuit court
held for the Pennsylvania district could not proceed.'
"'1st. Because the business directed by this act is not of a
judicial nature. It forms no part of the power vested by the
constitution in the courts of the United States; the circuit
court must, consequently, have proceeded without constitutional
authority. 2d. Because, if, upon that business, the court had
proceeded, its judgments (for its opinions are its judgments)
might, under the same act, have been revised and controlled by
the legislature, and by an officer in the executive department.
Such revision and control we deemed radically inconsistent with
the independence of that judicial power which is vested in the
courts; and consequently, with that important principle which is
so strictly observed by the constitution of the United States.
"'These, Sir, are the reasons of our conduct. Be assured
that, though it became necessary, it was far from being pleasant.
To be obliged to act contrary either to the obvious directions of
congress, or to a constitutional principle, in our judgment
equally obvious, excited feelings in us, we hope never to experi-
ence again.'
"The circuit court for the district of North Carolina
(consisting of Irdell, Justice, and Sitgreaves, District Judge)
made the following representation, in a letter jointly addressed
to the President of the United States, on the 8th of June 1792.
"'We, the judges now attending at the circuit court of the
United States for the district of North Carolina, conceive it our
duty to lay before you some important observations which have
occurred to us in the consideration of an act of congress lately
passed, entitled, 'An act to provide for the settlement of the
claims of widows and orphans, barred by the limitations hereto-
fore established, and to regulate the claims to invalid
pensions.'
"'We beg leave to premise, that it is as much our inclina-
tion, as it is our duty, to receive with all possible respect
every act of the legislature, and that we never can find our-
selves in a more painful situation, than to be obliged to object
to the execution of any, more especially, to the execution of one
founded on the purest principles of humanity and justice, which
the act in question undoubtedly is. But, however lamentable a
difference in opinion really may be, or with whatever difficulty
we may have formed an opinion, we are under the indispensable
necessity of acting according to the best of our own judgment,
after duly weighing every consideration that can occur to us;
which we have done on the present occasion.'
"'The extreme importance of the case, and our desire of
being explicit, beyond the danger of being misunderstood, will,
we hope, justify us in stating our observations in a systematic
manner. We therefore, Sir, submit to you the following: -
"'1. That the legislative, executive and judicial depart-
ments are each formed in a separate and independent manner; and
that the ultimate basis of each is the constitution only, within
the limits of which each department can alone justify any act of
authority.
"'2. That the legislative, among other important powers,
unquestionably possesses that of establishing courts in such a
manner as to their wisdom shall appear best, limited by the terms
of the constitution only; and to whatever extent that power may
be exercised, or however severe the duty may think proper to
require, the judges, when appointed in virtue of any such estab-
lishment, owe implicit and unreserved obedience to it.
"'3. That, at the same time, such courts cannot be warrant-
ed, as we conceive, by virtue of that part of the constitution
delegated judicial power, for the exercise of which any act of
the legislature is provided, in exercising (even under the au-
thority of another) any power not in its nature judicial, or if
judicial, not provided for upon the terms the constitution re-
quires.
"'4. That whatever doubt may be suggested, whether the power
in question is properly of a judicial nature, yet, inasmuch as
the decision of the court is not made final, but may be at least
suspended in its operation, by the secretary at war, if he shall
have cause to suspect imposition or mistake; this subjects the
decision of the court to a mode of revision, which we consider to
be unwarranted by the constitution; for though congress may
certainly establish, in instances not yet provided for, courts of
appellate jurisdiction, yet such courts must consist of judges
appointed in the manner the constitution requires, and holding
their offices by no other tenure than that of their good behav-
ior, by which tenure the office of secretary at war is not held.
And we beg leave to add, with all due deference, that no decision
of any court of the United States can, under any circumstances,
in our opinion, agreeable to the constitution, be liable to a
revision, or even suspension, by the legislature itself, in whom
no judicial power of any kind appears to be vested, but the
important one relative to impeachments.
"'These, Sir, are our reasons for being of opinion, as we
are at present, that this circuit court cannot be justified in
the execution of that part of the act, which requires it to
examine and report an opinion on the unfortunate cases of offi-
cers and soldiers disabled in the service of the United States.
The part of the court to sit five days, for the purpose of re-
ceiving applications from such persons, we shall deem it our duty
to comply with; for, whether, in our opinion, such purpose can or
can not be answered, it is, as we conceive, our indispensable
duty to keep open any court of which we have the honor to be
judges, as long as congress shall direct.
"'The high respect we entertain for the legislature, our
feelings, as men, for person whose situation requires the earli-
est, as well as the most effectual relief, and our sincere desire
to promote, whether officially or otherwise, the just and benevo-
lent views of congress, so conspicuous on the present as well as
on many other occasions, have induced us to respect, whether we
would be justified in acting, under this act, personally, in the
character of commissioners, during the session of a court; and
could we be satisfied that we had authority to do so, we would
cheerfully devote such part of our time as might be necessary for
the performance of the service. But we confess we have great
doubts on this head. The power appears to be given to the court
only, and not to the judges of it; and as the secretary at war
has not a discretion, in all instances, but only in those where
he has cause to suspect imposition or mistake, to withhold a
person recommended by the court from being named on the pension
list, it would be necessary for us to be well persuaded we pos-
sessed such an authority, before we exercised a power, which
might be a means of drawing out of the public treasury as affec-
tually as an express appropriation by law. We do not mean, howev-
er, to preclude ourselves from a very deliberate consideration,
whether we can be warranted in executing the purposes of the act
in that manner, in case an application should be made.
"'No application has yet been made to the court, or to
ourselves individually, and therefore, we have had some doubts as
to the propriety of giving an opinion in a case which has not yet
come regularly and judicially before us. None can be more sensi-
ble than we are of the necessity of judges being, in general,
extremely cautious in not intimating an opinion, in any case,
extra-judicially, because we well know how liable the best minds
are, notwithstanding their utmost care, to a bias, which may
arise from a preconceived opinion, even unguardedly, much more,
deliberately, given; but in the present instance, as many unfor-
tunate and meritorious individuals, whom congress have justly
thought proper objects of immediate relief, may suffer great
distress, even by a short delay, and may be utterly ruined, by a
long one, we determined, at all events, to make our sentiments
known as early as possible, considering this as a case which must
be deemed an exception to the general rule, upon every principle
of humanity and justice; resolving, however, that so far as we
are concerned, individually, in case an application should be
made, we will most attentively hear it; and if we can be con-
vinced this opinion is a wrong one, we shall not hesitate to act
accordingly, being so far from the weakness of supposing that
there is any reproach in having committed an error, to which the
greatest and best men are sometimes liable, as we should be, from
so low a sense of duty, as we think it would not be the highest
and most deserved reproach that could be bestowed on any men
(much more on judges) that they were capable, from any motive, of
preserving against conviction in apparently maintaining any
opinion which they really thought erroneous.' " Hayburns Case, 2
Dall. (2 U.S.) 409-414 (1792).
Getting back to U.S. v. Ferriera, Justice Taney reveals a great
deal about the statutory legal principles, in tribunal proceed-
ings, and there can be no doubt that this kind of statutory
jurisdiction exists and has been exercised, or that it could be
shrouded in the disguise of institutions and offices created
originally under Article III of the Constitution. The question
remains: Is there such a jurisdiction where income taxes are con-
cerned? and, Is there any way of proving it? With what you've
already seen, you're already halfway there; we merely need to
link things together a little further.
In 1855, just four years after U.S. v. Ferriera, the supreme
Court of the United States heard the case of Murray's Lessee et
al., v. Hoboken Land and Improvement Co., 18 How. (59 U.S.) 272,
15 L.Ed. 372. That case arose out of the act of May 15, 1820 (3
Stat. 592). The main question was, whether the issuing, by the
solicitor of the Treasury, of what was denominated in the statute
a warrant of distress, against a defaulting collector of revenue,
was in conflict with the Constitution. The court held the law was
valid, and not inconsistent with the Constitution. The decision
was placed mainly on the ground that the ancient common law of
England recognized a summary remedy for the recovery of debts due
to the government, which case cited Martin v. Mott, and U.S. v.
Ferriera, previously discussed, as authority, to explain the
relationship a collector of the revenue bore to the United States
government, and the legitimate means by which the government
could collect debts incurred by the collector for revenue not
transferred to the Treasury. Re Meador, Fed. Case No. 9,375, 16
Fed. Cas. 1294, 1299. Don't forget, this case, Murray's Lessee
v. Hoboken, was heard before any income tax was ever imposed by
Congress.
Justice Curtis, for the court, says this about the relationship
the collector bears to the government, or, rather, the jurisdic-
tion that encompasses that relationship:
"That the auditing of the accounts of a receiver of public
monies may be, in an enlarged sense, a judicial act, must be
admitted. So are all those administrative duties the performance
of which involves an inquiry into the existence of facts and the
application of them torules of law. In this sense the act of the
President in calling out the militia under the act of 1795, 12
Wheat. 19, or of a commissioner who makes a certificate for the
extradition of a criminal, under a treaty, is judicial. But it is
not sufficient to bring such matters under the judicial power,
that they involve the exercise of judgment upon law and fact.
United States v. Ferriera, 13 How. 40. It is necessary to go
further, and show that not only the adjustment of the balances
due from accounting officers may be, but from their nature must
be, controversies to which the United States is a party, within
the meaning of the second section of the third article of the
constitution. We do not doubt the power of congress to provide by
law that such a question shall form the subject-matter of a suit
in which the judicial power can be exerted. The act of 1820 makes
such a provision for reviewing the decision of the accounting
officers of the treasury. But, until reviewed, it is final and
binding; and the question is, whether its subject-matter is
necessarily, and without regard to the consent of congress, a
judicial controversy. And we are of opinion it is not.
"Among the legislative powers of Congress are the powers 'to
lay and collect taxes, duties, imposts, and excises; to pay the
debts, and provide for the common defence and welfare of the
United States, to raise and support armies; to provide and main-
tain a navy, and to make all laws which may be necessary and
proper for carrying into execution those powers.' What officers
should be appointed to collect the revenue thus authorized to be
raised, and to disburse it in payment of the debts of the United
States; what duties should be required of them; when and how, and
to whom should they account, and what security should they fur-
nish, and to what remedies they should be subjected to enforce
the proper discharge of their duties, congress was to determine.
In the exercise of their powers, they have required collector of
customs to be appointed; made it incumbent on them to account,
from time to time, with certain officers of the treasury depart-
ment, and to furnish sureties, by bond, for the payment of all
balances of the public money which may become due from them. And
by the act of 1820, now in question, they have undertaken to
provide summary means to compel these officers - and in case of
their default, their sureties - to pay such balances of the
public money as may be in their hands.
"The power to collect and disburse revenue, and to make all
laws which shall be necessary and proper for carrying that power
into effect, includes all known and appropriate means of effectu-
ally collecting and disbursing that revenue, unless some such
means should be forbidden in some other part of the constitution.
The power has not been exhausted by the receipt of the money by
the collector. Its purpose is to raise money and use it in pay-
ment of the debts of the government; and, whoever may have pos-
session of the public money, until it is actually disbursed, the
power to use those known and appropriate means to secure its due
application continues.
"As we have already shown, the means provided by the act of
1820 do not differ in principle from those employed in England
from remote antiquity - and in many of the States, so far as we
know without objection - for this purpose, at the time the con-
stitution was formed. It may be added, that probably there are
few governments which do or can permit their claims for public
taxes, either on the citizen or the officer employed for their
collection or disbursement, to become subjects of judicial con-
troversy, according to the course of the law of the land. Impera-
tive necessity has forced a distinction between such claims and
all others, which has sometimes been carried out by summary
methods of proceeding, and sometimes by systems of fines and
penalties, but always in some way observed and yielded to.
"It is true that in England all these proceedings were had
in what is denominated the court of exchequer, in which Lord Cook
says, 4 Inst. 115, the barons are the sovereign auditors of the
kingdom. But the barons exercised in person no judicial power in
auditing accounts, and it is necessary to remember that the
exchequer includes two distinct organizations, one of which has
charge of the revenue of the crown, and the other has long been
in fact, and now is for all purposes, one of the judicial courts
of the kingdom, whose proceedings are and have been as distinct,
in most respects, from those of the revenue side of the excheq-
uer, as the proceedings of the circuit court of this district are
form those of the treasury; and it would be an unwarrantable
assumption to conclude that, because the accounts of receivers of
revenue were settled in what was denominated the court of excheq-
uer, they were judicial controversies between the king and his
subjects, according to the ordinary course of the common law or
equity. The fact, as we have already seen, was otherwise.
"It was strongly urged by the plaintiff's counsel, that
though the government might have the rightful power to provide a
summary remedy for the recovery of its public dues, aside from an
exercise of the judicial power, yet it had not done so in this
instance. That it had enabled the debtor to apply to the judicial
power, and having thus brought the subject-matter under its
cognizance, it was not for the government to say that the sub-
ject-matter was not within the judicial power. That if it were
not in its nature a judicial controversy, congress could not make
it such, nor give jurisdiction over it to the district courts. In
short, the argument is, that if this were not, in its nature, a
judicial controversy, congress could not have conferred on the
district court power to determine it upon a bill filed by the
collector. If it be such a controversy, then it is subject to the
judicial power alone; and the fact that congress has enabled the
district court to pass upon it, is conclusive evidence that it is
a judicial controversy.
"We cannot admit the correctness of the last position. If we
were of opinion that this subject-matter cannot be the subject of
judicial controversy, and that, it cannot be made a subject of
judicial cognizance, the consequence would be, that the attempt
to bring it under the jurisdiction of a court of the United
States would be ineffectual. But the previous proceedings of the
executive department would not necessarily be affected thereby.
They might be final, instead of being the subject of judicial
review.
"But the argument leaves out of view an essential element in
the case, and also assumes something which cannot be admitted.
"It assumes that the entire subject-matter is or is not, in
every mode of presentation, a judicial controversy, essentially,
and in its own nature, aside from the will of congress to permit
it to be so; and it leaves out of view the fact that the United
States is a party.
"It is necessary to take into view some settled rules.
"Though, generally, both public and private wrongs are
redressed through judicial action, there are more summary extra-
judicial remedies for both. An instance of extra-judicial redress
of a private wrong is, the recapture of goods by their lawful
owner; of a public wrong, by a private person, is the abatement
of a public nuisance; and the recover of public dues by a summary
process of distress, issued by some public officer authorized by
law, is an instance of redress of a particular kind of public
wrong, by the act of the public through its authorized agents.
There is, however, an important distinction between these. Though
a private person may take his property, or abate a nuisance, he
is directly responsible for his acts to the proper judicial
tribunals. His authority to do these acts depends not merely on
the law, sufficient to constitute that authority; and he may be
required, by an action at law, to prove those facts; but a public
agent, who acts pursuant to the command of a legal precept, can
justify his act by the production of such precept. He cannot be
made responsible in a judicial tribunal for obeying the lawful
command of the government; and the government itself, which gave
the command, cannot be sued without its own consent.
"At the same time there can be no doubt that the mere ques-
tion, whether the collector of the custom is indebted to the
United States, may be one of judicial cognizance. It is competent
for the United States to sue any of its debtors in a court of
law. It is equally clear that the United States may consent to be
sued, and may yield this consent upon such terms and under such
restrictions as it may think just. Though both the marshall and
the government are exempt from suit, for anything done by the
former in obedience to legal process, still, congress may provide
by law, that both, or either, shall, in a particular class of
cases, and under such restrictions as they may think proper to
impose, come into a court of law or equity and abide by its
determination. The United States may thus place the government
upon the same ground which is occupied by private persons who
proceed to take extra-judicial remedies for their wrongs, and
they may do so to such extent, and with such restrictions, as may
be thought fit.
"When, therefore, the act of 1820 enacts, that after the
levy of the distress warrant has been begun, the collector may
bring before a district court the question, whether he is indebt-
ed as recited in the warrant, it simply waives privilege which
belongs to the government, and consents to make the legality of
its future proceedings dependent on the judgment of the court; as
we have already stated in case of a private person, every fact
upon which the legality of the extra-judicial remedy depends may
be drawn into question by a suit against him. The United States
consents that this fact of indebtedness may be drawn in question
by a suit against them. Though they might have withheld their
consent, we think that, by granting it, nothing which may be a
subject of judicial cognizance is brought before the court.
"To avoid misconstruction upon so grave a subject, we think
it proper to state that we do not consider congress can either
withdraw from judicial cognizance any matter which, from its
nature, is the subject of a suit at the common law, or in equity,
or admiralty; nor, on the other hand, can it bring under the
judicial power a matter which, from its nature, is not a subject
for judicial determination. At the same time there are matters,
involving public rights, which may be presented in such form that
the judicial power is capable of acting on them, and which are
susceptible of judicial determination, but which congress may or
may not bring within the cognizance of the courts of the United
States, as it may deem proper. Equitable claims to land by inhab-
itants of ceded territories form a striking instance of such a
class of cases; and as it depends upon the will of congress
whether a remedy in the courts shall be allowed at all in such
cases, they may regulate it and prescribe such rules of determi-
nation as they may think just and needful. Thus it has been
repeatedly decided in this class of cases, that upon their trial
the acts of the executive officers, done under authority of
congress, were conclusive, either upon particular facts involved
in the inquiry or upon the whole title. Foley v. Harrison, 15
How. 433; Burgess v. Gray, 16 How. 48; -----v. The Minnesota
Mining Company at the present term.
"It is true, also, that even in a suit between private
persons to try a question of private right, the action of the
executive power, upon a matter committed to its determination by
the Constitution and laws, is conclusive. Luther v. Borden, 7
How. 1; Doe v. Braden, 15 How. 635.
"To apply these principles to the case before us, we say
that, though a suit may be brought against the marshall for
seizing property under such a warrant of distress, and he may be
put to show his justification; yet the action of the executive
power in issuing the warrant, pursuant to the act of 1820, passed
under the powers to collect and disburse the revenue granted by
the constitution, is conclusive evidence of the facts recited in
it, and of the authority to make the levy; that though no suit
can be brought against the United States without the consent of
congress, yet congress may consent to have a suit brought, to try
the question whether the collector be indebted, that being a
IDENTIFYING LEGISLATIVE PROCESS AND
EXPOSING THE LEGISLATIVE TRIBUNAL
1. Behold! Newsletter, September 1989
Copy Right: September 1989
by Randy L. Geiszler, email: behold@teleport.com
As many of you may already understand the government for the
united States of America, as well as the governments for the
several States in America, as intended by the founders thereof,
are supposed to be tripartite in there design; that is, they are
to be composed of three branches. If you study the subject you
will find that the general purpose of this tripartite design is a
system of checks and balances to assure that the functionaries of
government are made available to the Citizen to hold government
within its legitimate scope of authority. This is a very basic
principle of our Republican form governments which is extensively
discussed in a pamphlet by Robert W. Wangrud entitled Triune
Republic.
The questions that will be discussed here are: (1) Which branch
of government can take legitimate personal cognizance of the
organic State Citizen? and, (2) What facts can expose illegal
process, and its execution, when issued from a branch of govern-
ment that has no right to exercise direct authority upon the
organic State Citizen?
As many of you may already know the purpose of the judicial
branch of government was to interpose its authority whenever the
other two branches attempted to interact with the Citizen. The
judiciary was intended to be made available to the Citizen to
question the legitimacy of the actions of the other two branches
of government.
For instance, the Sixth Article in Amendment of the Constitution
for the united States of America requires an indictment to bring
criminal charges. To obtain an indictment an executive officer,
who is charged with the duty to enforce the laws and constitu-
tion, must bring his accusation before the judiciary. Only
through the judiciary can the indictment issue, followed by
judicial process, summons or warrant, to compel the appearance of
the party served. The enforcement officer has no right to issue
his process, summons or warrant, directly upon the organic State
Citizen.
The legislature is charged with the duty of passing legislation,
the executive department is charge with the duty of enforcing
legislation, and the judiciary is charge with the duty of set-
tling controversies and case between Citizens or Citizens and
their government. Since the judicial branch was intended to be a
check between the Citizens and the government they created, the
Citizen is only amenable to judicial process. If the legislative
or executive branches could issue process directly upon the
Citizen, then the judicial branch would not be interposed for our
protection. Only where the Citizen has become a part of govern-
ment is he amenable to process directly issued from some branch
of government other than the judiciary. For instance, a collec-
tor of the internal revenue, who has entered into an agreement or
commission to collect the revenue and to hold and transmit the
public money to the treasury, could be compelled, by process
directly from the Secretary of the Treasury, to transmit the
public money he holds. This is simply because the collector is
doing a job for the government as one of its internal parts. If
the judiciary were to interpose its authority, with reference to
the collector, it would be a violation of separation of powers,
since the executive, according to statute and the constitution,
has the power to regulate its own officers and employees. Even
if a court is authorized by the legislature (legislative power)
to interpose its authority, in the instance of the collector of
the revenue, the interposition is legislative in character and is
an exercise of mere legislative (statutory) authority, wherein
the court is a legislative tribunal and the judges thereof are
merely legislative commissioners. (See BEHOLD!, July, 1989, Vol.
4, No. 7.)
By the same token, if any organic State Citizen takes upon him-
self to become a functionary of the government, by exercising its
powers, assuming its franchises, or stipulating to statutory
agreements with it, then he to would be treated like the collec-
tor of the revenue and be amenable to administrative process, to
compel him to do the duties he has assumed. (e.g. the status of
"Taxpayer", "licensee", "corporation" and etc.)
On the other hand, the organic State Citizen that has not assumed
such duties, and who stands in his original relationship to
government, as a Citizen, is not amenable to statutory process
issued directly by the executive, or by legislative agencies or
officers of the government.
How can we tell the differences between what type of process has
issued against us, when the process purports to be judicial,
while it is in actuality legislative process? As an example let
us take a Uniform Traffic Citation (summons) and Complaint into
view.
Traffic citations are issued by a city, county or state police
officer. For purposes of issuing traffic citations state stat-
utes define all police officers, whether city, county or state,
under the same definition, whether the classification given them
be "police officer", "law enforcement officer" or some other
similar designation. So, for the purposes of traffic citations
all these officers can, alike, be treated as state enforcement
officers, executive in their character, exercising legislative
power, according to legislative edict (statute). When these
officers issue their own uniform citations they do so by virtue
of a statute which authorizes them to do so. These officers
issue own their citation directly, which constitutes both a
"summons" (process) and complaint (accusation). They do not go
before any judicial body, with a verified (upon oath or affirma-
tion) complaint, nor do they request the issue of process from a
judicial body. They merely make their own complaint and issue
their own process directly upon the party to whom it is directed.
This is our first indication that a Uniform Traffic Citation and
Complaint is not judicial process, because directly issued from
an executive officer by authority of legislative enactment.
Once the officer has issued his summons and complaint he returns
service thereof to a so-called court, that is, he files the
complaint and verifies service of the summons in the so-called
court. The government would have you believe that the citation
and complaint are some how converted, by being filed in the
tribunal, and would have you further believe that the summons is
judicial process. Nonetheless, there is no justification for
claiming that legislative process can give rise to judicial venue
or jurisdiction. As an example, when process is issued by Con-
gress, to compel attendance of one of its members, no courts
jurisdiction is, or can be, interposed to enforce the legislative
process; and, even if the legislative process where filed in a
court, it would not give rise to judicial power since the process
is within the exclusive cognizance of the legislature (statute).
The fact is that the process is strictly legislative, issued and
served by an executive officer, giving rise only to an adminis-
trative proceeding. It could be said that the Citation and
Complaint are merely administrative process and that the so-
called court, which it is filed in, is merely an administrative
tribunal of exclusive legislative jurisdiction.
Now let us look at the face of the citation and complaint to see
if we can show that it is not judicial process. Bona fide judi-
cial process must have certain attributes on its face to disclose
that it is truly judicial. Among these attributes are, the name
or title of the court from whence it issued; the term of the
court; the signature of the issuing clerk or judge of the court;
and, the seal of the court. Traffic citations are generally
deficient in all four attributes, having none of them on their
face, which is proof that the process is not judicial.
The Citation might tell you what so-called court you are to
appear in, but the citation is not captioned in the name or title
of the court, indicating that it was not issued by the court, but
is merely returned their by the executive officer pursuant to
legislative edict (statute).
The citation does not bear the term of the court which is neces-
sary to disclose that it was issued from a judicial court, while
sitting as such, in term time, indicating that the court, even if
a judicial body for certain purposes, is not acting as a judicial
body for purposes of the citation.
The citation does not bear the signature of the judge or clerk of
the court, but, instead bears the signature of the officer,
indicating that he, not the court, issued the process (summons).
And finally, the citation does not bear the seal of the court,
indicating that the process was not issued under the courts
authority, and was issued without the judicial power.
These facts can be depended upon to show that the process is not
judicial. In the mean time we can state affirmative facts, as in
the example affidavit appearing in the August, 1989, issue of
Behold!, to show that we are only amenable to judicial process.
We can assert that the process issued, and was served, within a
legislative venue, under exclusive legislative authority, by an
executive (or legislative) officer, without judicial cognizance,
and that the facts related to the status of the party served,
show that process may only be served upon him in a judicial
venue, from a purely judicial court, taking judicial cognizance,
as a purely judicial function.
The facts could be related in a petition for writ of habeas
corpus, where the party has been incarcerated on the legislative
process, and it could be shown how the process, having issued
outside its legitimate venue, on a party immune thereto, is not
sufficient to make the restraint of his liberty legal or lawful.
On the return to a writ of habeas corpus the state may depend
upon the legislative process, treating of it as judicial process,
while we can show that the process on its face is not judicial
within the constitutional meaning. In addition we can make a
showing of facts that prove we are immune to service of such
internal administrative legislative process.
Should this fail, and our discharge be denied on the habeas
corpus hearing, according to Hurd on Habeas Corpus, pages 264 -
267 (reprints available from BEHOLD!), we have a right to file
suit for false return to the writ of habeas corpus. On the suit
for false return the validity of the process, as well as the
facts which purport to support it, can be brought into question
before a jury. If the jury decides that the return to the writ
of habeas corpus is false, an alias habeas corpus can be applied
for, based on the verdict of the jury, and the process could not
be introduced to evidence the validity of the incarceration on
the subsequent habeas corpus.
The legal assertions set out above should not be confused with
the facts that support them, that is, arguments and facts should
not be intermixed in affidavits. Affidavits are strictly for the
assertion of facts in a fashion that is not argumentative or
conclusive, while legal arguments should be saved for such time
as the facts have been established and it is necessary to show
whether or not a principle of law or statute should apply accord-
ing to the facts. Therefore in treating of the above subject you
should separate facts from the legal arguments you intend the
facts to support, reserving each for their proper time.
In the past we have mistakenly attacked the complaint rather than
the summons or warrant. A complaint, information, or indictment
are not process, but, instead, are the accusation. The summons,
or writ of summons, as it used to be called, or the warrant, are
process, and it is these instruments that institute the proceed-
ings against you. While the process issues on the basis of the
complaint, if we intend to challenge venue and personal jurisdic-
tion, it is the service of process, not the complaint, which must
be attacked in the first instance.
If you are immune to the service of legislative process, then,
even if the summons or warrant were actually served upon you, the
service is illegal and void and cannot attach the personal juris-
diction of the legislative tribunal. When we are immune to
service of legislative process it is proper to demand that the
service be quashed as illegal and void. If the service of proc-
ess is quashed the cause cannot be continued because the party
cannot legally be brought before the legislative tribunal.
If the legislative tribunal refuses to quash the service of
process, extraordinary remedies, such as mandamus could be used
to make the legislative tribunal and judge show cause why it
should be allowed to treat the process as valid. When the legis-
lative tribunal refuses to quash process illegally served, it is
an abuse of discretion, on the part of the judge responsible,
which is cognizable on writ of mandamus. While the discretion of
a judge may not be coerced by mandamus, an abuse of discretion
may be corrected by writ of mandamus.
Other remedies may also be available. No remedy should be used
until you have done a full investigation of the legitimate pur-
pose of the remedy to determine whether it can properly be used
for the purposed you intend. Nonetheless, if you are immune to
the service of legislative process, because you are outside the
venue or scope of the exclusive legislative power, exercised in
service of legislative process, then it is proper to challenge
the validity of the process and the service thereof. In other
words, if it cannot be shown that you can be brought within the
meaning of "person", as used in the statute under which your are
charged and summoned, you are outside the venue of the process
and immune to service of process pretended to be made under
statutory authority.
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