Presentation on theme: "Discussion of the Common Law. Phoeve. V. Jay 1 Ill. 268 What is ment by the term constitution as applied to government? It is the form of government instituted."— Presentation transcript:
Discussion of the Common Law
Phoeve. V. Jay 1 Ill. 268 What is ment by the term constitution as applied to government? It is the form of government instituted by the people in their sovereign capacity, in which first principles and fundamental law are established. The constitution is the supreme, permanent and fixed will of the people in their original, unlimited and sovereign capacity, and in it are determined the condition, rights and duties of every individual of the community.
Phoeve. V. Jay 1 Ill. 268 From the decrees of the constitution there can be no appeal, for it emanates from the highest source of power, the sovereign people. Whatever condition is assigned to any portion of the people by the constitution, is irrevocably fixed, however unjust in principle it may be. The constitution can establish no tribunal with power to abolish that which gave and continues such tribunal in existence. But a legislative act is the will of the legislature, in a derivative and subordinate capacity. The constitution is their commission, and they must act within the pale of their authority, and all their acts, contrary or in violation of the constitutional charter, are void. An act of the legislature is different, and if it contravenes the constitution, no repetition of it can render it valid.
Bullock v. Geomble 45 Ill. 218 By the phrase the law of the land, has always been held to be by due process of the common law; so that this clause in effect affirms the right of trial according to the process and proceedings of the common law. 3 Story on Const. 661
The People ex rel. v. McRoberts 62 Ill. 38 A constitution must be expounded in its plain and obvious meaning. It is an instrument, the truest exposition of which is that which best harmonizes with its design and object. As has been said by Judge Story: Constitutions are of a practical nature, founded on the common business of life, designed for common use, and fitted for common understandings. The people make them, the people adopt them, and the people must be supposed to read them with the help of common sense.
The People ex rel. v. McRoberts 62 Ill. 38 The prime object of a Bill of Rights is, to place the life, liberty, and property of the citizen beyond the control of legislation, and to prevent either legislatures or courts from any interference with or deprivation of the rights therein declared and guarantied, except upon certain conditions. It would be the merest delusion to declare a subsisting right as essential to the acquisition and protection of property, and make its enjoyment dependent upon legislative will or judicial interpretation. Such absurdity can not be ascribed to the framers of the instrument. Neither can the constitution be regarded as a plaything; to be made the sport of any department of the government; to be annulled by non-action, or to be operative at the mere pleasure of those who are bound to obey and respect it; but it is a solemn instrument emanating from the people, declaratory of rights and restraining in its operation, and which can only be abrogated by the sovereignty which created it.
Hale v. Henkel, 240 U.S. 43, 74 The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbor to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights. Hale v. Henkel, 240 U.S. 43, 74
COMMON LAW Un-commonly good Generally, the term "common law" designates all that part of the positive law, juristic theory, and ancient custom which is of general and universal application, as distinguished from local or special laws, rules, or customs.
COMMON LAW Un-commonly good The term "common law" has been used in different senses. In its widest sense, the term may designate all that part of the positive law, juristic theory, and ancient custom of any state or nation which is of general and universal application, as distinguished from local or special laws, rules, or customs. As concerns its force and authority in the United States, the phrase designates that portion of the common law of England, including such acts of Parliament as where applicable, which had been adopted and was in force here at the time of the revolution. This, so far as it has not since been expressly abrogated, is recognized as an organic part of the jurisprudence of most of the United States.
COMMON LAW Un-commonly good The common law is one of the forms of municipal law. It is a beautiful system, containing the wisdom and experience of ages; like the people it ruled and protected, it was simple and crude in its infancy, and became enlarged, improved, and polished, as the nation advanced in civilization, virtue, and intelligence. However, little of the common law can be traced to its sources except that which was adopted from the custom of merchants. The common law is a system of elementary rules and of general judicial declarations of principles, which are continually expanding with the progress of society, adapting themselves to the gradual changes of trade, commerce, arts, inventions, and the exigencies and usages of the country, and it has established itself in the history of jurisprudence because of its flexibility in its recognition of, and adaptation to, changing times and mores.
COMMON LAW Un-commonly good The term common law is frequently used in opposition or contradistinction to the written or statute law. In this sense, common law includes those principles, usages, and rules of action, applicable to the government and security of persons and property, which do not rest for their authority on any express and positive declarations of the will of legislative bodies. By this, it is axiomatic that common law cannot exist in the presence of statutory law, and vice a versa. MM
COMMON LAW Un-commonly good Law merchant as part of common law. The law merchant at first was not judicially noticed by the common-law courts, but proof was required to show what it was when they would recognize and enforce it. Soon, however, it began to insinuate itself into the common law, by the courts taking judicial notice of it, until its fibres became so intimately interwoven with the body of common law itself that a line of demarcation between the two could not be drawn, and finally it, or at least that portion of it which was of universal application throughout the realm, became absorbed by, and really constituted a part of, the common law.
COMMON LAW Un-commonly good Evidence. Judicial decisions of common-law courts are the most authoritative evidence of what constitutes the common law. While it has been stated that the acts of Parliament and the judicial decisions handed down prior to the fourth year of James the First must be looked to for evidence of what the common law is, it has also been declared that a common-law rule or doctrine may be established by reference to cases decided in England after the fourth year of James the First if the principle is clearly established and applicable to the situation to which it is sought to be applied.
COMMON LAW Un-commonly good The common law of England, so far as applicable and of a general nature, is in full force in Illinois until repealed by legislative authority. There is no national common law operative as such throughout the United States, and the adoption and application of the common law were matters left to the several states for determination.
COMMON LAW Un-commonly good This statute, without the exceptions, was passed by the general convention of the Colony of Virginia, May, 1776, and in its present form was carried into the legislature of the Indiana Territory by the Act of September 7, 1807, was in force in the territory of Illinois and was reenacted by the first state legislature by Act of February 4, 1819, and has been retained in the same form in succeeding revisions. The statute is declaratory of what was the law by which the inhabitants of the territory now constituting the State of Illinois were governed, and of the rights, privileges, and immunities to which they were entitled ever since Anglo-Saxon civilization first obtained a foothold in it.
COMMON LAW Un-commonly good As a result of the Act, the great body of the English common law became, so far as applicable, in force in this state, and remains in force except so far as it has been modified or repealed by statute, or changed or modified by custom as found in decisions of our courts. The common law, when applicable, is as much a part of the law of the state, where it has not been expressly abrogated by statute, as the statutes themselves. In other words, Illinois is a common law state.
COMMON LAW Un-commonly good Basis or part of Illinois law Common law in England is basis of law of Illinois. Mudge v. Mitchell Hutchins & Co., 1944, 54 N.E.2d 708, 322 Ill.App. 409Mudge v. Mitchell Hutchins & Co., 1944, 54 N.E.2d 708, 322 Ill.App Laws of Illinois include Constitution, statutes, and rules applied in administration of justice as construed and applied by court of last resort in Illinois, as well as common law. Kinross v. Cooper, 1922, 224 Ill.App. 111Kinross v. Cooper, 1922, 224 Ill.App. 111.
COMMON LAW Un-commonly good In addition, other maxims and principles have been applied, such as ignorance of the law excuses no one, and everyone of sound and pure mind is bound at his peril to take knowledge of both the common and statute law; the law only favors the vigilant; the law abhors forfeitures and will show them no mercy or favor; persons must so use their own property and so exercise their own privileges that they do not thereby destroy or peril the rights of others; the law does not permit a person to do indirectly what he cannot do directly; and the law does not require the performance of a useless act.
COMMON LAW Un-commonly good Definitions. The General Assembly has the power to make a reasonable definition of the terms used in an act, even though such definitions do not correspond with those contained in other acts. Statutory definitions control in the construction of the terms in an act, and the common-law definitions of those terms must yield to the statutory definitions.
COMMON LAW Un-commonly good Persons A statute providing that in the construction of statutes the word "person" or "persons," as well as all words referring to or importing "persons," may be applied to bodies politic and corporate as well as individuals does not authorize a construction of a statute containing words importing a corporation as applying to a natural person. Goddard v. Chicago & N.W. Ry. Co., 104 Ill. App. 526, 1902 WL 2225 (2d Dist. 1902), aff'd, 202 Ill. 362, 66 N.E (1903) (construing a prior version of 5 ILCS 70/1.05). Goddard v. Chicago & N.W. Ry. Co., 104 Ill. App. 526, 1902 WL 2225 (2d Dist. 1902)202 Ill. 362, 66 N.E (1903)5 ILCS 70/1.05
COMMON LAW Un-commonly good Words defined The words in a statute may be defined by common usage, by previous judicial construction, as well as by statutory definition, to render the statute certain. People v. Williams, 79 Ill. App. 2d 56, 222 N.E.2d 915 (2d Dist. 1967). People v. Williams, 79 Ill. App. 2d 56, 222 N.E.2d 915 (2d Dist. 1967)
Are these statutes certain? The term "natural person" or "natural persons," used in the Banking Act (ch. 16 1/2, ¶101 et seq.), extends to and applies to "bodies politic" and "corporate." Fidelity Inv. Assn. v. Emmerson, 1924, 235 Ill.App. 518, reversed on other grounds 318 Ill. 548, 149 N.E (5 ILCS 70/1.14) (from Ch. 1, par. 1015) Sec "State," when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words "United States" may be construed to include the said district and territories. (Source: Laws 1945, p ) § "State," when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words "United States" may be construed to include the said district and territories. (625 ILCS 5/1 173) (from Ch. 95 1/2, par ) Sec Resident. (a) Every natural person who resides in this state shall be deemed a resident of this State. (b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois. (c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois. (Source: P.A ) (625 ILCS 5/1 159) (from Ch. 95 1/2, par ) Sec Person. Every natural person, firm, copartnership, association or corporation. (Source: P.A ) (625 ILCS 5/1 195) (from Ch. 95 1/2, par ) Sec State. A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada. (Source: P.A )
COMMON LAW Un-commonly good Construction as including or binding sovereign The rights of the sovereign are never impaired by a general legislative enactment unless such an intent is expressly declared in the statute, and the words of a statute applying to private rights do not affect the rights of the state. The state is not bound by or included in any act of the General Assembly unless expressly named or necessarily implied to give effect to the act, although the rule that general legislative enactments are not applicable to the state is not violated when the state is made subject to the provisions thereof by reason of the expressed intention of the General Assembly to make it subject thereto. In common usage the word "person" does not include the sovereign, and statutes employing the word are generally construed to exclude the sovereign, although the purpose, subject matter, context, legislative history, and executive interpretation of a statute are aids to construction which may indicate an intent, by the use of the term "person," to bring the state or nation within the scope of the statute. According to the Statute on Statutes, the words "person" or "persons," as well as all words referring to or importing persons, may extend and be applied to bodies politic and corporate as well as individuals.[
The joy of Citizenship vs. the bane of citizenship Citizenship - Are you a natural born Citizen, or a naturalized Person that is now a citizen? (Note the capitalization of "C" in Citizen) MM No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States. U.S.C. Article II, Sect. 1 No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. U.S.C. Article I, Sect. 3 No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. U.S.C. Article I, Sect. 2 Clearly, United States, when used pre-14th Amendment, embraces the several States, when one must be a Resident (otherwise to reside) WITHIN the United States. MM
The joy of Citizenship vs. the bane of citizenship In review of the three articles above, Citizenship pertains to one's rights in relationship to the United, or "several" states, and "Inhabitant" pertains to one's relationship to the individual or particular "State". People inhabit States, and ARE Citizens of the United States, meaning they enjoy their Inhabitant status among any State they may live within. The President has to be naturally born, or made so through a political process, a Citizen of the United States, and must live within the several states for 14 years. Representatives and Senators have to be Citizens, of either natural or political origination, and NOT inhabit a particular State from which they are chosen. All aforementioned Citizens are "CAPITALIZED".
Jefferson knew….. I regret that I am now to die in the belief that the useless sacrifice of themselves by the generation of 1776, to acquire self-government and happiness to their country, is to be thrown away by the unwise and unworthy passions of their sons, and that my only consolation is to be that I live not to weep over it. If they would but dispassionately weigh the blessings they will throw away against an abstract principle more likely to be effected by union than by scission, they would pause before they would perpetrate this act of suicide on themselves, and of treason against the hopes of the world. To yourself, as the faithful advocate of the Union, I tender the offering of my high esteem and respect. Source: Memoirs, Correspondence, and Private Papers of Thomas Jefferson, vol. 4, Thomas Jefferson Randolph, ed., 1829, pp
The superfluous, nefarious, 14th Amendment All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States (ALREADY ADDRESSED IN ARTICLE IV, SECT. 2 The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.); nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S.C.A. Const. Amend. XIV
Now, comes the 14th Amendment. All persons born or naturalized in the United States.... Note the absence of "natural born" or "naturally born". Now, you are just born, OR naturalized.... but done so IN the United States. Before, you had to be WITHIN the United States (several States). Now, you are born IN, as in a place, as in federal jurisdiction. The amendment doesn't read, "...born within the United States...", you are born IN the United States, a real or perceived federal jurisdiction under exclusive control of Congress. Corporations are born, persons are naturalized. Some statutes refer to "natural person". I wonder, now, if a natural person is not so much a human being, but natural in the sense that a 14th amendment political persona that has been "naturalized", is now considered to be a "natural person" for the purposes of law and the equal protection clause of the 14th amendment. The term "natural person" or "natural persons," used in the Banking Act (ch. 16 1/2, ¶101 et seq.), extends to and applies to "bodies politic" and "corporate." Fidelity Inv. Assn. v. Emmerson, 1924, 235 Ill.App. 518, reversed on other grounds 318 Ill. 548, 149 N.E Aside from being born or naturalized, such persons must be, "...AND subject to the jurisdiction thereof..." There is no NATIONAL jurisdiction. There are only two kinds of jurisdiction; personal (in personam) and subject matter. Congress has exclusive legislative jurisdiction over all territories, possessions (insular and geographical), and enclaves. Subject matter jurisdiction is limited to federal questions, or issues arising from the Constitution. What is it then, that makes one "subject" to the jurisdiction of the United States, a singular entity and not a geo-political association of individual states, that thereby constitutes in personam jurisdiction? I believe it is one's own averment arising from a presumption, ignorance, or one seeking federal benefits, privileges and immunities. The 14th Amendment created subjects. Prior to that, Citizens were not subject to anything, as they were sovereign, possessing "popular sovereignty". Now, with the advent of the 14 Amendment, the aforementioned Citizens of the United States as referenced in Articles I and II, are now subordinate subjects as in citizens of the United States. The C in Citizen and the U and S in United States were all CAPITALIZED to indicate equal footing between each respectively. Now, citizen is lower case and U and S in United States are CAPITALIZED. The citizen is subject to the United States.
…AND subject to the jurisdiciton thereof… This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are all persons born or naturalized in the United States, and subject to the jurisdiction thereof. The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. Elk v. Wilkins112 U.S. 94, 5 S.Ct. 41U.S. 1884
Where did your Citizenship go? But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law. Elk v. Wilkins112 U.S. 94, 5 S.Ct. 41U.S. 1884
But my state protects my rights and Citizenship, right? Americans have unknowingly joined a modern feudal system in which they must render a percentage of their toil to their federal master. As long as they stay (even unawaredly) in that system, their constitutional rights remain waived. The non-federal state Citizenship became virtually unknown as millions of state Americans were tricked out of their sovereignty and into federal citizenshipand thus into federal jurisdiction. Today, the states have been all but replaced by corporate, federal overlays (e.g., State of… see Title 4 USC Sects ). From the book Hologram of Liberty, 6/8, Kenneth W. Royce (a.k.a. Boston T. Party)
State of….confusion (a) No person shall be relieved from liability for payment of, collection of, or accounting for any sales or use tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, on the ground that the sale or use, with respect to which such tax is levied, occurred in whole or in part within a Federal area; and such State or taxing authority shall have full jurisdiction and power to levy and collect any such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area. (b) The provisions of subsection (a) shall be applicable only with respect to sales or purchases made, receipts from sales received, or storage or use occurring, after December 31, TITLE 4 > CHAPTER 4 > § 105
State of….confusion As used in sections 105–109 of this title (a) The term person shall have the meaning assigned to it in section 3797 of title 26. (b) The term sales or use tax means any tax levied on, with respect to, or measured by, sales, receipts from sales, purchases, storage, or use of tangible personal property, except a tax with respect to which the provisions of section 104 of this title are applicable. (c) The term income tax means any tax levied on, with respect to, or measured by, net income, gross income, or gross receipts. (d) The term State includes any Territory or possession of the United States. State of Illinois, for example MM (e) The term Federal area means any lands or premises held or acquired by or for the use of the United States or any department, establishment, or agency, of the United States; and any Federal area, or any part thereof, which is located within the exterior boundaries of any State, shall be deemed to be a Federal area located within such State. TITLE 4 > CHAPTER 4 > § 110
Not only are you what you eat…you are what you say. Americans who became U.S. citizens have transposed themselves from one system into another fundamentally different from the first. They did this by declaring themselves (on applications, voter cards, tax forms, etc.) to be a U.S. citizen or a citizen of the United States. (These terms were not prevalent on forms and paperwork until after WWII.) From the book Hologram of Liberty, 6/8, Kenneth W. Royce (a.k.a. Boston T. Party)
Government Rationale: Police Power The curse of the Krispy Kreme diet.
Municipal Police Power in General The state possesses the entire police power, defined as the attribute of sovereignty in every government by which that government may protect lives, health, morals, and general welfare. Chicago National League Ball Club, Inc. v. Thompson, 108 Ill.2d 357, 483 N.E.2d 1245, 91 Ill.Dec. 610 (1985); Sherman-Reynolds, Inc. v. Mahin, 47 Ill.2d 323, 265 N.E.2d 640 (1970).
Curse of the village people Cities and villages are created to care for the general health, safety, welfare, and morals of their citizenry. However, if a municipality desires to legislate in order to meet these objectives, specific authority under the Illinois Municipal Code is indispensable; the municipality cannot act under its police power alone. The police power must be coupled with a less general and more specific power granted by the state legislature. City of Des Plaines v. Gacs, 65 Ill.App.3d 44, 382 N.E.2d 402, 22 Ill.Dec. 82 (1st Dist. 1978); Rocking H. Stables, Inc. v. Village of Norridge, 106 Ill.App.2d 179, 245 N.E.2d 601 (1st Dist. 1969); Good Humor Corp. v. Village of Mundelein, 33 Ill.2d 252, 211 N.E.2d 269 (1965); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964); Father Basils Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805 (1946). For example, as of this writing, most Illinois municipalities (necessarily excluding home rule units, which have greater power) have the power to license dogs but have no such authority to license cats. Code §
Municipal Corporations A primer. A municipal corporation has been defined as a public corporation created by government for political purposes and having subordinate and local powers of legislation. People ex rel. Mortell v. Bergman, 253 Ill. 469, 97 N.E. 695 (1912); BLACKS LAW DICTIONARY, p (8th ed. 2004). As they exist today, these public corporations can be compared with private corporations. Just as private corporations have a charter under which they are organized, so, too, municipalities have a charter in the sense that they are organized under the general law as it exists in the Illinois Municipal Code (Code), 65 ILCS 5/1-1-1, et seq. Just as shareholders control the operations of a private corporation by ratifying a charter and electing a board of directors, the citizens comprising the electorate control the workings of the public corporation by opting to form either a city or a village under one of the forms provided in the Code and by electing officials (city council or village board), who in turn carry on the business (government) and affairs of the city or village by passing and adopting ordinances (akin to bylaws passed by the board of directors of a private corporation). Today, this can appear to be nothing more than political sado-masochism. MM
Check your ticket. You may be a winner! All actions brought to enforce any fine, imprisonment, penalty, or forfeiture under any ordinance must be brought in the corporate name of the municipality as plaintiff. Illinois Municipal Code § The failure to bring the action in the name of the correct plaintiff (as when an ordinance violation is brought in the name People of the State of Illinois) is a substantial defect that makes the judgment of the trial court a nullity. People v. Rowe, 9 Ill.App.3d 460, 292 N.E.2d 432 (1st Dist. 1972). But see People v. Wiatr, 119 Ill.App.3d 468, 456 N.E.2d 686, 75 Ill.Dec. 3 (2d Dist. 1983).
Looks like due process, smells like due process, but is it due process? The pleadings in municipal ordinance prosecutions need not be drawn with the precision of a criminal indictment or information. Lawrence, supra. Consequently, it is adequate if the complaint gives the date and place of the offense, gives the name of the complainant police officer or municipal officer or agent, and adequately notifies the defendant of the charge and of the municipal ordinance that was allegedly violated, particularly if the defendant is aware of the facts that prompted the prosecution. City of Chicago v. Brown, 61 Ill.App.3d 266, 377 N.E.2d 1031, 18 Ill.Dec. 395 (1st Dist. 1978). All that is needed is the appearance of fairness and due process. For sale, one dog and pony.MM A defendant who needs more specific information can move for more specific statements of the charge; a defendant who does not do so has no basis for claiming on review that the complaint is not specific enough. City of Chicago v. Joyce, 38 Ill.2d 368, 232 N.E.2d 289 (1967); People v. Stout, 41 Ill.2d 292, 242 N.E.2d 264 (1968); City of Chicago v. Otten, 133 Ill.App.2d 57, 272 N.E.2d 844 (1st Dist. 1971). This can be done either orally, or by bill of particulars. MM
Make em work for it. Since an ordinance violation proceeding is civil in form, the defendant is entitled to demand a trial by a jury. 735 ILCS 5/ After the jury has found the defendant guilty of the violation of a municipal ordinance, the jury alone not the trial judge can determine the amount of the penalty. Village of Algonquin v. Berg, 120 Ill.App.2d 184, 256 N.E.2d 373 (2d Dist. 1970). Is this not enough incentive for EVERYONE to DEMAND a jury trial? MM Discovery in ordinance violation cases for which the only penalty is a fine is regulated by S.Ct. Rule 201(h), which commits to the discretion of the trial court the extent, if any, to which the discovery provisions of the Supreme Court Rules may be invoked. It should be noted, however, that the constitutional guaranty against self-incrimination may be invoked in an ordinance violation prosecution. City of Chicago v. Lord, 3 Ill.App.2d 410, 122 N.E.2d 439 (1st Dist. 1954), affd, 7 Ill.2d 379 (1955).
Make em work for it. In City of Chicago v. Reid, 95 Ill.App.2d 313, 237 N.E.2d 739 (1st Dist. 1968), it was held that when a defendant who was charged with municipal building code violations elected to waive filing an answer, he thereby admitted the allegations of the municipalitys complaint. Silence is equated with acquiescence. If charged, an answer must be filed. MM The municipality has the burden of proof to establish the violation of the municipal ordinance by a clear preponderance of the evidence. City of Chicago v. Abdullah, 76 Ill.App.3d 325, 395 N.E.2d 50, 32 Ill.Dec. 103 (1st Dist. 1979). Proof beyond a reasonable doubt is not required. This is the standard of proof used in civil cases. MM A defendant who challenges the validity of the ordinance must establish by clear and affirmative evidence that the ordinance, as applied to him, is palpably arbitrary, capricious, and unreasonable and bears no rational relationship to the health and safety of the community. If there is any room for a legitimate difference of opinion concerning the reasonableness of the ordinance, the legislative judgment of the municipality must prevail. Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964). So, this is the benefit of being an elector in a municipal corporation! MM
Judges suck. Juries rule! The first process in an action for violation of a municipal ordinance is a summons or warrant. Code § Before the issuance of a summons or warrant, many municipalities issue a notice of the ordinance violation in an effort to collect the fine or penalty without resorting to judicial process. A notice of this kind is not the commencement of court action. Village of Mundelein v. Ollivier, 93 Ill.App.3d 324, 417 N.E.2d 180, 48 Ill.Dec. 778 (2d Dist. 1981). The prosecution of municipal ordinance violations is hybrid in nature. City of Danville v. Clark, 63 Ill.2d 408, 348 N.E.2d 844 (1976). The proceeding is not strictly or exclusively civil or criminal but resembles both in some respects. Village of Maywood v. Houston, 10 Ill.2d 117, 139 N.E.2d 233 (1956). For this reason, problems in this area cannot be solved by a mere labeling process, and the court decisions (in Illinois and elsewhere) do not always have apparent logical consistency. What kills me is, they have the guts to admit this! MM
A horse is a horse, of course, of course, And no one can talk to a horse of course That is, of course, unless the law assumes the form of both criminal and civil, confusing even Mr. Ed. An ordinance prosecution proceeding is often characterized as civil in form but quasicriminal in character. City of Danville v. Hartshorn, 53 Ill.2d 399, 292 N.E.2d 382 (1973); City of Chicago v. Lawrence, 42 Ill.2d 461, 248 N.E.2d 71 (1969); City of Decatur v. Chasteen, 19 Ill.2d 204, 166 N.E.2d 29 (1960). Consequently, an action to recover a penalty for violation of a municipal ordinance (though quasi-criminal in character) is civil in form and is ordinarily termed a civil action (and not a criminal proceeding). Johnston v. City of Bloomington, 77 Ill.2d 108, 395 N.E.2d 549, 32 Ill.Dec. 319 (1979). It is, therefore, tried and reviewed as a civil proceeding. City of Champaign v. Elliott, 73 Ill.App.3d 373, 391 N.E.2d 1099, 29 Ill.Dec. 416 (4th Dist. 1979).
Collinsville Business License Ordinance All I wanted was permission to do what I already had a right to do…..is that so wrong?
Mind Your Business
Mind Your Business 2
Business License Defs.
Bye, bye motor vehicle code.
Shaking the license stigma. December 22, 2004 Name your favorite bureaucrat here City of some oppression 123 South Center Street Collinsville, IL Re: Business License Renewal Dear ill-informed bureaucrat, I am in receipt of the Citys notice for renewal of my business license. Since my initial application for the business license I have come to understand that the city does not have the authority to compel my conscription in procuring a license to engage in an occupation of common right. My original application for the license was made out of ignorance of the law and based solely on inconclusive propaganda disseminated by the city as to who the licensing ordinance applies. Therefore, I will decline in renewing the above referenced business license as well as rescind my original license application which was tendered in error.
Shaking the license stigma. Upon reading the ordinance(s) pertaining to business licensure and registration, I realized that I do not meet the requirements for mandatory compliance with these ordinances. These ordinances apply to Persons as defined in B and B, both of which fail to describe or include natural persons or people. Your ordinances apply to artificial or other legal entities which do not have unalienable rights and which are entities created and therefore regulated by the state. Second, the ordinances Purpose and jurisdiction statement as defined in and , states that Businesses which are located in the City are, …part of and effects the physical and economic well being of the City… I have yet to find any positive law which amalgamates my business into any part of the City. If my business, by the Citys decree and mere presence within the physical confines of the corporate municipality, becomes a part of the City then I would be an employee of the City and my business would be another governmental department. Effort has been taken to identify the word City in the ordinances as it would be in referring to a proper noun and therefore must be construed to believe that these ordinances attempts to create entities called Businesses (note the use of capitalization denoting proper noun) and therefore under the Citys purview. Let me assure you that my business (note no capitalization) is not subject to regulation by the City in these respects.
Shaking the license stigma. In reference to the Purpose and jurisdiction statements made at and , whereby it is asserted that my business necessitates special services from the City, …in the form of health inspections and other services… this statement is obtuse, nebulous and misleading. If this statement is to infer a burden by myself, and subsequently justify the existence of these ordinances then please define what other services I receive from the City that other residents do not. I understand the fairness in recipients of preferential treatment or services specific to certain classes paying for those benefits, but the mere existence of my business within the City does not place any additional burden on infrastructure or services which can be used to infer a compelling interest on the Citys part to license, regulate or surreptitiously lay a $25 tax under the guise of providing these non-existent services.
Shaking the license stigma. Lastly, a review of the Illinois Compiles Statutes, specifically (65 ILCS/5Art ), otherwise known as the Illinois Municipal Code, I fail to find any legislative act which bestows the City with the power and authority to promulgate or enforce the ordinances in question. The City does not have the power to wield authority not expressly defined in State statutes. The enacting statutes as referenced in (65 ILCS 5/Art. 11 Div. 42) POWERS OVER CERTAIN BUSINESSES clearly defines what businesses the State has subjected to the authority of the corporate municipality in regards to license, tax and regulate. As in the application of Dillons Rule, a canon of strict construction for municipalities when attempting to validate ordinances, the lesson is that any reasonable doubt as to the power or authority of a municipality is to be resolved against it. Under Dillons Rule, the state legislature is recognized as having plenary (complete) control over municipal government except as limited by the state or federal constitution. As a result of this complete legislative control, local government powers are quite limited and only extend to those powers which are:
Shaking the license stigma. (1) granted in express words; (2) necessarily implied or necessarily incident to the powers expressly granted; and (3) absolutely essential to the declared objects and purposes of the corporation – not simply convenient, but indispensable. Dillons Rule also establishes that any fair doubt by the courts as to the existence of a power is to be resolved against the municipality. In other words, if the power in-question isn't expressly authorized by the statute or the Constitution, or cannot be necessarily implied from a power that has already been authorized, it is presumed that a municipality does not have the power. I am of the opinion that a fraud has been perpetuated upon the people of Collinsville with these broadly-worded and legislatively anemic ordinances. As one who has taken the time to review the law as it is written, and not propagandized, I stand by my conclusions and respectfully decline any further adhesions with the City in respects to my enjoying an unalienable right, to engage in a private occupation of common right as a natural person, not subject to the whimsical and capricious regulation of the corporate municipality. Absent any legislative authority for the Business License Ordinance or the Business Registration Ordinance I will refrain from entertaining this matter any further. Unless you provide the Citys authority to me in writing for conscripting myself to these ordinances, rebutting my assertions made herein, within 15 calendar days from your receipt of this letter, your failure to respond will perfect my assertions under estoppel by acquiescence
Shaking the license stigma. Thank you for your time. Respectfully, Signed: Date: Encl. Copy of (65 ILCS /5Art 11) cc: Mayor City Manager Signature of notary: My commision expires: Subscribed and sworn to, before me this ____ day of ____________, 20 ____
Application of the St. Louis Earnings Tax Who is liable/subject to the tax? Unraveling the myth. Entire code found here: Earnings Tax CODE
St. Louis City Revised Code Chapter Tax Imposed This is WHO a tax is imposed upon. A tax for general revenue purposes of one percent is imposed on: A. Salaries, wages, commissions and other compensation earned after July 31, 1959, by resident individuals of the city, including the entire distributive share of any member of a partnership or association, less the amount thereof, if any, which may be shown to have been taxed under the provisions hereof to said association or partnership; B. Salaries, wages, commissions and other compensation earned after July 31, 1959, by nonresident individuals of the City for work done or services performed or rendered in the City; C. The net profits earned after July 31, 1959, of associations, businesses or other activities conducted by a resident or residents; D. The net profits earned after July 31, 1959, of associations, businesses or other activities conducted in the City by a nonresident or nonresidents; E. The net profits earned after July 31, 1959, by all corporations as a result of work done or services performed or rendered, and businesses or other activities conducted in the City.
Tax imposed on who….? Okay, so we see the tax is imposed on resident individuals, nonresident individuals, associations, businesses, and corporations. Real people are not associations, businesses or corporations. These are artificial entities. So we must now focus on resident and nonresident individuals. The code has a section especially for definitions. When a law defines a word it loses its every-day dictionary meaning because the lawmakers have assigned it a particular meaning for that law. These words are now called terms. Lets look at the definitions set forth for the earnings tax code and see where people are defined.
Definitions As used in this chapter, the following words shall have the meaning ascribed to them in this section, except where the context clearly indicates or requires a different meaning: Association means a partnership, limited partnership, or any other form of unincorporated business or enterprise, owned by two or more persons. Corporation means a corporation or joint stock association organized under the laws of the United States, the state of Missouri or any other state, territory, or foreign country or dependency. Nonresident means an individual, association, business, corporation, fiduciary or other entity domiciled outside the City. Resident means an individual, association, business, corporation, fiduciary or other entity domiciled within the City. Taxpayer means a person, whether an individual, association, business, corporation, fiduciary, or other entity required by this chapter to file a return of earnings or net profits, or to pay a tax thereon. Business means an enterprise, activity, profession, trade or undertaking of any nature conducted for profit or ordinarily conducted for profit, whether by an individual, association, or any other entity other than a corporation. Person means every natural person, association, business, or fiduciary. Whenever the term Person is used in any clause prescribing and imposing a penalty, the term as applied to associations, means the partners thereof, and, as applied to corporations, the officers thereof. Net Profits means the net income of any individual, association, or corporation remaining after deducting from the gross profits or earnings the necessary expenses of operation exclusive of payments of federal and state income taxes.
Definitions It is safe to say that we can initially rule out associations and corporations. Those are clearly artificial entities created by an act of law. So, we can assume that people MIGHT be included in the definition of resident and nonresident individuals…..Hold that thought.
Tax on what? Tax imposed. A tax for general revenue purposes of one percent is imposed on: Salaries, wages, commissions and other compensation…earned.. (Sections A and B) Net profits….earned… (Sections C, D, and E) Before a tax can be imposed on a person or thing, the tax must be based on something. Only those entities earning salaries, wages, commissions, other compensation and net profits are taxable.
Who earns that which is taxable? People can not earn profits. The code does not define profits, so we need to look to a dictionary to see what the actual definition of profits is. We will first look at a legal dictionary since we are talking about a law, and that is where we will find the legal definition as opposed to a every-day definition. Profits are defined thusly:
Profits defined. Profit, n. The excess of revenues over expenditures in a business transaction. Does that sound like what people incur when working for a living, exchanging their labor for compensation? When you work, do you receive profits, or compensation? You do not profit from losing X number of hours of your life for $. You exchange your labor for compensation. In reality, you probably lose money because your time is something you will never get back. How can $ provide a profit over the invaluable time youve lost?
Profits defined Fortunately, the code even tells us what net profits are and who can earn them… Net Profits means the net income of any individual, association, or corporation remaining after deducting from the gross profits or earnings the necessary expenses of operation exclusive of payments of federal and state income taxes. The word net modifies the term profits. For one to have net profits, they of course must have profits. Profits are only earned by individuals, associations, and corporations. Since people do not earn profits at work it is telling that the individuals identified in the Net Profits definition can only be an artificial individual. You will see later how individual can mean also a real person, but used in the context provided, applies only to artificial entities.
We know on what, now on whom? Now we know the tax is on salaries, wages, commissions and other compensation earned. We now have to determine who is earning it and subject to paying the tax. As before, we have to look at resident and nonresident individuals. Each are defined thusly:
The resident question. Nonresident means an individual, association, business, corporation, fiduciary or other entity domiciled outside the City. Resident means an individual, association, business, corporation, fiduciary or other entity domiciled within the City. At first blush, one could assume that, okay, hey, Im an individual. I guess I have to pay the tax. After all, individual is in the list. Resident and nonresident only means whether the individual lives within, or without, the City. However, that is really not what is going on here. Lets examine each tax imposed section and break it down even further.
Tax imposed in detail. A tax for general revenue purposes of one percent is imposed on: A. Salaries, wages, commissions and other compensation earned after July 31, 1959, by resident individuals of the city, including the entire distributive share of any member of a partnership or association, less the amount thereof, if any, which may be shown to have been taxed under the provisions hereof to said association or partnership; Okay, I earn salaries, wages, commissions and other compensation, but am I a resident individual? We saw that residents and nonresidents mean individuals, but that definition also includes a list of artificial entities such as associations. Lawmakers know exactly what theyre doing. To prove it, lets look at another definition within the code that shows they know how to differentiate between real and artificial entities….
St. Louis City Revised Code Chapter 1.08 Chapter 1.08 DEFINITIONS AND RULES OF CONSTRUCTION Person. "Person" includes a corporation, firm, partnership, association, organization and any other group acting as a unit as well as individuals. It also includes an executor, administrator, trustee, receiver or other representative appointed according to law. Whenever "person" is used in any section of this Code prescribing a penalty or fine, as to partnerships or associations, the word includes the partners or members thereof, and as to corporations, includes the officers, agents or members thereof who are responsible for any violation of the section. (1948 C. Ch. 1 § 2 (part): 1960 C. § ) This is a section out of the St. Louis City Revised Code that spells out the general definitions and rules of construction. It is pretty convincing that person includes all of those artificial entities in conjunction with individuals, real people, and representatives appointed by law. Looks like were screwed. But wait, it seems like the earnings tax code defined person for its own use, which supersedes the general definition. What does that definition say?
Person Person means every natural person, association, business, or fiduciary. Whenever the term Person is used in any clause prescribing and imposing a penalty, the term as applied to associations, means the partners thereof, and, as applied to corporations, the officers thereof. Okay, whats this natural person thing all about? It looks like they do know how to address real people. So, person means both people and artificial entities. It could also read Person means people and individuals., since individuals are fictitious as well. Wait, I didnt see the word person in the list of those who have a tax imposed on them. It appears that Person includes both people as well as artificial entities like businesses. On the other hand, when used in other definitions like Resident, individual is always grouped with artificial entities like associations, businesses and corporations. Therefore, we have to conclude that for people to be included in this law, the term Person would be applied. When the term individual is used, we therefore have to conclude that it is applies only to artificial entities.
Who are YOU? So, weve concluded that people are not individuals. People are persons, but persons includes both people and artificial entities. Individuals CAN mean people, but as used in this law, it pertains only to artificial entities. Residents and nonresidents do not include people. They include artificial entities (individuals, associations…). If this law was to apply to people, they would not have omitted Persons from the list of who the tax is imposed upon. If they wanted to include EVERYTHING, they would have just mentioned Person. But they did not. They specify residents (does not mention person), nonresidents (does not mention person), associations, businesses, corporations…(does not mention person).
Putting the pieces together. Tax Imposed on Salaries, wages, commissions and other compensation… and net profits of… Resident Individuals Individuals, associations, businesses, corporations, fiduciaries or other entities within the City. *The word entity is defined as: a general term for any institution, company, corporation, partnership, government agency, university or any other organization which is distinguished from individuals. Nonresident Individuals Individuals, associations, businesses, corporations, fiduciaries or other entities without the City. Associations, businesses, corporations. Again, were talking about partnerships, limited partnerships, unincorporated business, enterprise, corporations and other entities. Notice, there is no mention of Natural Persons.
Word Games A tax for general revenue purposes of one percent is imposed on: A. Salaries, wages, commissions and other compensation earned after July 31, 1959, by resident individuals of the city, including the entire distributive share of any member of a partnership or association, less the amount thereof, if any, which may be shown to have been taxed under the provisions hereof to said association or partnership;
Word Games.. Lets say it another way, A tax for general revenue purposes of one percent is imposed on: Salaries, wages, commissions and other compensation earned after July 31, 1959, by associations, businesses, corporations, fiduciaries or other entities domiciled within the city.
Word Games…. We can still say it with more specificity… A tax for general revenue purposes of one percent is imposed on: Partnerships, limited partnerships, other forms of unincorporated businesses or enterprises, owned by two or more persons, associations, other entities than corporations, corporations, joint stock associations, persons or businesses who have the power and obligation to act for another. Do you see anything that indicates a natural person here?
What about this taxpayer definition? One should not assume that they are a taxpayer. Only the law can make them a taxpayer by them engaging in a taxable activity. Under this ordinance, the taxpayer is merely the one responsible for filing returns of earnings or net profits, or paying the tax, i.e., the guy responsible for writing the check for the artificial entity.
Taxpayer continued… The definition states, Taxpayer means a person, whether an individual, association, business, corporation, fiduciary or other entity…. The only things defined as taxpayers are artificial entities. The term natural person does not appear here. If you remember, Person meant …every natural person, association, business or fiduciary. Here, taxpayer means person, but only if it is the artificial parts of person (since person can mean both real and artificial). Taxpayer, in this case, means artificial persons (individual, association, business…) and does not mention natural person. Why didnt they define taxpayer as just a person?
Put it like this… Person means people, cars, boats, trains and planes. Taxpayer means a person, whether a car, boat, train or plane. Obviously, person means people and modes of transportation. Taxpayer means person, but only the modes of transportation parts of the meaning of person.
The Individual question… Since there is no specific definition for individual, I feel it is necessary to clarify this so it not be construed to mean a natural person. The term individual is referenced by artificial entities…
Individuals cont… Definitions Employer means an individual… Nonresident means an individual… Resident means an individual…
What is a Person? Weve seen that the term person means every natural person, association, business or fiduciary. But that does not mean that every association, business or fiduciary is a natural person. Nor does it mean that every person is everything INCLUDING a natural person. The ordinance spells out these artificial entities at every turn, but the term natural person never appears anywhere but in the definitions. The rest of the ordinance refers to persons, but only those required under the code to withhold or pay taxes. Since there is no tax imposed on natural persons they are not subjects to the code. Only the artificial entities are required.
Okay, so what are persons required to do? Withholding. A. Every employer within or doing business within the City who employs one or more persons on salary, wage, commission, or other compensation basis, shall deduct at the time when earned irrespective of when paid, the tax of 1% of salaries, wages, commissions, or other compensation due by the employer to the employee and subject to tax, Wow, that doesnt look good. So employers who employ persons (meaning real and artificial) shall deduct the tax! Ouch! However, when we read on we see this, …or other compensation due by the employer to the employee and subject to tax… Well, we know that persons, therefore employees, are not subject to the tax. We determined that in the second slide on Tax Imposed. Why did they put the …and subject to the tax… in there? This is a qualifying statement. The employer can only withhold on employees IF they are subject to the tax, and unless employees are residents, nonresidents, and individuals, they are not subject to the tax.
This is interesting… Enforcement. It shall be the duty of the collector to collect and receive the tax imposed by this chapter. In addition to keeping the records now required by law and paying over the proceeds from the collection of taxes to the treasurer of the city, as now provided by law, the collector shall keep an accurate and separate account of all tax payments received by him, showing the name and address of the taxpayer and the date of the payments. The collector is charged with the enforcement of the provisions of this chapter and is empowered to adopt and promulgate and to enforce rules and regulations relating to any matter or thing pertaining to the administration and enforcement of the provisions of this chapter, including provisions for the reexamination and correction of returns and payments alleged or found to be incorrect or as to which an overpayment or underpayment is claimed or found to have occurred. The Collector or any agent or employee authorized in writing by him is authorized to examine the books, papers and records of any employer or supposed employer, or of any taxpayer or supposed taxpayer, in order to verify the accuracy of any return made, or if no return was made, to ascertain the tax imposed by this chapter. REMEMBER…TAXPAYER AND EMPLOYER ARE DEFINED AS ARTIFICIAL ENTITIES!
Continued… Enforcement. Every employer or supposed employer, or taxpayer or supposed taxpayer, is directed and required to give to the collector or his duly authorized agent or employee the means, facilities and opportunity for examinations and investigations as are authorized. The Collector is authorized to examine any person concerning any income which was or should have been returned for taxation (meaning if the law applied to them) and to this end may order the production of books, papers and records and the attendance of all persons before him, whether as parties or witnesses, whom he believes to have knowledge of income. The refusal of examination by any employer or taxpayer shall be a violation of this chapter. Any information obtained as a result of any return, investigation, hearing or verification required or authorized by this chapter, shall be confidential except for official purposes and except in accordance with judicial order. Any person otherwise divulging such information shall, upon conviction thereof, be guilty of a misdemeanor and shall be subject to a fine of not more than five hundred dollars or imprisonment for not more than six months or both fine and imprisonment for each offense. (Ord § 9, 1954: prior Ord § 9, 1952: 1948 C. Ch. 23 § 149: 1960 C. § )
Penalties Penalty for violation. Any person or taxpayer who shall fail, neglect or refuse to make any return required by this chapter, (ah yes, but were not required) or any employer who shall fail, neglect or refuse to withhold or pay over to the city any amount of tax subject to withholding under this chapter, or any person or taxpayer who shall refuse to permit the Collector (only if under his jurisdiction, which we are not), or his duly authorized deputy or agent, to examine his books, records or papers, or who shall knowingly make an incomplete, false or fraudulent return, or who shall attempt to do anything whatsoever to avoid the full disclosure of the amount of earnings or profits, shall be guilty of a misdemeanor and shall be subject to a fine of not more than five hundred dollars or to imprisonment for not more than six months, or to both fine and imprisonment. (Ord § 12, 1954: prior Ord § 12, 1952: 1948 C. Ch. 23 § 152: 1960 C. § ) Tax evasion.
Tax Evasion Tax evasion. Any person or taxpayer who wilfully fails to pay or attempts in any manner to defeat or evade any tax imposed under provisions of this chapter (People do not have the tax imposed, as we have already established) shall be deemed to have violated the Revised Code of the City. (Ord § 1, 1971: 1960 C. § )
Penalty Clause D. Penalty Clause. 1. Any person or taxpayer who shall fail, neglect or refuse to withhold and pay over to the City any amount of earnings tax required to be withheld, or who shall fail, neglect or refuse to make any return/report required to be filed by the provisions of this section, or any person or taxpayer who shall refuse to permit the Collector of Revenue, or his duly authorized deputy or agent, to examine his books, records or papers, or who shall knowingly make an inaccurate, false or fraudulent return/report, or who shall attempt to do anything whatsoever to avoid the full disclosure of the amount of payments, earnings or profits, shall be deemed guilty of a misdemeanor and upon conviction shall be subject to a fine of not more than $ or to imprisonment for not more than 90 days, or to both fine and imprisonment. Again, persons and taxpayers who are REQUIRED. The requirement, as we have established, begins under the Tax Imposed as detailed in the second slide, and applies only to artificial entities engaged in business for profit or on employers. It does not touch the employee, people, or other Natural Persons.
Wrapping it up Tax imposed on Salaries, wages, commissions and other compensation, as well as profits OF individuals, businesses, corporations, associations. There is no tax imposed on Persons. Persons are mentioned in the code, but they differentiate between the artificial members of person and avoid mentioning the natural person member. There is no tax imposed on PEOPLE! When in doubt, read the definitions. DO NOT assume that you are automatically included.