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APPENDIX OF AUTHORITIES

UNDER THE CARDINAL RULES OF STATUTORY


CONSTRUCTION, COURTS HAVE RULED THAT:
“[W]e interpret a statute in context, examining other legislation on the same
subject, to determine the Legislature’s probable intent.[Citations.]” ( California
Teachers Assn. v. Governing Bd. of Rialto Unified School Dist.,
supra, 14 Cal.4th at p. 642.) “ ‘ “[P]rovisions relating to the same subject
matter must be harmonized to the extent possible.” ’ ”( Cooley v. Superior
Court (2002) 29 Cal. 4th 220, 248.) “Where . . .two codes are to be construed,
they ‘must be regarded as blending into each other and forming a single statute.’
[Citation.]” ( Tripp v. Swoap (1976) 17 Cal.3d 671,” SEE ALSO: Building
Material & Construction Teamsters’ Union v. Farrell (1986) 41
Cal.3d 651, 665.]

“Courts are bound by the statute not by individual opinions of its interpretation.”
Maia VS Selunly Lumber &Construction Co., 160 C.A. 2d 16, 21; In Re Lvine , 2 Cal.
2d 324, 327.

“While failure to observe custom may be evidence of negligence, The standard of due
care is not fixed by custom or altered by its presence or absence.”
Pauly -vs- King, 42 Cal. 2d 649, 655

FROM THE UNANIMOUS DECLARATION OF INDEPENDENCE OF THE THIRTEEN


UNITED STATES OF AMERICA ADOPTED IN CONGRESS ON JULY 4, 1776;

'' WE HOLD THESE TRUTHS TO BE SELF EVIDENT, THAT ALL MEN ARE
CREATED EQUAL. THAT THEY ARE ENDOWED BY THEIR CREATOR
WITH CERTAIN UNALIENABLE RIGHTS, THAT AMONG THESE ARE LIFE,
LIBERTY, AND THE PURSUIT OF HAPPINESS''“THAT TO SECURE THESE
RIGHTS GOVERNMENTS ARE INSTITUTED AMONG MEN, DERIVING
THEIR JUST POWERS FROM THE CONSENT OF THE GOVERNED.”

FROM ONE OF THE ORIGINAL FOUNDERS OF, AND, THE SECOND PRESIDENT OF
THE UNITED STATES OF AMERICA, John Adams:

"You have Rights Antecedent to all earthly Governments, Rights that


can not be repealed or restrained by human laws; Rights derived from
the Great Legislater of the Universe. "

FROM : THE UNITED STATES SUPREME COURT DECISION IN THE CASE OF:
CHISOLM EXECUTOR, VS GEORGIA, 2 DALL 419 (1793);
" The only reason, I believe, why a free man is bound by human laws, is,
that he binds himself."
(Put in quotes from Chisholm regarding the Sovereignty is in the
People)

FROM ONE OF THE ORIGINAL FOUNDERS OF THE UNITED STATES OF AMERICA,


Thomas Jefferson:
"It is error alone which needs the support of Government. Truth can
stand by itself."

U.S. SUPREME COURT IN Yick Wo v. Hopkins, 118 U.S. 356 (1886) Stated:
"Sovereignty itself is, of course, not subject to law, for it is the author and source
of law; but in our system, while sovereign powers are delegated to the agencies of
government, sovereignty itself remains with the people, by whom and for whom
all government exists and acts. And the law is the definition and limitation of
power."

“When we consider the nature and the theory of our institutions of government,
the principles upon which they are supposed to rest, and review the history of
their development, we are constrained to conclude that they do not mean to leave
room for the play and action of purely personal and arbitrary power.
Sovereignty itself is, of course, not subject to law, for it is the author
and source of law; but in our system, while sovereign powers are
delegated to the agencies of government, sovereignty itself remains with
the people, by whom and for whom all government exists and acts. And
the law is the definition and limitation of power. It is, indeed, quite true
that there must always be lodged somewhere, and in some person or body, the
authority of final decision; and in many cases of mere administration, the
responsibility is purely political, no appeal lying except to the ultimate tribunal of
the public judgment, exercised either in the pressure of opinion, or by means of
the suffrage. But the fundamental rights to life, liberty, and the pursuit of
happiness, considered as individual possessions, are secured by those maxims of
constitutional law which are the monuments showing the victorious progress of
the race in securing to men the blessings of civilization under the reign of just
and equal laws, so that, in the famous language of the Massachusetts bill of
rights, the government of the commonwealth 'may be a government of laws
and not of men.' For the very idea that one man may be compelled to
hold his life, or the means of living, or any material right essential to
the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the essence
of slavery itself.”

"It is error alone which needs the support of Government. Truth can
stand by itself." FOUNDER Thomas Jefferson

Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261, 343
[111 L.Ed.2d 224, 282, 110 S.Ct. 2841] (dis. opn. of Stevens, J.)("[T]
he constitutional protection for the human body is surely inseparable
from concern for the mind and spirit that dwell therein."); id., at
pages 279, 287-289 (conc. opn. of O'Connor, J.), 304-306 (dis. opn. of
Brennan, J.) [111 L.Ed.2d at pages 242, 247-248, 258-260];
Schmerber v. California (1966) 384 U.S. 757, 767 [16 L.Ed.2d 908,
917, 86 S.Ct. 1826]

Mr. Justice Brandeis, whose views have inspired much of the 'right to
be let alone' philosophy, said in Olmstead v. United States.... 'The
makers of our Constitution ... sought to protect Americans in their
beliefs, their thoughts, their emotions and their sensations. They
conferred, as against the Government, the right to be let alone-the
most comprehensive of rights and the right most valued by civilized
man.'

Thor v. Superior Court (Andrews) (1993) 5 Cal.4th 725 ,


ARABIAN, J.

More than a century ago, the United States Supreme Court declared,
"No right is held more sacred, or is more carefully guarded, by the
common law, than the right of every individual to possession and
control of his own person, free from all restraint or interference of
others, unless by clear and unquestionable authority of law. ... 'The
right to one's person may be said to be a right of complete immunity:
to be let alone.' [Citation.]"
More than a century ago, the United States Supreme Court declared,

"No right is held more sacred, or is more carefully guarded, by the

common law, than the right of every individual to possession and

control of his own person, free from all restraint or interference of

others, unless by clear and unquestionable authority of law. ... 'The

right to one's person may be said to be a right of complete immunity: to

be let alone.' [Citation.]" (Union Pacific Railway Co. v. Botsford (1891)

141 U.S. 250, 251 [35 L.Ed. 734, 737, 11 S.Ct. 1000].) Speaking for the

New York Court of Appeals, Justice Benjamin Cardozo echoed this

precept of personal autonomy in observing, "Every human being of adult

years and sound mind has a right to determine what shall be done with

his own body ...." (Schloendorff v. Society of New York Hospital (1914)

211 N.Y. 125 [105 N.E. 92, 93], overruled on other grounds in Bing v.

Thunig (1957) 2 N.Y.2d 656 [163 N.Y.S.2d 3, 143 N.E.2d 3].) And over

two decades ago, Justice Mosk reiterated the same principle for this

court: "[A] person of adult years and in sound mind has the right, in the

exercise of control over his body, to determine whether or not to

submit to lawful medical treatment." (Cobbs v. Grant (1972) 8 Cal.3d

229, 242 [104 Cal.Rptr. 505, 502 P.2d 1].) [5 Cal.4th 732] [4] The

common law has long recognized this principle: A physician who

performs any medical procedure without the patient's consent commits

a battery irrespective of the skill or care used. (Estrada v. Orwitz (1946)

75 Cal.App.2d 54, 57 [170 P.2d 43]; Valdez v. Percy (1939) 35 Cal.App.2d

485, 491 [96 P.2d 142]; Schloendorff v. Society of New York Hospital,

supra, 211 N.Y. 125 [105 N.E. at p. 93]; see Union Pacific Railway Co. v.

Botsford, supra, 141 U.S. at p. 252 [35 L.Ed.2d at pp. 737-738]; Mohr v.
Williams (1905) 95 Minn. 261 [104 N.W. 12, 14- 15], overruled on other

grounds in Genzel v. Halvorson (1957) 95 Minn. 261 [80 N.W.2d 854,

859]; Prosser on Torts (4th ed. 1971) § 18, pp. 104-106; Rest.2d Torts, §

49.) As a corollary, the law has evolved the doctrine of informed

consent. (See Cobbs v. Grant, supra, 8 Cal.3d at pp. 239-241.) "Under

this doctrine, 'the patient must have the capacity to reason and make

judgments, the decision must be made voluntarily and without

coercion, and the patient must have a clear understanding of the risks

and benefits of the proposed treatment alternatives or nontreatment,

along with a full understanding of the nature of the disease and the

prognosis.' [Citations.]"(Rasmussen v. Fleming, supra, 154 Ariz. 207

[741 P.2d at p. 683].) While the physician has the professional and

ethical responsibility to provide the medical evaluation upon which

informed consent is predicated, the patient still retains the sole

prerogative to make the subjective treatment decision based upon an

understanding of the circumstances. (In re Gardner, supra, 534 A.2d at

p. 951; In the Matter of Conroy (1985) 98 N.J. 321 [486 A.2d 1209, 1222,

48 A.L.R.4th 1].) Accordingly, the right to refuse medical [5 Cal.4th 736]

treatment is equally "basic and fundamental" and integral to the

concept of informed consent. fn. 6 (Bouvia, supra, 179 Cal.App.3d at p.

1137; Bartling, supra, 163 Cal.App.3d at p. 195; Cruzan v. Director,

Missouri Dept. of Health, supra, 497 U.S. at p. 277 [111 L.Ed.2d at p.

241]] (Cruzan); In re Gardner, supra, 534 A.2d at p. 951; Brophy, supra,

398 Mass. 417 [497 N.E.2d at p. 633]; In the Matter of Conroy, supra, 98

N.J. 321 [486 A.2d at p. 1222].) "The purpose underlying the doctrine of

informed consent is defeated somewhat if, after receiving all

information necessary to make an informed decision, the patient is

forced to choose only from alternative methods of treatment and


precluded from foregoing all treatment whatsoever." (Rasmussen v.

Fleming, supra, 154 Ariz. 207 [741 P.2d at p. 683].) "Obviously, if a

patient is powerless to decline medical treatment upon being properly

informed of its implications, the requirement of consent would be

meaningless." (McKay v. Bergstedt (1990) 106 Nev. 808 [801 P.2d 617,

621]; see Cal. Code Regs., tit. 22, § 70707, subd. (6) [under

administrative regulations patients have right to "[p]articipate actively

in decisions regarding medical care. To the extent permitted by law,

this includes the right to refuse treatment."].)

FROM THE UNANIMOUS DECLARATION OF INDEPENDENCE OF THE THIRTEEN


UNITED STATES AMERICA ADOPTED IN CONGRESS ON JULY 4, 1776;

'' WE HOLD THESE TRUTHS TO BE SELF EVIDENT, THAT ALL MEN ARE
CREATED EQUAL. THAT THEY ARE ENDOWED BY THEIR CREATOR
WITH CERTAIN UNALIENABLE RIGHTS, THAT AMONG THESE ARE LIFE,
LIBERTY, AND THE PURSUIT OF HAPPINESS''
“THAT TO SECURE THESE RIGHTS GOVERNMENTS ARE INSTITUTED
AMONG MEN, DERIVING THEIR JUST POWERS FROM THE CONSENT OF
THE GOVERNED.”

ARTICLES OF CONFEDERATION OF 1778 STATES:


"The style of this Confederacy shall be "The united States of America ".
ARTICLE XIII OF THE ARTICLES OF CONFEDERATION STATES :
Every State shall abide by the determinations of the United States in
Congress Assembled, on all questions which by this Confederation
are submitted to them. And the Articles of this Confederation shall be
inviobly observed by every State, and the Union shall be perpetual;
Nor shall any alteration at any time hereafter be made in any of them,
unless such alteration be agreed to in a congress of the United States,
and be afterwards confirmed by the legislatures of every state. "

FROM: FEDERALIST PAPERS NUMBER 40;


CREDITED TO: James Madison;
"To the People of the State of New York:

THE SECOND point to be examined is, whether the convention were authorized to frame and
propose this mixed Constitution. The powers of the convention ought, in strictness, to be
determined by an inspection of the commissions given to the members by their respective
constituents. As all of these, however, had reference, either to the recommendation from the
meeting at Annapolis, in September, 1786, or to that from Congress, in February, 1787, it will be
sufficient to recur to these particular acts. The act from Annapolis recommends the "appointment
of commissioners to take into consideration the situation of the United States; to devise SUCH
FURTHER PROVISIONS as shall appear to them necessary to render the Constitution of the federal
government ADEQUATE TO THE EXIGENCIES OF THE UNION; and to report such an act for that
purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards
confirmed by the legislature of every State, will effectually provide for the same."
"The recommendatory act of Congress is in the words following: "WHEREAS,
There is provision in the articles of Confederation and perpetual Union, for making
alterations therein, by the assent of a Congress of the United States, and of the
legislatures of the several States; and whereas experience hath evinced, that there
are defects in the present Confederation; as a mean to remedy which, several of
the States, and PARTICULARLY THE STATE OF NEW YORK, by express
instructions to their delegates in Congress, have suggested a convention for the
purposes expressed in the following resolution; and such convention appearing to
be the most probable mean of establishing in these States A FIRM NATIONAL
GOVERNMENT:
"Resolved, That in the opinion of Congress it is expedient, that on the second
Monday of May next a convention of delegates, who shall have been appointed by
the several States, be held at Philadelphia, for the sole and express purpose OF
REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and
the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall,
when agreed to in Congress, and confirmed by the States, render the federal
Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE
PRESERVATION OF THE UNION."
"In one particular it is admitted that the convention have departed from the tenor of
their commission. Instead of reporting a plan requiring the confirmation OF THE
LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be
confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY.”

"But that the objectors may be disarmed of every pretext, it shall be granted for a
moment that the convention were neither authorized by their commission, nor
justified by circumstances in proposing a Constitution for their country: does it
follow that the Constitution ought, for that reason alone, to be rejected? "

FROM: FEDERALIST PAPERS NUMBER 42;


Credited to James Madison;
"A list of the cases in which Congress have been betrayed, or forced by the
defects of the Confederation, into violations of their chartered authorities, would
not a little surprise those who have paid no attention to the subject; "

FROM: FEDERALIST PAPERS NUMBER 43;


CREDITED TO; James Madison;
" Two questions of a very delicate nature present themselves on this occasion: 1.
On what principle the Confederation, which stands in the solemn form of a
compact among the States, can be superseded without the unanimous consent of
the parties to it? 2. What relation is to subsist between the nine or more States
ratifying the Constitution, and the remaining few who do not become parties to it?
The first question is answered at once by recurring to the absolute necessity of the case; to the
great principle of self-preservation; to the transcendent law of nature and of nature's God, which
declares that the safety and happiness of society are the objects at which all political institutions
aim, and to which all such institutions must be sacrificed. PERHAPS, also, an answer may be found
without searching beyond the principles of the compact itself. It has been heretofore noted among
the defects of the Confederation, that in many of the States it had received no higher sanction than
a mere legislative ratification. The principle of reciprocality seems to require that its obligation on

the other States should be reduced to the same standard. A compact between independent
sovereigns, founded on ordinary acts of legislative authority, can pretend to no
higher validity than a league or treaty between the parties. It is an established
doctrine on the subject of treaties, that all the articles are mutually conditions of
each other; that a breach of any one article is a breach of the whole treaty; and
that a breach, committed by either of the parties, absolves the others, and
authorizes them, if they please, to pronounce the compact violated and void. Should
it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with
the consent of particular States to a dissolution of the federal pact, will not the complaining parties

find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which
they may be confronted? The time has been when it was incumbent on us all to veil the ideas
which this paragraph exhibits. The scene is now changed, and with it the part which the same
motives dictate.
The second question is not less delicate; and the flattering prospect of its being
merely hypothetical forbids an overcurious discussion of it. It is one of those
cases which must be left to provide for itself. In general, it may be observed, that
although no political relation can subsist between the assenting and dissenting
States, yet the moral relations will remain uncancelled. The claims of justice, both
on one side and on the other, will be in force, and must be fulfilled; the rights of
humanity must in all cases be duly and mutually respected; whilst considerations
of a common interest, and, above all, the remembrance of the endearing scenes
which are past, and the anticipation of a speedy triumph over the obstacles to
reunion, will, it is hoped, not urge in vain MODERATION on one side, and
PRUDENCE on the other.
PUBLIUS.

FROM: CHISOLM EXECUTOR, VS GEORGIA, 2 DALL 419 (1793);

The King, accordingly, in England is called a corporation. 10 Co. 29. b.


So also, by a very respectable author (Sheppard, in his abridgement, 1
Vol. 431.) is the Parliament itself. In this extensive sense, not only each
State singly, but even the United States may without impropriety be
termed 'corporations.' I have, therefore, in contradistinction to this
large and indefinite [2 U.S. 419, 448] term, used the term 'subordinate
corporations,' meaning to refer to such only (as alone capable of the
slightest application, for the purpose of the objection) whose creation
and whose powers are limited by law. "By a State I mean, a complete
body of free persons united together for their common benefit, to enjoy
peaceably what is their own, and to do justice to others. It is an
artificial person. It has its affairs and its interests: It has its rules: It
has its rights: And it has its obligations. It may acquire property distinct
from that of its members: It may incur debts to be discharged out of the
public stock, not out of the private fortunes of individuals. It may be
bound by contracts; and for damages arising from the breach of those
contracts. In all our contemplations, however, concerning this [2 U.S.
419, 456] feigned and artificial person, we should never forget, that, in
truth and nature, those, who think and speak, and act, are men”

FROM: MYERS VS U.S. (1926) 272 US 52;


"In any rational search for answer to the questions arising upon this
record, it is important not to forget- That this is a government of limited
powers, definitely enumerated and granted by a written Constitution.
That the Constitution must be interpreted by attributing to its words the
meaning which they bore at the time of its adoption, and in view of
commonly-accepted canons of construction, its history, early and long-
continued practices under it, and relevant opinions of this court.
"..."Checks and balances were established in order that this should be
'a government of laws and not of men. "

“State Law Determines questions of when a corporation


exists and what the terms of its existence are.” IN RE
HEARK CORP. (1982)
Bkrtcy., 18 B.R. 557, at page 558;

“The United States has the burden of proving that Federal


Jurisdiction Exists.” United States vs King, 781 F. Supp. 315
(1991) at page 316.” “Unless and until the United States has
accepted Jurisdiction over lands hereafter to be acquired as
aforesaid it shall be conclusively presumed that no such
Jurisdiction has been accepted.” U.S.CODE, TITLE 40, Section
255; (Last Sentence) “Whether the United States has acquired
exclusive Jurisdiction over a Federal Enclave is a Federal Question
DEKALB COUNTY,GEORGIA VS HENRY C. BECK COMPANY, 382 F.
2d 992 (1967), at page 995, citing PAUL VS U.S., 371 US 245;
S. CT. 426 (1963); AND ADAMS VS US, U.S. 312, 63 S. CT. 1122; 87
L. Ed. 1421 (1943)”

“The Constitution is a limited Grant of Power. Nothing is to be


presumed but what is Expressed.” US Supreme Court in 1804
Ruling in the Case of: _____________________________________________
“Congress can not make any Law in Violation of the Prohibitions
of the Constitution.” US Supreme Court in the Case of DE Lima vs
Bidwell, 182 U.S. 1041 (1900) at page 1043, along with numerous
other cases cited therein;

CALIFORNIA CONSTITUTION OF 1879, ARTICLE III STATES:


"THE STATE OF CALIFORNIA IS AN INSEPARABLE PART OF THE
UNITED STATES OF AMERICA AND THE UNITED STATES
CONSTITUTION IS THE SUPREME LAW OF THE LAND."

The California Constitution is "the supreme law of the state" to which all statutes
must conform. (Carter v. Seaboard Finance Co. (1949)33 Cal. 2d 564, 579
Therefore, "[a] statute inconsistent with the California Constitution is, of course,
void."
Hotel Employees & Restaurant Employees Internat. Union v. Davis (1999)21 Cal.
4Th 585, 602; see also People v. Navarro (1972)7 Cal. 3d 248, 260 [40 Cal.4th
964] ["Wherever statutes conflict with constitutional provisions, the latter must
prevail."].) More particularly, a statute that broadly and directly impinges on the
right of privacy guaranteed by the state Constitution is void unless supported by a
compelling governmental interest that cannot be achieved by less restrictive
means. (American Academy of Pediatrics v. Lungren (1997) 16 Cal. 4Th 307,
348(lead opn. of George, C. J.).)
Because a statute is subordinate to, and must be in conformity with, the state
Constitution, a statutory privilege cannot of its own force defeat a right of action
that is required or guaranteed by the state Constitution. In determining the scope
of the constitutional privacy right, however, and whether that right exists in a
particular situation, a court may consider traditional statutory privileges. I agree
with the majority that the privacy right guaranteed by the state Constitution does
not extend to situations covered by the litigation privilege.
B. The Tort of Abuse of Process.
[5] The common law tort of abuse of process arises when one uses the court's
process for a purpose other than that for which the process was designed. (5
Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 459, [37 Cal.4th 1057] p.
547; see also Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1463.) It has been
"interpreted broadly to encompass the entire range of 'procedures' incident to
litigation." (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 104, fn. 4
(Barquis).)
"[T]he essence of the tort [is] . . . misuse of the power of the court; it is an act
done in the name of the court and under its authority for the purpose of
perpetrating an injustice." (Meadows v. Bakersfield S. & L. Assn. (1967)250
Cal.App.2d 749, 753.) To succeed in an action for abuse of process, a litigant
must establish that the defendant (1) contemplated an ulterior motive in using
the process, and (2) committed a willful act in the use of the process not proper
in the regular conduct of the proceedings. (Oren Royal Oaks Venture v.
Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 (Oren
Royal Oaks Venture).)

FROM: WEST VIRGINIA STATE BOARD OF EDUCATION VS


BARNETTE (1943) 319 US 624;

"The very purpose of a Bill of Rights was to withdraw certain subjects


from the vicissitudes of political controversy, to place them beyond the
reach of majorities and officials and to establish them as legal principles
to be applied by the courts. One's right to life, liberty, and property, to
free speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the
outcome of no elections."

FROM: GRISWALD VS CONNECTICUT, 381 US 479 (1965);


The right of freedom of speech and press includes not only the right to
utter or to print, but the right to distribute, the right to receive, the right
to read (Martin v. Struthers, 319 U.S. 141, 143 and freedom of inquiry,
freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344
U.S. 183, 195

FROM:

NEW YORK v. UNITED STATES, 505 U.S. 144 (1992) ;

"The constitutional authority of Congress cannot be expanded by the


"consent" of the governmental unit whose domain is thereby narrowed,
whether that unit is the Executive Branch or the States. State officials
thus cannot consent to the enlargement of the powers of Congress
beyond those enumerated in the Constitution." "A departure from the
Constitution's plan for the intergovernmental allocation of authority
cannot be ratified by the "consent" of state officials, since the
Constitution protects state sovereignty for the benefit of individuals,
not States or their governments, and since the officials' interests may
not coincide with the Constitution's allocation."
" The Constitution does not protect the sovereignty of States for the
benefit of the States or state governments as abstract political entities,
or even for the benefit of the public officials governing the States. To
the contrary, the Constitution divides authority between federal and
state governments for the protection of individuals. "
"Where Congress exceeds its authority relative to the States, therefore,
the departure from the constitutional plan cannot be ratified by the
"consent" of state officials.""State officials thus cannot consent to the
enlargement of the powers of Congress beyond those enumerated in
the Constitution. "

FROM: REID v. COVERT, 354 U.S. 1 (1957) 354 U.S. 1;


"The United States is entirely [354 U.S.1,6] a creature of the Constitution.3

Its power and authority have no other source. It can only act in

accordance with all the limitations imposed by the Constitution. " "

Article VI, the Supremacy Clause of the Constitution, declares:

"This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be
the supreme Law of the Land; . . . . "
"There is nothing in this language which intimates that treaties and
laws enacted pursuant to them do not have to comply with the
provisions of the Constitution. Nor is there anything in the debates
which accompanied the drafting and ratification of the Constitution
which even suggests such a result. These debates as well as the
history that surrounds the adoption of the treaty provision in Article VI
make it clear that the reason treaties were not limited to those made in
"pursuance" of the Constitution was so that agreements made by the
United States under the Articles of Confederation, including the
important peace treaties which concluded the Revolutionary [354 U.S. 1,
17] War, would remain in effect. 31 It would be manifestly contrary to
the objectives of those who created the Constitution, as well as those
who were responsible for the Bill of Rights - let alone alien to our entire
constitutional history and tradition - to construe Article VI as permitting
the United States to exercise power under an international agreement
without observing constitutional prohibitions. 32 In effect, such
construction would permit amendment of that document in a manner
not sanctioned by Article V. The prohibitions of the Constitution were
designed to apply to all branches of the National Government and they
cannot be nullified by the Executive or by the Executive and the Senate
combined. "
"There is nothing new or unique about what we say here. This Court
has regularly and uniformly recognized the supremacy of the
Constitution
over a treaty. 33 For example, in Geofroy v. Riggs, 133 U.S. 258,
267(1798) it declared:
"The treaty power, as expressed in the Constitution, is in terms
unlimited except by those restraints which are found in that instrument
against the action of the government or of its departments, and those
arising from the nature of the government itself and of that of the
States. It would not be contended that it extends so far as to authorize
what the Constitution forbids, or a change in the character of the [354
U.S. 1, 18] government or in that of one of the States, or a cession of any
portion of the territory of the latter, without its consent."
"This Court has also repeatedly taken the position that an Act of
Congress, which must comply with the Constitution, is on a full parity
with a treaty, and that when a statute which is subsequent in time is
inconsistent with a treaty, the statute to the extent of conflict renders
the treaty null. 34 It would be completely anomalous to say that a treaty
need not comply with the Constitution when such an agreement can be
overridden by a statute that must conform to that instrument.

TAX LAW
(add quotes from Patten vs Brady definition of Excise Tax & quotes from
federal cases saying you can arrange your personal affairs as to lawfully avoid
taxes ; add regulations re California taxes based on Federal income tax law; US
vs Butler quotes, quotes from Congressional Record of 1933 the new currency
A loan from the Creditor Class to the debtor class

Is this why the California State Taxing Agency is Called :

the “Franchise Tax Board” :

31 U.S.C. § 3124 : Exemption from taxation

(a) Stocks and obligations of the United States Government are exempt from taxation by a State

or political subdivision of a State. The exemption applies to each form of taxation that would

require the obligation, the interest on the obligation, or both, to be considered in computing a

tax, except-(1)a nondiscriminatory franchise tax or another non property tax

instead of a franchise tax, imposed on a corporation; and (2) an estate or

inheritance tax.

(b) The tax status of interest on obligations and dividends, earnings, or other income from
evidences of ownership issued by the Government or an agency and the tax treatment of gain
and loss from the disposition of those obligations and evidences of ownership is decided under
the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.). An obligation that the Federal
Housing Administration had agreed, under a contract made before March 1, 1941, to issue at a
future date, has the tax exemption privileges provided by the authorizing law at the time of the
contract. This subsection does not apply to obligations and evidences of ownership issued by the
District of Columbia, a territory or possession of the United States, or a department, agency,
instrumentality, or political subdivision of the District, territory, or possession.

COMMISSIONER OF INTERNAL REVENUE v. WILCOX, 327 U.S. 404 (1946)COMMISSIONER


OF INTERNAL REVENUE v. WILCOX et al. No. 163. Argued Jan. 8, 1946.Decided Feb. 25,1946.

“Section 22(a) is cast in broad, sweeping terms. It 'indicates the purpose of Congress to use
the full measure of its taxing power within those definable categories.' Helvering v. Clifford,
supra, 309 U.S. 334 , 60 S.Ct. 556. The very essence of taxable income, as that concept is
used in Section 22(a), is the accrual of some gain, profit or benefit to the taxpayer.
This requirement of gain, of course, must be read in its statutory context. Not every
benefit received by a taxpayer from his labor or investment necessarily renders him
taxable. Nor is mere dominion over money or property decisive in all cases. In fact,
no single conclusive criterion has yet been found to determine in all situations what
is a sufficient gain to support the imposition of an income tax. No more can be said
in general than that all relevant facts and circumstances must be considered. See
Magill, Taxable Income (1945). [327 U.S. 404, 408] For present purposes, however,
it is enough to note that a taxable gain is conditioned upon (1) the presence of a
claim of right to the alleged gain and (2) the absence of a definite, unconditional
obligation to repay or return that which would otherwise constitute a gain. Without
some bona fide legal or equitable claim, even though it be contingent or contested in
nature, the taxpayer cannot be said to have received any gain or profit within the
reach of Section 22(a). See North American Oil v. Burnet, 286 U.S. 417, 424 , 52
S.Ct. 613, 615. Nor can taxable income accrue from the mere receipt of property or
money which one is obliged to return or repay to the rightful owner, as in the case of
a loan or credit. Taxable income may arise, to be sure, from the use or in connection
with the use of such property. Thus if the taxpayer uses the property himself so as to
secure a gain or profit therefrom, he may be taxable to that extent. And if the
unconditional indebtedness is cancelled or retired taxable income may adhere, under
certain circumstances, to the taxpayer. But apart from such factors the bare receipt
of property or money wholly belonging to another lacks the essential characteristics
of a gain or profit within the meaning of Section 22(a).”

CR-1-93-1
Case Law
United States of America v. Lloyd Long

Tennessee Man Freed on Tax Charges


In an amazing court case involving the "income tax," a Chattanooga jury agreed with the
argument by the defendant that the "income tax" is actually an excise tax and only applies
to certain classes of people. Nationally prominent attorney Lowell Becraft of Huntsville,
Alabama, assisted by attorney Russell J. Leonard of Sewanee, Tennessee, who defended
Lloyd R. Long of Decherd, Tennessee, who was charged by the Internal Revenue Service
with "willful failure to file income tax returns" for the years 1989 and 1990.
In presenting the case for the IRS, assistant U.S. Attorney Curtis Collier, assisted by Special
Agent Michael Geasley of the IRS, declared that Mr. Long had gross income in excess of
$49,000 for each of the years 1989 and 1990, and that he had "willfully" failed to file income
tax returns for those years as "required by law."

The defense admitted that Mr. Long did in fact have income in excess of $49,000 for each of
the years in question and that he did not file a return. He then proceeded to prove to the jury
beyond a reasonable doubt that he was not "liable" for an income tax, nor was he "required
by law" to file.
Defense testimony presented a case titled Brushaber v. Union Pacific Railroad, 240 U.S. 1,
wherein it was the unanimous decision of the U.S. Supreme Court that the Sixteenth
Amendment did not give Congress any new power to tax any new subjects. It merely tried to
simplify the way in which the tax was imposed. It also showed that the income tax was in fact
an excise tax on corporate privileges and privileged occupations. The defense then brought
out a case entitled Flint v. Stone Tracy, 220 U.S. 107, wherein an excise tax was defined as a
tax being laid upon the manufacture, sale and consumption of commodities within the
country upon licenses to pursue certain occupations and upon corporate privileges.
Mr. Long's attorneys also brought out a case entitled Simms v. Arehns, cite omitted, wherein
the court ruled that the income tax was neither a property tax nor a tax upon occupations of
common right, but was an excise tax. The defense then brought out a case entitled Redfield v.
Fisher, cite omitted, wherein the court ruled that the individual, unlike the corporation,
cannot be taxed for the mere privilege of existing but that the individual's right to live and
own property was a natural right upon which an excise tax cannot be imposed. Defense also
pointed to a couple of studies done by the Congressional Research Service that shows the
income tax is an excise tax. Next, defense pointed out that in the Tennessee Supreme Court
Case Jack Cole v. Commissioner, cite omitted, the court ruled that citizens are entitled by
right to income or earnings and that could not be taxed as a privilege. And, in another
Tennessee Supreme Court Case, Corn v. Fort, cite omitted, the court ruled that individuals
have a right to combine their activities as partnerships and that this is a natural right,
independent and antecedent of government. The prosecution did not challenge or attempt to
refute any of the cases cited or the conclusions of the courts. Defense brought out in
testimony the fact that nowhere in the Internal Revenue Code was anyone actually made
liable for the income tax. They showed that in the IRS' own privacy act notice only three
sections were cited and that none of these sections made anyone liable for the tax. They also
proved that this was not an oversight by showing that the alcohol tax was worded so clearly
that no one could misinterpret who was made liable for the alcohol tax. [Editorial note: Why
do you think the Infernal Revenue Code is over 9,000 pages? How many decent, desperate
Americans can (1) afford to buy Title 26 - both volumes? And (2) Once they open up this
labrinyth of deceptive mish-mash, they give up, take a gun to their head and pull the trigger.
Yes, this has happened too many times. Keep passing more and more and more laws so no
one can find the one sentence which makes us liable and in this case, it doesn't exist!]
Prosecution did not challenge or attempt to refute this point, nor were they able to show a
statute that made anyone liable for the income tax. Defense then presented the mission
statement of the IRS stating that the income tax relied upon "voluntary compliance" and a
statement from the head of alcohol and tobacco tax division of the IRS which in essence
showed that the income tax is 100% voluntary, as opposed to the alcohol tax which is 100%
enforced. [Editorial note: I have a copy of the February 3, 1953 hearings before A
Subcommittee Of The Committee On Ways and Means, House of Representatives, Eighty-
Third Congress: Administration of the Internal Revenue Laws, Part A, page 13 and I quote
Dwight D. Avis, Head of Alcohol, Tobacco Tax Division:
"Let me point this out now: Your income tax is 100 percent VOLUNTARY tax and your
liquor tax is 100 enforced tax. Now, the situation is as different as day and night.
Consequently, your same rules just will not apply and therefore the alcohol and tobacco tax
has been handled here in this reorganization a little differently because of the very nature of
it, than the rest of the over all tax problem." Try not filing and you will end up just like Mr.
Long because 90% of the judges in this country at the federal level are rotten to the core.
You think they can't read the law? Please. Mr. Long stated that in 1988 he knew that the
income tax was in fact an excise tax and that he was not enjoying any corporate privileges
nor engaged in any privileged occupation, that income or earnings from the exercise of
common right could not be taxed as an excise or otherwise, that nowhere in the IR Code was
he made liable for the tax and that the income tax was voluntary. But, Mr. Long was still so
intimidated by the IRS that he filed and paid his voluntary assessment. He then began a
series of letters to the IRS explaining that he had no licenses or privileges issued to him by
the federal government. He asked for direct answers to simple questions such as "Am I
required to file federal income tax returns?" and "Am I liable for federal income taxes?"
The IRS never gave a direct answer to any of his questions. Instead, they inferred and
insinuated and extrapolated and beat around the bush and generally avoided answering. As
a result, Mr. Long testified that he decided to stop "volunteering." The IRS brought two
"expert" witnesses. Both were actually IRS employees who had received training as
professional witnesses. Upon cross-examination by Mr. Becraft, one witness stated that a
secret code known only to the IRS and encoded on Mr. Long's permanent record [Note: This
is the IMF, Individual Master File], showed that the IRS knew he was not required to mail or
file a return. The witness made every effort to avoid this admission, to the point that she was
beginning to frustrate the jury. The other witness, upon cross-examination by Mr. Becraft,
gave testimony that conflicted with the privacy act notice. The government also attempted to
insinuate "guilt by association" in that they claimed Mr. Long had known and replied upon
persons of questionable character. The argued that the writers of some of the books he read
and people he knew had been convicted of tax-related charges in the past and were, in fact,
criminals. Mr. Long responded that just because a person had been convicted of a crime by a
court, this did not invalidate everything he said. To illustrate, he pointed out that the Apostle
Paul was a murderer but that by the Grace of God, he became the greatest of the Apostles.
He added that he, Mr. Long, did not rely on anything that he did not personally check out
thoroughly. In summation, Mr. Becraft reminded the jury that Galileo was imprisoned for
holding a belief that conflicted with what everyone else knew as a "fact" and that Columbus,
acting on a belief which conflicted with what everyone else knew was a "fact," discovered
something no one else thought existed. The jury agreed with the defense. By finding Mr.
Long "NOT GUILTY" on all counts, they have ventured into hitherto uncharted territory in
their monumental decision. A Chattanooga TV station quoted a government spokesman as
saying that this case will change the way the IRS will handle such cases in the future. They
indicated that they (the government) will be less likely to prosecute if a jury wasn't going to
decide in their favor. Mr. Long's spirit was best expressed when he was asked for a final
statement by a reporter as he was leaving the courtroom. His words, "Glory be to God."
**End of article. This case is CR-1-93-1, United States of America v. Lloyd Long filed in the
U.S. District Court, Eastern District of Tennessee and was decided on October 15, 1993.
Naturally, one heard not a peep from Gunga Din Dan Blather, Tom Brokenjaw or any of the
other "news" mouthpieces for the government.
WORDS OF US SUPREME COURT JUSTICE BRANDEIS FROM HIS
DISENTING OPINION IN THE CASE OF OLMSTEAD v. U.S., 277 U.S. 438
(1928) 277 U.S. 438 OLMSTEAD et al. v. UNITED STATES. No. 493. GREEN
et al. V SAME No. 532. McINNIS v. SAME. No. 533. Argued Feb. 20 and 21,
1928. Decided June 4, 1928.

The government makes no attempt to defend the methods employed


by its officers. Indeed, it concedes [277 U.S. 438, 472] that, if wire tapping can be deemed a
search and seizure within the Fourth Amendment, such wire tapping as was practiced in
the case at bar was an unreasonable search and seizure, and that the evidence thus
obtained was inadmissible. But it relies on the language of the amendment, and it claims
that the protection given thereby cannot properly be held to include a telephone
conversation.
'We must never forget,' said Mr. Chief Justice Marshall in McCulloch v. Maryland, 4
Wheat. 316, 407 4 L. Ed. 579, 'that it is a Constitution we are expounding.' Since then
this court has repeatedly sustained the exercise of power by Congress, under various
clauses of that instrument, over objects of which the fathers could not have dreamed.
See Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1 , 9; Northern
Pacific Ry. Co. v. North Dakota, 250 U.S. 135 , 39 S. Ct. 502; Dakota Central Telephone
Co. v. South Dakota, 250 U.S. 163 , 39 S. Ct. 507, 4 A. L. R. 1623; Brooks v. United
States, 267 U.S. 432 , 45 S. Ct. 345, 37 A. L. R. 1407. We have likewise held that general
limitations on the powers of government, like those embodied in the due process clauses
of the Fifth and Fourteenth Amendments, do not forbid the United States or the states
from meeting modern conditions by regulations which 'a century ago, or even half a
century ago, probably would have been rejected as arbitrary and oppressive.' Village of
Euclid v. Ambler Realty Co., 272 U.S. 365, 387 , 47 S. Ct. 114, 118 (71 L. Ed. 303); Buck
v. Bell, 274 U.S. 200 , 47 S. Ct. 584, 71 L. 1000. Clauses guaranteeing to the individual
protection against specific abuses of power, must have a similar capacity of adaptation to
a changing world. It was with reference to such a clause that this court said in Weems v.
United States, 217 U.S. 349, 373 , 30 S. Ct. 544, 551 (54 L. Ed. 793, 19 Ann. Cas. 705):
'Legislation, both statutory and constitutional, is enacted, it is true, from an experience
of evils, but its general language should not, therefore, be necessarily confined to the
form that evil had theretofore taken. Time works changes, brings into existence new
conditions [277 U.S. 438, 473] and purposes. Therefore a principal to be vital must be
capable of wider application than the mischief which gave it birth. This is peculiarly true
of Constitutions. They are not ephemeral enactments, designed to meet passing
occasions. They are, to use the words of Chief Justice Marshall, 'designed to approach
immortality as nearly as human institutions can approach it.' The future is their care
and provision for events of good and bad tendencies of which no prophecy can be made.
In the application of a Constitution, therefore, our contemplation cannot be only of what
has been but of what may be. Under any other rule a Constitution would indeed be as
easy of application as it would be deficient in efficacy and power. Its general principles
would have little value and be converted by precedent into impotent and lifeless
formulas. Rights declared in words might be lost in reality.'
When the Fourth and Fifth Amendments were adopted, 'the form that evil had theretofore
taken' had been necessarily simple. Force and violence were then the only means known to
man by which a government could directly effect self-incrimination. It could compel the
individual to testify-a compulsion effected, if need be, by torture. It could secure possession of
his papers and other articles incident to his private life-a seizure effected, if need be, by
breaking and entry. Protection against such invasion of 'the sanctities of a man's home and the
privacies of life' was provided in the Fourth and Fifth Amendments by specific language. Boyd
v. United States, 116 U.S. 616, 630 , 6 S. Ct. 524. But 'time works changes, brings into existence
new conditions and purposes.' Subtler and more far-reaching means of invading privacy have
become available to the government. Discovery and invention have made it possible for the
government, by means far more effective than stretching upon the rack, to obtain disclosure in
court of what is whispered in the closet. [277 U.S. 438, 474] Moreover, 'in the application of a
Constitution, our contemplation cannot be only of what has been, but of what may be.' The
progress of science in furnishing the government with means of espionage is not likely to stop
with wire tapping. Ways may some day be developed by which the government, without
removing papers from secret drawers, can reproduce them in court, and by which it will be
enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic
and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.
'That places the liberty of every man in the hands of every petty officer' was said by James Otis
of much lesser intrusions than these. 1 To Lord Camden a far slighter intrusion seemed
'subversive of all the comforts of society.' 2 Can it be that the Constitution affords no protection
against such invasions of individual security?
A sufficient answer is found in Boyd v. United States, 116 U.S. 616 , 627-630, 6 S. Ct. 524, a
case that will be remembered as long as civil liberty lives in the United States. This court there
reviewed the history that lay behind the Fourth and Fifth Amendments. We said with reference
to Lord Camden's judgment in Entick v. Carrington, 19 Howell's State Trials, 1030:
'The principles laid down in this opinion affect the very essence of constitutional liberty
and security. They reach farther than the concrete form of the case there before the
court, with its adventitious circumstances; they apply to all invasions on the part of the
government and its employe of the sanctities of a man's home and the privacies of life. It
is not the breaking of his doors, and the rummaging of his drawers, that constitutes the
essence of the offense; but it is the invasion of his indefeasible right of personal se- [277
U.S. 438, 475] curity, personal liberty and private property, where that right has never
been forfeited by his conviction of some public offense-it is the invasion of this sacred
right which underlies and constitutes the essence of Lord Camden's judgment. Breaking
into a house and opening boxes and drawers are circumstances of aggravation; but any
forcible and compulsory extortion of a man's own testimony or of his private papers to
be used as evidence of a crime or to forfeit his goods, is within the condemnation of that
judgment. In this regard the Fourth and Fifth Amendments run almost into each
other.'3
In Ex parte Jackson, 96 U.S. 727 , it was held that a sealed letter intrusted to the mail is
protected by the amendments. The mail is a public service furnished by the government. The
telephone is a public service furnished by its authority. There is, in essence, no difference
between the sealed letter and the private telephone message. As Judge Rudkin said below:
'True, the one is visible, the other invisible; the one is tangible, the other intangible; the one is
sealed, and the other unsealed; but these are distinctions without a difference.'
When the Fourth and Fifth Amendments were adopted, 'the form that evil had theretofore
taken' had been necessarily simple. Force and violence were then the only means known to
man by which a government could directly effect self-incrimination. It could compel the
individual to testify-a compulsion effected, if need be, by torture. It could secure possession of
his papers and other articles incident to his private life-a seizure effected, if need be, by
breaking and entry. Protection against such invasion of 'the sanctities of a man's home and the
privacies of life' was provided in the Fourth and Fifth Amendments by specific language. Boyd
v. United States, 116 U.S. 616, 630 , 6 S. Ct. 524. But 'time works changes, brings into existence
new conditions and purposes.' Subtler and more far-reaching means of invading privacy have
become available to the government. Discovery and invention have made it possible for the
government, by means far more effective than stretching upon the rack, to obtain disclosure in
court of what is whispered in the closet. [277 U.S. 438, 474] Moreover, 'in the application of a
Constitution, our contemplation cannot be only of what has been, but of what may be.' The
progress of science in furnishing the government with means of espionage is not likely to stop
with wire tapping. Ways may some day be developed by which the government, without
removing papers from secret drawers, can reproduce them in court, and by which it will be
enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic
and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.
'That places the liberty of every man in the hands of every petty officer' was said by James Otis
of much lesser intrusions than these. 1 To Lord Camden a far slighter intrusion seemed
'subversive of all the comforts of society.' 2 Can it be that the Constitution affords no protection
against such invasions of individual security?
A sufficient answer is found in Boyd v. United States, 116 U.S. 616 , 627-630, 6 S. Ct. 524, a
case that will be remembered as long as civil liberty lives in the United States. This court there
reviewed the history that lay behind the Fourth and Fifth Amendments. We said with reference
to Lord Camden's judgment in Entick v. Carrington, 19 Howell's State Trials, 1030:
'The principles laid down in this opinion affect the very essence of constitutional liberty
and security. They reach farther than the concrete form of the case there before the
court, with its adventitious circumstances; they apply to all invasions on the part of the
government and its employe of the sanctities of a man's home and the privacies of life. It
is not the breaking of his doors, and the rummaging of his drawers, that constitutes the
essence of the offense; but it is the invasion of his indefeasible right of personal se- [277
U.S. 438, 475] curity, personal liberty and private property, where that right has never
been forfeited by his conviction of some public offense-it is the invasion of this sacred
right which underlies and constitutes the essence of Lord Camden's judgment. Breaking
into a house and opening boxes and drawers are circumstances of aggravation; but any
forcible and compulsory extortion of a man's own testimony or of his private papers to
be used as evidence of a crime or to forfeit his goods, is within the condemnation of that
judgment. In this regard the Fourth and Fifth Amendments run almost into each
other.'3
In Ex parte Jackson, 96 U.S. 727 , it was held that a sealed letter intrusted to the mail is
protected by the amendments. The mail is a public service furnished by the government. The
telephone is a public service furnished by its authority. There is, in essence, no difference
between the sealed letter and the private telephone message. As Judge Rudkin said below:
'True, the one is visible, the other invisible; the one is tangible, the other intangible; the
one is sealed, and the other unsealed; but these are distinctions without a difference.'
The evil incident to invasion of the privacy of the telephone is far greater than that involved in
tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at
both ends of the line is invaded, and all con- [277 U.S. 438, 476] versations between them
upon any subject, and although proper, confidential, and privileged, may be overheard.
Moreover, the tapping of one man's telephone line involves the tapping of the telephone of
every other person whom he may call, or who may call him. As a means of espionage, writs of
assistance and general warrants are but puny instruments of tyranny and oppression when
compared with wire tapping.
Time and again this court, in giving effect to the principle underlying the Fourth Amendment,
has refused to place an unduly literal construction upon it. This was notably illustrated in the
Boyd Case itself. Taking language in its ordinary meaning, there is no 'search' or 'seizure'
when a defendant is required to produce a document in the orderly process of a court's
procedure. 'The right of the people of be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures,' would not be violated, under any ordinary
construction of language, by compelling obedience to a subpoena. But this court holds the
evidence inadmissible simply because the information leading to the issue of the subpoena has
been unlawfully secured. Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S. Ct.
182. Literally, there is no 'search' or 'seizure' when a friendly visitor abstracts papers from an
office; yet we held in Gouled v. United States, 255 U.S. 298 , 41 S. Ct. 261, that evidence so
obtained could not be used. No court which looked at the words of the amendment rather than
at its underlying purpose would hold, as this court did in Ex parte Jackson, 96 U.S. 727 , 733,
that its protection extended to letters in the mails. The provision against self-incrimination in
the Fifth Amendment has been given an equally broad construction. The language is:
'No person ... shall be compelled in any criminal case to be a witness against himself.'
Yet we have held not only that the [277 U.S. 438, 477] protection of the amendment extends to
a witness before a grand jury, although he has not been charged with crime (Counselman v.
Hitchcock, 142 U.S. 547, 562 , 586 S., 12 S. Ct. 195), but that:
'It applies alike to civil and criminal proceedings, wherever the answer might tend to
subject to criminal responsibility him who gives it. The privilege protects a mere witness
as fully as it does one who is also a party defendant.' McCarthy v. Arndstein, 266 U.S.
34, 40 45 S. Ct. 16, 17 (69 L. Ed. 158).
The narrow language of the Amendment has been consistently construed in the light of its
object, 'to insure that a person should not be compelled, when acting as a witness in any
investigation, to give testimony which might tend to show that he himself had committed a
crime. The privilege is limited to criminal matters, but it is as broad as the mischief against
which it seeks to guard.' Counselman v. Hitchcock, supra, page 562 (12 S. Ct. 198).
Decisions of this court applying the principle of the Boyd Case have settled these things.
Unjustified search and seizure violates the Fourth Amendment, whatever the character of the
paper;4 whether the paper when taken by the federal officers was in the home,5 in an office,6
or elsewhere;7 whether the taking was effected by force,8 by [277 U.S. 438, 478] fraud,9 or in
the orderly process of a court's procedure. 10 From these decisions, it follows necessarily that
the amendment is violated by the officer's reading the paper without a physical seizure, without
his even touching it, and that use, in any criminal proceeding, of the contents of the paper so
examined-as where they are testified to by a federal officer who thus saw the document or
where, through knowledge so obtained, a copy has been procured elsewhere11-any such use
constitutes a violation of the Fifth Amendment.
The protection guaranteed by the amendments is much broader in scope. The makers of our
Constitution undertook to secure conditions favorable to the pursuit of happiness. They
recognized the significance of man's spiritual nature, of his feelings and of his intellect. They
knew that only a part of the pain, pleasure and satisfactions of life are to be found in material
things. They sought to protect Americans in their beliefs, their thoughts, their emotions and
their sensations. They conferred, as against the government, the right to be let alone-the most
comprehensive of rights and the right most valued by civilized men. To protect, that right, every
unjustifiable intrusion by the government upon the privacy of the individual, whatever the
means employed, must be deemed a violation of the Fourth Amendment. And the use, as
evidence [277 U.S. 438, 479] in a criminal proceeding,of facts ascertained by such intrusion
must be deemed a violation of the Fifth.
Applying to the Fourth and Fifth Amendments the established rule of construction, the
defendants' objections to the evidence obtained by wire tapping must, in my opinion, be
sustained. It is, of course, immaterial where the physical connection with the telephone wires
leading into the defendants' premises was made. And it is also immaterial that the intrusion was
in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty
when the government's purposes are beneficent. Men born to freedom are naturally alert to
repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in
insidious encroachment by men of zeal, well-meaning but without understanding. 12
Independently of the constitutional question, I am of opinion that the judgment should be
reversed. By the laws of Washington, wire tapping is a crime. 13 Pierce's [277 U.S. 438, 480]
Code 1921, 8976(18). To prove its case, the government was obliged to lay bare the crimes
committed by its officers on its behalf. A federal court should not permit such a prosecution to
continue. Compare Harkin v. Brundage (No. 117) 276 U.S. 36 , 48 S. Ct. 268, decided February
20, 1928
[277 U.S. 438, 481] The situation in the case at bar differs widely from that presented in
Burdeau v. McDowell, 256 U.S. 465 , 41 S. Ct. 574, 13 A. L. R. 1159. There only a single lot of
papers was involved. They had been obtained by a private detective while acting on behalf of a
private party, without the knowledge of any federal official, long before any one had thought of
instituting a [277 U.S. 438, 482] federal prosecution. Here the evidence obtained by crime was
obtained at the government's expense, by its officers, while acting on its behalf; the officers who
committed these crimes are the same officers who were charged with the enforcement of the
Prohibition Act; the crimes of these officers were committed for the purpose of securing
evidence with which to obtain an indictment and to secure a conviction. The evidence so
obtained constitutes the warp and woof of the government's case. The aggregate of the
government evidence occupies 306 pages of the printed record. More than 210 of them are filled
by recitals of the details of the wire tapping and of facts ascertained thereby. 14 There is
literally no other evidence of guilt on the part of some of the defendants except that illegally
obtained by these officers. As to nearly all the defendants (except those who admitted guilt), the
evidence relied upon to secure a conviction consisted mainly of that which these officers had so
obtained by violating the state law. As Judge Rudkin said below (19 F.(2d) 842):
'Here we are concerned with neither eavesdroppers nor thieves. Nor are we concerned
with the acts of private individuals. ... We are concerned only with the acts of federal
agents, whose powers are limited and controlled by the Constitution of the United
States.'
The Eighteenth Amendment has not in terms empowered Congress to authorize any one to
violate the criminal laws of a state. And Congress has never purported to do so. Compare
Maryland v. Soper, 270 U.S. 9 , 46 S. Ct. 185. The terms of appointment of federal prohibition
agents do not purport to confer upon them authority to violate any criminal law. Their superior
officer, the Secretary of the Treasury, has not instructed them to commit [277 U.S. 438, 483]
crime on behalf of the United States. It may be assumed that the Attorney General of the United
States did not give any such instruction. 15
When these unlawful acts were committed they were crimes only of the officers individually.
The government was innocent, in legal contemplation; for no federal official is authorized to
commit a crime on its behalf. When the government, having full knowledge, sought, through
the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own
ends, it assumed moral responsibility for the officers' crimes. Compare the Paquete Habana,
189 U.S. 453, 465 , 23 S. Ct. 593; O'Reilly de Camara v. Brooke, 209 U.S. 45, 52 , 28 S. Ct. 439;
Dodge v. United States, 272 U.S. 530, 532 , 47 S. Ct. 191; Gambino v. United States, 275 U.S.
310 , 48 S. Ct. 137, and if this court should permit the government, by means of its officers'
crimes, to effect its purpose of punishing the defendants, there would seem to be present all the
elements of a ratification. If so, the government itself would become a lawbreaker.
Will this court, by sustaining the judgment below, sanction such conduct on the part of the
executive? The governing principle has long been settled. It is that a court will not redress a
wrong when he who invokes its aid has unclean hands. 16 The maxim of unclean hands comes
[277 U.S. 438, 484] from courts of equity. 17 But the principle prevails also in courts of law.
Its common application is in civil actions between private parties. Where the government is the
actor, the reasons for applying it are even more persuasive. Where the remedies invoked are
those of the criminal law, the reasons are compelling. 18
The door of a court is not barred because the plaintiff has committed a crime. The confirmed
criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime,
however long, makes one an outlaw. The court's aid is denied only when he who seeks it has
violated the law in connection with the very transaction as to which he seeks legal redress. 19
Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for
law; in order to promote confidence in the administration of justice; in order to preserve the
judicial process from contamination. The rule is one, not of action, but of inaction. It is
sometimes [277 U.S. 438, 485] spoken of as a rule of substantive law. But it extends to matters
of procedure as well. 20 A defense may be waived. It is waived when not pleaded. But the
objection that the plaintiff comes with unclean hands will be taken by the court itself. 21 It will
be taken despite the wish to the contrary of all the parties to the litigation. The court protects
itself. Decency, security, and liberty alike demand that government officials shall

be subjected to the same rules of conduct that are commands to the citizen. In a
government of laws, existence of the government will be imperiled if it fails to
observe the law scrupulously. Our government is the potent, the omnipresent
teacher. For good or for ill, it teaches the whole people by its example. Crime is
contagious. If the government becomes a lawbreaker, it breeds contempt for law;
it invites every man to become a law unto himself; it invites anarchy. To declare
that in the administration of the criminal law the end justifies the means-to
declare that the government may commit crimes in order to secure the conviction
of a private criminal-would bring terrible retribution. Against that pernicious
doctrine this court should resolutely set its face.”
"The wisdom of the legislation is not at issue in [27 Cal.3d 893] analyzing its
constitutionality, and neither the availability of less drastic remedial alternatives
nor the legislative failure to solve all related ills at once will invalidate a
statute."Hale v. Morgan, supra, 22 Cal.3d 388, 398. It is true, of course, that
when a statutory or legislative scheme utilizes a means to reach its end and which
is unduly harsh or exacts a penalty which may be deemed oppressive in light of
the legitimate objectives sought to be achieved, it may be held to be violative of
constitutional due process guarantees. (Hale v. Morgan, supra; Walsh v. Kirby
(1974) 13 Cal.3d 95, 105-106 [118 Cal.Rptr. 1, 529 P.2d 33]; People v. Western Air
Lines, Inc. (1954) 42 Cal.2d 621, 642 [268 P.2d 723], and cases there cited.) Here,
however, we are not concerned with a remedy in the nature of a penalty or
exaction. Rather we deal with a system whereby a city, in furtherance of its police
power and pursuant to statutory authorization, chooses to make the availability of
all municipal utility services relating to public health protection contingent upon
payment in full of a unified billing therefor. While those residents who do not
choose to take part in the system in accordance with its terms may suffer serious
practical consequences in the form of discontinued services, we cannot conclude
that an unconstitutional deprivation results.”
“Our Legislature has consistently frowned upon the arbitrary termination of
essential utility services. Where improperly undertaken by a private landlord
severe civil sanctions are authorized. (Civ. Code, § 789.3; Kinney v. Vaccari
(1980) 27 Cal.3d 348 [165 Cal.Rptr. 787, 612 P.2d 877].) Specific due process
requirements have been prescribed prior to termination of service by a public
utility. (Pub. Util. Code, §§ 779, 780.) What is improper conduct for a private
landlord and for a public utility would seem to be equally improper for a
municipality. Here the city has acted inconsistently with the implied legislative
intent to prevent unnecessary denial of utility service. Such insensitive conduct
demonstrates that to a bureaucrat with a hammer in his hand everything looks
like a nail.”

CONTRACT LAW