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Regulation of Motor Vehicles

Suggested format for filing an Affirmative Defense In Texas. Other States have the same constitutional limitations as does Texas.

Now on this ______ day of _____________ comes the accused Party in the above numbered and styled case (list of offenses) and Affirms his innocence due to the fact that the regulatory agencies of State of Texas have no authority to regulate the owning and driving of a private vehicle that is not used for hire in the carrying of passengers or property.

Please be advised that this is not a plea to the Jurisdiction of the Irving Municipal Court but rather a challenge of the authority of the State of Texas and its subdivisions to regulate ______________’s moving about in his automobile while taking care of his personal business.

Please find herein seven (7) Exhibits that will substantiate the fact that Mr. Black was not engaged in any activity that warrants any criminal charges.

In Exhibit 1, 1a and 1b, please find excerpts from The Declaration of Independence for the 13 United Colonies, Constitution of the United States of America – Analysis and Interpretation by the Congressional Research Service  and from the Constitution for the State of Texas.  All three together defines and guarantees to the citizens of Texas the right to life, liberty and the pursuit of happiness.

That includes the right to live and to have and enjoy everything that it takes for one to live a healthy life as best he/she can.  The right of liberty includes the right to move about freely unimpaired by any means so long as the rights of others are not infringed upon.  The Right to Pursue Happiness has been defined by the Courts  as Property Rights and ensures that we have the right to pull together whatsoever we  choose to make our life as enjoyable as we can afford and the right to use the property amassed as we see fit so long as that use does not infringe upon the rights of others.

Mr. _______________ contends that the regulation of his right to drive his vehicle that is not used for hire has been excepted out of the general powers of the State of Texas and the City of Irving and therefor he can not lawfully be charged with the criminal actions that he has been charged with.

Please find constitutional references to the primary and preferred use of the highways of a State and the reasons for the regulation of the use of those highways.

In Exhibit 1, 1a and 1b,

          Exhibit 1.  United States Declaration of Independence

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.

Please be advised that __________________ hereby reserves his constitutional and common law rights that were given to him by God.

Exhibit 1 a.  Constitution of the United States of America, Analysis and Interpretation, Amendment Fourteen – Rights Guaranteed, Page 1634

Regulation of Motor Vehicles and Carriers.—The highways of a State are public property, the primary and preferred use of which is for private purposes; their uses for purposes of gain may generally be prohibited by the legislature or conditioned as it sees fit.          United States Supreme Court – Stephenson v. Binford, 287 U.S. 251 (1932).

Exhibit 1 b. Texas Constitution – Bill of Rights             

Sec. 19.  DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY DUE COURSE OF LAW.  No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

Sec. 29.  BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE.  To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

In Exhibit 2, please find excerpts from the Texas Jurisprudence 2d

Texas Jurisprudence 2d

Volume II.  The Bill of Rights

  1. Generally.

SS 85. In General

The Bill of Rights guarantees personal rights of a comprehensive character.  To carry out these guarantees, courts try to insure that constitutional provisions that relate to the inalienable rights to life, liberty, and property are firmly upheld.  These rights exist inherently in every man, and are merely reaffirmed in the Constitution, and they are restricted only to the extent that they have been voluntarily surrendered by the people to their government.

Mr. ________________ declares that he does not voluntarily surrender any of his Constitutional and Common Law Rights.

  • Individual Rights, Privileges, and Immunities

SS 86.  In General.

Whenever the constitution makes a declaration of political privileges or rights or powers to be exercised by the people or the individual, it is placed beyond legislative control or interference, as much so as if the instrument had expressly declared that the individual citizen should not be deprived of those powers, privileges, and rights, and the legislature is powerless to deprive him of them.

    Mr. __________________hereby reserves his rights to life, liberty and property.  The right to life and everything requisite for the preservation of it, the right to move about freely unrestricted in any manner so long as he does not interfere with the rights of others, and the right to own property and the use of it as he sees fit so long as he does not infringe upon the rights of others.

In Exhibit 3, please find excerpts from “An Overview of Railroad Commission Records at the State Archives” informing us that the Texas Railroad Commission was the first regulatory Agency in the State of Texas that dealt primarily with Railroad Companies as well as other things.  

Please note that SB 3, 74th Legislature, Regular Session, is mentioned below and is hereby made a part of this Challenge as if it were incorporated herein.

       Exhibit 3 a. 

Railroad Commission of Texas:

An Overview of Railroad Commission Records at the Texas State Archives,

The Motor Bus Law of 1927, House Bill 50, 40th Legislature, Regular Session, and the Motor Carrier Law of 1929, House Bill 654, 41st Legislature, Regular Session, extended the Commission’s regulatory powers to commercial transportation of persons and property on state highways. In 1995, following federal deregulation of motor carriers, the 74th Legislature eliminated the agency’s authority to regulate commercial carriers involved in intrastate transport and transferred the remaining responsibilities related to commercial carriers (motor carrier registration, insurance verification, and safety) to the Texas Department of Transportation (Senate Bill 971, Regular Session), and the Department of Public Safety (Senate Bill 3, Regular Session).

     Exhibit 3 b.

Senate Bill 3, 74th Legislature, Regular Session

     Please find below the conclusion of the research performed by the House of Representatives Transportation Committee regarding Senate Bill 3 showing their findings regarding the contents of the Bill.

HOUSE SB 3 RESEARCH – Bivins

ORGANIZATION bill analysis 5/18/95 (Seidlits)

SUBJECT: Trucking deregulation; repeal of the Texas Motor Carrier Act

COMMITTEE: Transportation — favorable, without amendment

VOTE: 7 ayes — Alexander, Bosse, Alonzo, Clemons, Edwards, Siebert, Uher

             0 nays 2 absent — Moreno, Price

SENATE VOTE: On final passage, March 9 — 29-0

WITNESSES:

For — Larry Cernosek, Texas Towing and Storage Association; Mike Craddock, Southwest Warehouse and Transfer Association; Bill Haley, Texas Motor Transportation Association; Mark Foster, Texas Association of Business and Chambers of Commerce.

Against — None

BACKGROUND: Under the Texas Motor Carrier Act, the Texas Railroad Commission (TRC) regulates both rates and authority, determining who may offer trucking services, what commodities they may haul, where they may operate, and what rates they may charge. Additionally, the act allows the TRC to regulate the trucking industry for safety and insurance coverage.

The Texas Department of Public Safety (DPS) is primarily responsible for the enforcement of motor carrier safety regulation. Interstate regulation of motor carriers has decreased significantly since the passage of the federal Motor Carrier Act of 1980 and the broad interpretation of the act by the Interstate Commerce Commission (ICC). Entry into the market and trucking rates at the interstate level are based primarily on market needs, rather than government regulation. In August 1994 Congress preempted states’ authority to regulate motor carrier prices, routes or service, effectively ending economic regulation of intrastate trucking.

The state now has regulatory authority only in the areas of safety enforcement, registration of commercial vehicles and processing and maintenance of insurance filings. For additional background on trucking regulation in Texas, please see House Research Organization Session Focus No. 74-11, Transition to Deregulated Trucking Detailed, April 19, 1995.

DIGEST: CSSB 3 would repeal the Texas Motor Carrier Act and transfer regulatory authority over registration and safety of intrastate motor carriers from the Texas Railroad Commission to the Texas Department of Transportation and the Department of Public Safety (DPS).

Registration. A motor carrier would be prohibited from operating a motor vehicle or a tow truck on a road or highway of the state unless the carrier registered with TxDOT. Along with an application fee of $100 plus a $10 fee for each vehicle requiring registration, the applicant would have to file proof of insurance or financial responsibility.

Insurance. Motor carriers would have to maintain liability insurance at an amount that does not exceed the amount required for a motor carrier under federal regulations. Household goods carriers would be required to maintain cargo insurance in the same amount required for a motor carrier transporting household goods under federal law. A motor carrier would be able to meet the insurance requirements through self-insurance if the carrier demonstrated to TxDOT that it could satisfy its obligations for bodily injury and property damage liability. TxDOT could not require a motor carrier to carry workers’ compensation or similar insurance coverage.

Administrative penalties by TxDOT. The legislation would authorize TxDOT to impose an administrative penalty against a motor carrier for a violation of this act. The penalty for a violation could be up to $5,000 per violation or up to $30,000 for multiple violations. Each day of the violation could be a separate offense. Suspension and revocation of registration. TxDOT would be allowed to suspend or revoke a registration issued under this legislation for failing to maintain insurance and not registering all vehicles. DPS could request that SB 3 House Research Organization page 3 TxDOT suspend or revoke a registration if the motor carrier has an unsatisfactory safety rating. Economic regulation. TxDOT could not regulate the prices, routes or services provided by a motor carrier. TxDOT could establish voluntary standards for uniform cargo liability, uniform bills of lading or receipts for cargo being transported and uniform cargo credit. TxDOT would be required to adopt rules at least as stringent as corresponding federal provisions to protect consumers who contract with motor carriers that transport household goods. Household good carriers would be required to file a tariff with the department that establishes maximum charges for moving services. In no event could the department adopt rules regulating the rates, with the exception of the filing of the tariff, or routes of household goods carriers.

Antitrust Exemption.

The bill would exempt household goods motor carriers or any collective association of carriers or agents from prohibitions against collectively setting rates. Agreements would be submitted to TxDOT for approval. Tow truck regulation by municipality. The legislation would allow, in addition to registration requirements, municipalities to regulate the operation of tow trucks to the extent allowed by federal law. A municipality would be prohibited from requiring the registration of a tow truck that performs consent tows unless the owner of the tow truck had a place of business in the municipality. The bill would allow the municipality to require the registration of a tow truck that performs a non-consent tow, regardless of whether the owner of the tow truck has a place of business in the municipality. TxDOT would be required to appoint a rules advisory committee to advise the department on the application of this legislation to the operation of tow trucks. Conflicts of laws. A federal motor carrier safety regulation would prevail over a conflicting provision of the bill or a rule adopted by the director.

Motor transportation brokers. The bill would prohibit a person from acting as a motor transportation broker unless the person provides a bond to TxDOT. Bonds. VACS art. 6701a would be amended to exempt motor carriers from bonding requirements pertaining to the driving or transporting of farm equipment being used for agricultural purposes. CSSB 3 would also amend VACS art. 6701d-11 to exempt motor carriers from the bonding requirements pertaining to permits issued for the operation of overweight trucks. Appropriation. Any appropriation made to the TRC for the biennium ending August 31, 1997, for the administration of a law repealed by this legislation would be transferred to: • TxDOT, if the appropriation was for an activity previously administered by the TRC that would now be administered by TxDOT; • DPS, if the appropriation was for an activity previously administered by the TRC that would now be administered by DPS Administration. CSSB 3 would require TRC, TxDOT, and DPS to adopt a memorandum of understanding regarding the transfer of administrative duties that would occur as a result of this legislation. Notwithstanding any other law, the memorandum could provide for the lateral transfer of one or more of the employees whose positions would be eliminated by this legislation and whose current duties and functions approximate those required by TxDOT or DPS to implement this legislation. By January 1, 1996, TxDOT and DPS would be required to review all rules adopted to enforce this legislation; not later than January 1, 1996, all state agencies would be required to review existing regulations that affect motor carriers. This review would include efforts to eliminate duplicative regulations. All certificates of public convenience and necessity and permits issued to contract carriers would be canceled. Motor carrier would be defined as an individual, association, corporation, or other legal entity that controls, operates, or directs the operation of one or more vehicles that transport persons or cargo over a road or highway in this state. The bill would take effect September 1, 1995.

SUPPORTERS SAY: Federal preemption of state regulated trucking effectively ended economic regulation of intrastate trucking. After enactment of the federal preemption consumer and industry meetings were held to discuss how best to implement safety and consumer protections in the new era of deregulated trucking in Texas. This legislation is a result of those meetings and would bring state law into compliance with the new federal deregulation standards. For 65 years elected railroad commissioners strictly regulated Texas’ trucking industry. CSSB 3 would promote competition and encourage the motor carrier industry by requiring every state agency to review existing regulations that affect the trucking industry. The bill would promote administrative efficiency, while keeping Texas’ roads safe and the economy sound. SB 3 CSSB 3 would repeal the Texas Motor Carrier Act and transfer regulatory authority over registration and safety of intrastate motor carriers from the Texas Railroad Commission to the Texas Department of Transportation and the Department of Public Safety.

The current railroad commissioners support the transfer of authority over trucking from TRC as it would allow the agency to focus exclusively on energy issues. It makes administrative sense to shift control over licensing and registration to TxDOT and safety compliance to DPS. This legislation provides uniform and consistent registration and insurance filing procedures for motor carriers operating in Texas and retain all enforcement and rulemaking authority needed to ensure safety compliance. CSSB 3 would maintain insurance, registration and safety regulation as stringent as they are now and offers TxDOT and DPS wide latitude in issuing administrative penalties up to $30,000 for violations of these provisions. The legislation would allow TxDOT to establish necessary safety regulations for drug screening, driver qualifications prior to hiring, commercial driver license compliance, logging hours of driver service and many other safety regulations. The bill also provides an exemption to antitrust law for discussions between household goods movers and their agents regarding rates and require TxDOT to adopt rules that are at least as stringent as federal regulations to protect consumers. These measures are designed to protect consumers from fly by night household goods moving operations, while opening the industry to more competition. The legislation would allow, in addition to registration requirements, municipalities to regulate the operation of tow trucks to the extent allowed by federal law. In addition, TxDOT would be required to appoint a rules advisory committee to advise the department on the application of this legislation to the operation of tow trucks. The legislation would eliminate or exempt motor carriers from unnecessary bonding requirements. Overweight trucks could still be prosecuted for violations of the weight limits on trucks traveling on Texas roads. The bill would establish a transitional arrangement for employees at TRC by encouraging TxDOT and DPS to accept as part of a lateral transfer anyone who could work to implement this legislation.

OPPONENTS SAY: The regulations on household goods movers would apply only to trucks with a weight rating more than 26,000 pounds. All for-hire household goods carriers, regardless of vehicle weight, should be incorporated into the proposed new regulatory scheme. Every company, no matter how small, should be required to conduct its business according to the highest and strictest standards of safety. This bill would exempt all motor carriers from the bonding requirements that protect counties from overweight trucks, costing counties millions of dollars in extra expenses related to fixing roads damaged by heavy trucks. The bonding requirements for overweight trucks should remain a mandatory provision.

NOTES: The committee substitute would: • require that a filing fee accompany every application; • ensure that TxDOT is the sole administrator of registration suspensions and revocations; • allow TxDOT to adopt rules to authorize the use of electronic funds transfer or credit card transactions to pay fees; • provide TxDOT administrative penalty power to enforce the Single State Registration; • provide that interstate motor vehicles, trailers, and semitrailers are exempt from the sales and use tax, effective September 1, 2000; • provide that all motor carriers are exempt from posting bonds with TxDOT; • authorize the lateral transfer of employees from TRC to TxDOT; and • declare all certificates of public convenience and necessity, and permits issued to contract carriers are canceled.

     Please take note:

     There were no regulatory powers given to the Department of Transportation or to the Texas Department of Public Safety regarding the regulation of private vehicles not used for hire.  Please be advised that Mr. Black was not using his vehicle for hire or compensation.

     MR. ____________________ is of the opinion that the State of Texas’s and the City of Irving’s authority to regulate vehicles used on the highways and roadways originates from SB 3, 74th Legislature, Regular Session. If the State of Texas and the City of Irving contends that Mr. Black’s opinion is incorrect, please furnish the Legislative Act that provides that authority.

In Exhibit 4, please find an excerpt from the Texas Transportation Code that plainly reveals that the extent of the Department’s authority to regulate vehicular use on the Highways of this state only applies to commercial motor vehicles, truck tractors, truck trailers, truck semitrailers, and motor vehicles engaged in the business of transporting passengers for compensation or hire (buses).  The same vehicles that are required to abide by the posted speed limit signage are those required to have motor carrier registration, insurance verification, and safety inspections

Exhibit 4.  Texas Transportation Code.

          Sec. 201.904. SPEED SIGNS. The department shall erect and maintain on the highways and roads of this state appropriate signs that show the maximum lawful speed for commercial motor vehicles, truck tractors, truck trailers, truck semitrailers, and motor vehicles engaged in the business of transporting passengers for compensation or hire (buses). Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

     Please note that there is nothing mentioned regarding private vehicles not used for hire.

Also note that Section 201.904 is part of the Code that was enacted by the 74th Legislature in 1995, the same Legislature that enacted SB 3, 74th Legislature, Regular Session.

In Exhibit 5, please find four Texas Appeals Court cases that plainly reveals that there is no such license as a “Driver’s License” known to Texas law.  There are only three types of licenses mentioned in the Texas Driver’s licensing Statutes.  Operator’s License, Commercial Operator’s License and a Chauffeur’s License.

     Exhibit 5

Texas Appeals Court Rulings Regarding a “Driver’s License”. Page – Tex. 401

Claude D.CAMPBELL, Appellant,
v.
The STATE of Texas, Appellee.

No. 27245.

Court of Criminal Appeals of Texas.

Jan. 12,1985

Defendant was convicted of unlawfully operating a motor vehicle upon a public highway while his operator’s license was suspended.  The County Court, Panola County, Clifford S. Roe, J., rendered judgment, and an appeal was taken.  The Court of Criminal Appeals, Belcher, C., held that proof that defendant had driven an automobile while his driver’s license was suspended did not sustain allegations of charge that he had driven while his operator’s license was suspended.

Judgment reversed and cause remanded.

1. Automobiles Key 353

Upon a charge of operating- a motor vehicle upon a public highway while operator’s license is suspended, the state has burden of showing that defendant had been issued an operator’s license to drive a motor vehicle upon a public highway, that such license has been suspended, and that, while such license was suspended, defendant drove a motor vehicle upon a public highway.

2. Automobiles Key 352

Proof that defendant had driven an automobile while his driver’s license was suspended did not sustain allegations of charge that he had driven while his operator’s license was suspended.

3. Automobiles Key 136

There is in Texas no such license as a “driver’s license.”—- —-

No attorney on appeal for appellant.

Wesley Dice, State’s Atty., Austin, for the State.

BELCHER, Commissioner.

Appellant was convicted, in the County Court Panola County, for unlawfully operating- a motor vehicle upon a public highway while his operator’s license was suspended, and his punishment was assessed at a fine of $25.

[1]Under such a charge, the state was under the burden of showing that there had been issued an operator’s license to appellant to drive a motor vehicle upon a public highway; that such license had been suspended; and that, while such license was at suspended, appellant drove a motor vehicle upon a public highway.

To meet this requirement, the state here relies upon testimony that appellant drove his pick-up truck upon a public highway in Panola County, on the date alleged, and that he drove said motor vehicle while his license was suspended

Page – Tex. 402

[2, 3]”This proof is insufficient to ‘sustain the allegations of the offense charged in the information because a driver’s license is not an operator’s license.  We have held that there is no such license as a driver’s license known to our law.  Hassell v. State, 149 Tex.Cr.R. 333, 194 S.W.2d 400; Holloway v. State, 155 Tex.Cr.R. 484, 237 S.W. 2d 303; and Brooks v. State, Tex.Cr.App., 258 S.W.2d 317.

Proof of the driving of an automobile while the driver’s license was suspended does not sustain the allegations of the information.  The evidence being insufficient to support the conviction, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

Page – 360 Tex.

Frank John CALLAS, Appellant,
v.
STATE of Texas, Appellee.

No. 30094.

Court of Criminal Appeals of Texas.

Jan. 7.1959.

Prosecution for driving motor vehicle on public road after operator’s license had been suspended. The County Court at Law, Potter County, Mary Lou Robinson, J., entered judgment of conviction and defendant appealed.  The Court of Criminal Appeals, Woodley, J., held that where testimony showed that only two persons were in or around truck at time defendant was apprehended and patrolman testified that the other person was not the driver of truck, and largely upon this testimony jury found defendant guilty, and after jury retired police officer filed complaint charging other person with driving motor vehicle with violation of restrictions imposed on his operator’s license and such other person was convicted upon his plea of guilty, defendant’s motion for new trial setting forth conviction of such other person should have been granted in order that defendant might have the benefit of evidence regarding conviction of other party in another trial.

Reversed and remanded.

Criminal Law Key 938(1)

In prosecution for driving after operator’s license had been suspended where testimony showed that there were only two persons including defendant in or around truck at time patrolman reached it and patrolman testified that other person was not driving panel truck, and after jury retired patrolman filed complaint charging other party with driving motor vehicle and he was convicted upon his plea of guilty, defendant’s motion for new trial should have been granted in order that he might, in another trial, have the benefit of evidence regarding conviction of other party.  Vernon’s Ann.Civ.St. art. 6687b, § 1(n).

McCarthy, Rose & Haynes, Amarillo, for appellant.

Lon Moser, County Atty., E. S. Carter, Jr., Asst. County Atty., Amarillo, State’s Atty., Austin, for the State.

WOODLEY, Judge.

The complaint and information allege that appellant drove a motor vehicle upon a public road “after the Texas Operator’s License of the said Frank John Callas had ***been suspended” and further alleged that appellant had received an extended period, of suspension “of said Texas Operator’s License*** “and that said suspension had not expired.

We have searched the record carefully and find no evidence that the license which had been suspended was a Texas Operator’s License, as alleged in the information.

If appellant was driving a motor vehicle, it was a panel truck used as a commercial vehicle in appellant’s business, the appropriate license for its operation being a Commercial Operator’s License, and not an Operator’s License.  See Art. 6687b. Sec. I (n), Vernon’s Ann.Civ.St.

This Court has held that there is no such license known to Texas law as a “driver’s license”.  See Hassell v. State, 149 Tex. Cr.R. 333, 194S.W.2d400; Brooks v. State, 158 Tex.Cr.R. 546, 258 S.W.2d 317.

There were but two persons in or around the panel truck.  One was Walter Schaff, who was seated in the driver’s seat when the patrolmen reached it.  Patrolman Kirkwood testified that Schaff was not driving the panel truck, and largely upon his testimony the jury found that appellant was the driver.

After the jury retired, Officer Kirkwood filed complaint charging Schaff with driving [Page – Tex 361] a motor vehicle in violation of restrictions imposed in his operator’s license.  Information was presented by the County Attorney and Schaff was convicted upon his plea of guilty.

Appellant’s motion for new trial setting forth the conviction of Schaff after the close of the evidence on appellant’s trial should have been granted in order that upon another trial appellant might have the benefit of the evidence regarding the conviction of Schaff.  Appellant’s motion for rehearing is granted; our former opinion herein affirming the judgment is withdrawn, and the judgment is now reversed and the cause remanded

Page – Tex. 317

BROOKS v. STATE. No. 26458.

Court of Criminal Appeals of Texas.

May 27, 1953

From a judgment rendered by the County Court, Culberson County, defendant appealed.  The Court of Criminal Appeals, Belcher, C. held that information, charging defendant with driving a motor vehicle upon a public highway while his “driver’s license” was suspended, charged no offense.

Reversed with directions.

Automobiles Key 351

Information, charging defendant with driving a motor vehicle upon a public highway while his “driver’s license” was suspended, charged no offense. Vernon’s Ann. Civ. St. art. 6687b, § 27.

—- —-

George W. Walker, Van Horn, for appellant.

Wesley Dice, State’s Atty., of Austin, for the State.

BELCHER, Commissioner.

Appellant was convicted for the violation of Art. 6687b, § 27, V.A.R.C.S.; and his punishment was assessed at a fine of $50.

The information upon which this conviction was predicated alleged that appellant “did then and there unlawfully drive and operate a motor vehicle upon a public [Page – Tex. 318] highway, to-wit: U. S. Highway Number 80, situated within said county and state, while his, the said Keith Brook’s, driver’s license was suspended.”

In Hassell v. State, 149 Tex.Cr.R. 333, 194 S.W.2d 400, 401, we said:

“There being no such license as a ‘driver’s’ license known to the law, it follows that the information, in charging the driving of a motor vehicle upon a public highway without such a license, charges no offense.” See also Holloway v. State, Tex.Cr.App., 237 S.W.2d 303.

Because the information fails to charge an offense, the judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.

Page Tex. 400

HASSELL v. STATE.

No. 23353.

Court of Criminal Appeals of Texas.

May 15,

1. Automobiles Key l37

Under Drivers’ License Act it is unlawful for any person to drive or operate a motor vehicle over a highway of Texas without having a license, either as an operator, a commercial operator or a chauffeur, but one holding a license as a commercial operator or chauffeur is not required to have an operator’s license.  Vernon’s Ann.Civ. St. art. 6687b, §§2,3,44.

2. Automobiles Key 351

Information alleging that defendant operated a motor vehicle upon public highway without a “driver’s license” charged no offense under Drivers’ License Act, since a driver’s license is not known to the law because the act only authorizes issuance of operators’ commercial operators’ and chauffeurs’ license and use of term “driver” interchangeably with term “operator” would not be authorized in view of definition in the act of term driver as meaning every person who drives or is in actual physical possession of a vehicle. Vernon’s Ann.Civ. St. art. 6687b, §§ 2, 3, 44.

Comissioners’ Decision.

Appeal from Hunt County Court; Wm. C. Parker, Judge.

W. Lee Hassell was convicted of operating a motor vehicle upon a highway without a license, and he appeals.

Reversed and prosecution ordered dismissed.

G. C. Harris, of Greenville, for appellant.

Ernest S. Goens, State’s Atty., of Austin, for the State.

DAVIDSON, Judge.

The conviction is for operating a motor vehicle upon a highway without a license; the punishment, a fine of $50.

By what is commonly referred to as the Drivers’ License Act, and appearing as Art. 6687b of Vernon’s Annotated Civil Statutes, the Legislature of this State provided for the licensing of operators of motor vehicles over the public highways of this State. Sec. 2 of Article II of the Act reads as follows:

“Drivers must have license.

“(a) No person, except those hereinafter expressly exempted, shall drive any motor vehicle upon a highway in this State unless such person has a valid license as an operator, a commercial operator, or a chauffeur under the provisions of this Act.

“(b) Any person holding a valid chauffeur’s or commercial operator’s license hereunder need not procure an operator’s license.

“(c) No person holding an operator’s, commercial operator’s, or chauffeur’s license duly issued under the provisions of this Act shall be required to obtain any license for the operation of a motor vehicle from any other State authority or department.  Subsection (c) of Section 4 of Article 911A and Subsection (b) of Section 4 of Article 911B, Revised Civil Statutes, is hereby repealed.”

Sec. 44 of Art. VI of the Act provides the penalty .for the violation.

Page Tex. 401

[1]It is by these statutes made unlawful for any person to drive or operate a motor vehicle over a highway of this State without having a license, either as an “operator,” a “commercial operator,” or a “chauffeur.  “One holding a license as a “commercial operator” or “chauffeur” is not required to have an “operator’s” license.

Certain exemptions and exceptions from the operation of the Act are provided in Sec. 3 of Art. II thereof.

The information upon which this conviction was predicated alleged that appellant “did then and there unlawfully operate a motor vehicle upon a public highway, to wit. State Highway No. 24, without a Driver’s License.”

It is insisted that the information charges no offense, because a “driver’s license” is neither recognized nor authorized to be issued under the Act and, by reason thereof, it constitutes no offense to drive a motor vehicle without such a license.

[2]Only three types of licenses are authorized or required under the Act. These are “operators,” “commercial operators,” and “chauffeurs,” and they are specially defined in the Act.  The term “driver”—-as used in the Act—is defined to be: “Every person who drives or is in actual physical control of a vehicle.  “In view of this particular definition of the term “driver,” it cannot be said that such term may be used interchangeably with or given the same meaning as the term “operator.”

There being no such license as a “driver’s” license known to the law, it follows that the information, in charging the driving of a motor vehicle upon a public highway without such a license, charges no offense.

Because of the defect in the information, the judgment is reversed and prosecution ordered dismissed.                                    

PER CURIAM.  The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

     Please be advised that Mr. Black does not now have nor has he ever had an Operator’s, a Commercial Operator’s License or a Chauffer’s License and demands that the City of Irving prove up the fact that he now has or has had in the past either of those licenses.

In Exhibit 6, please find excerpts from Texas Administrative Code that sheds more light regarding the responsibilities of the Texas Department of Public Safety

          Exhibit 6

  1. In regard to transportation, individuals and organizations affected by the Law must follow the Regulations found in the Texas Administrative Code that are written by the Department of Transportation and the Department of Public Safety.  (Austin Public Library Research Guides, Primary Sources.)

2.  Regarding the responsibilities of the Texas Department of 

     Transportation pertaining to the regulation of individuals, only

     those individuals who are Motor Carriers and those involved in the

     distribution and sale of motor vehicles comes under its authority. 

     (Texas Administrative Code, Title 43, Part 1, chapter 1, Rule 1.1)

  • Regarding the registration of motor vehicles, the only place in the

Texas Administrative Code where the registration requirements are

are in Title 37, Part 1, Chapter 4 – Commercial Vehicle

Regulations and Enforcement Procedures.  (Texas Administrative Code, Title 37, Part 1, Chapter 4) 

          4.  The Department of Public Safety is charged with the responsibility of enforcing registration requirements of commercial vehicles based on the Statutory provisions of the Texas Transportation Code, Chapter 502.  (Texas Administrative Code, Title 37, Part 1, Chapter 4, Subchapter C, Rule 4.31) 

  • The mission of the Texas Department of Public Safety regarding
  • traffic is to supervise traffic and regulate commercial and “for hire”  vehicles.  (Texas Administrative Code, Title 37, Part 1, Chapter 1, Subchapter A, Rule 1.2 (2). 

There is no mention of the regulation of non-commercial or “not for hire” vehicles mentioned in the Texas Administrative Code.  Mr. Black was not driving a commercial vehicle.

In Exhibit 7, Attached, please find Discovery items found while researching the offenses charged against Mr. Black.

Please see the Discovery Items Attached and made a part of this challenge.

If, after a close analysis of the Exhibits, the State of Texas proposes to proceed in the prosecution of these matters, MR. __________________ demands that he be informed regarding the Legislative Act, the Legislature and the Session that it was enacted that authorizes the Department of Transportation, the Department of Public Safety and the City of Irving to regulate the driving of vehicles that are not used for hire upon the roadways of Texas so long as that driving does not interfere with the rights or wellbeing of others or their property. 

Respectfully submitted,

Mr. ____________________ Date _________________

_______________________________________________ 

                                        Discovery

Made in the evaluation and clarification of the violation listed as:

JA051621    LP – NO LICENSE PLATE – MC, TRACTOR, TRA

Searched for “TEXAS – NO LICENSE PLATE – MC, TRACTOR, TRA” and found:

                       TEXAS TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE A. CERTIFICATES OF TITLE AND REGISTRATION OF VEHICLES

CHAPTER 504. LICENSE PLATES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 504.010.  ISSUANCE AND PLACEMENT OF LICENSE PLATE.  (a)  On payment of the prescribed fee, an applicant for motor vehicle registration shall be issued a license plate or set of plates.

(b)  Subject to Section 504.901, the department shall issue only one license plate or set of plates for a vehicle during the registration period set by rule.

(c)  The board may adopt rules regarding the placement of license plates for a motor vehicle, road tractor, motorcycle, trailer, or semitrailer.

Motor vehicle

49 CFR § 390.5T      Also mentioned below.

Motor vehicle means any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property, or any combination thereof determined by the Federal Motor Carrier Safety Administration, but does not include any vehicle, locomotive, or car operated exclusively on a rail or rails, or a trolley bus operated by electric power derived from a fixed overhead wire, furnishing local passenger transportation similar to street-railway service.

Please be advised that MR._________________ was not driving a vehicle under the supervision of the Federal Motor Carrier Safety Administration and he is not a Motor Carrier.

Texas Transportation Code § 201.904

(In a nut-shell please find below the vehicles that are subject to regulation by the State of Texas Department of Transportation, the Texas Department of Public Safety, and or the City of Irving.)

“The department shall erect and maintain on the highways and roads of this state appropriate signs that show the maximum lawful speed for commercial motor vehicles, truck tractors, truck trailers, truck semitrailers, and motor vehicles engaged in the business of transporting passengers for compensation or hire (buses).”

Please be advised that Mr. ____________________was not driving any of these types of vehicles.

Is Uber considered commercial driving?

Even though they’re personally owned, cars used to provide rides for UberLyft or one or the other rideshare companies are commercial vehicles when they’re in service. Google it up.

Searched for “Texas – compulsory safety standards for vehicles” and found:

TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE F. COMMERCIAL MOTOR VEHICLES

CHAPTER 644. COMMERCIAL MOTOR VEHICLE SAFETY STANDARDS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 644.001.  DEFINITIONS.  In this chapter:

(1)  “Commercial motor vehicle” means:

(A)  a commercial motor vehicle as defined by 49 C.F.R. Section 390.5, if operated interstate;  or

(B)  a commercial motor vehicle as defined by Section 548.001, if operated intrastate.

49 CFR § 390.5 – Definitions.

Commercial motor vehicle means any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle – ………………

Motor Vehicle

49 CFR § 390.5T

Motor vehicle means any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property, or any combination thereof determined by the Federal Motor Carrier Safety Administration, but does not include any vehicle, locomotive, or car operated exclusively on a rail or rails, or a trolley bus operated by electric power derived from a fixed overhead wire, furnishing local passenger transportation similar to street-railway service.

Please be advised that ___________________was not driving a vehicle under the supervision of the Federal Motor Carrier Safety Administration and he is not a Motor Carrier.

Searched for “Texas – compulsory safety standards for motor vehicles” and found:

TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE C. RULES OF THE ROAD

CHAPTER 548. COMPULSORY INSPECTION OF VEHICLES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 548.001.  DEFINITIONS.  In this chapter:

  • “Commercial motor vehicle” means a self-propelled or towed vehicle, other than a farm vehicle with a gross weight, registered weight, or gross weight rating of less than 48,000 pounds, that is used on a public highway to transport passengers or cargo if: ……………

NOTICE:  Sec. 548.001(1) is the only definition of any vehicle listed in

Chapter 548.001.  Definitions. In this chapter:

Please be advised that MR. __________________ was not driving a Commercial motor Vehicle.

Searched for “Texas – Compulsory maintenance of financial responsibility” and found:
TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE D. MOTOR VEHICLE SAFETY RESPONSIBILITY

CHAPTER 601. MOTOR VEHICLE SAFETY RESPONSIBILITY ACT

SUBCHAPTER A. GENERAL PROVISIONS

(5) “Motor vehicle” means a self-propelled vehicle designed for use on a highway, a trailer or semitrailer designed for use with a self-propelled vehicle, or a vehicle propelled by electric power from overhead wires and not operated on rails.

Please be advised that Mr. ___________________was not driving a self-propelled vehicle that is designed to pull a trailer or a semitrailer nor was he driving a vehicle propelled by electric power from overhead wires and not operated on rails.

Searched for “Motor Vehicle” in the United States Codes of Law and found:

18 USC 31: Definitions

*Title 18—Crimes And Criminal Procedure;   

PART I—CRIMES

CHAPTER 2—AIRCRAFT AND MOTOR VEHICLES

(6) Motor vehicle.-The term “motor vehicle” means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, passengers and property, or property or cargo.

(9) State.-The term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

(10) Used for commercial purposes.-The term “used for commercial purposes” means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit.

To The People Of These United States

To The People of These United States Regarding The 2020 Presidential Election  

With all the confusion going on today regarding the election of the President of the United States of America, I thought it good to bring to remembrance the workings of our Founding Fathers in setting up a more productive form of government than that which was afforded by the Continental Congress of the united Colonies.

The new government, The United States of America, was and is separate and distinct from the governments of the member States in the Union that are united by and under the Constitution for the United States of America.

There were two teams represented and united within that government.  We, The People and the State governments that were set up by the people of each separate state.                                                                                                                                                                                                  We see in 118 U.S. 356 – Yick Wo v. Hopkins that the Right to Life, Liberty and the pursuit of Happiness that was given by God to the People of these united States is safeguarded by the fact that sovereignty remains in the people under God.

As a means of protecting those rights that were given by God, the People of each state established governments, (the States of whatever state they were domiciled in) elected by the citizens of each state to protect their lives and property within the exterior limits of each state and endowed them with the power to accomplish that which they were established for to do.  Within the exterior limits of each state, the protection of the People’s life, property and wellbeing was and is the sole responsibility of the State government of wherever state they were citizens of.  

Regarding the protection of life and property, the National government’s authority is limited to within the territorial Jurisdiction of the United States government which includes Washington D.C., Puerto Rico, Guam, American Samoa, the Virgin Islands and any other lands or possessions under the exclusive jurisdiction of the United States.   

Within the outer limits of a state, the National government does not exist for any reason other than to exercise any of its specific delegated powers as listed in the Constitution for the United States of America.     

In McCulloch v. State of Maryland et al, we see that the people of all the states have created the general government and have conferred upon it the general power of taxation. The people of all the states, and the States themselves, are represented in congress and by their representatives, exercise this power.

Understanding that taxation is not the focal point herein, please notice that the “people of all the states” and “States themselves”, the two teams involved in the setting up of the new government, are represented in Congress.

The questions that I now ask are:

  1. Who represents the People in Congress?
  2. Who represents the State governments in Congress?
  3. How are their representatives chosen?
  4. Does it not make sense that each team would be responsible for choosing its own representatives? 

The answers to these questions are clearly laid out in the Constitution itself as it was originally written.  Keep in mind that Governments are created for the protection of the people who created them.  State governments protect the people and their property within each State.  The job of protecting the people is a function of State governments and therefore the protection of the people from foreign powers is indirectly the responsibility of the State governments and therefore the choosing of the Senate and the President is under their direction.  The Senate gives advice and consent to the President who is Commander in Chief of the armed forces used in the protection of the people from foreign enemies who want our form of government to be eliminated.   

As you will see below in George Washington’s farewell address, the only way that our God given Constitution and form of National Government could be conquered was and is to systematically alter the provisions of that Constitution thereby weakening it and eventually changing it altogether.  Welcome to the cause of our present dilemma!!! 

I now offer a short history leading up to the formation of our new government.

The Sovereign States

1776, September 09

Congress renames the nation “United States of America”

On September 9, 1776, the Continental Congress formally declares the name of the new nation to be the “United States” of America. This replaced the term “United Colonies,” which had been in general use.  In the Congressional declaration dated September 9, 1776, the delegates wrote, “That in all continental commissions, and other instruments, where, heretofore, the words ‘United Colonies’ have been used, the stile be altered for the future to the “United States.”

A resolution by Richard Henry Lee, which had been presented to Congress on June 7 and approved on July 2, 1776, issued the resolve, “That these United Colonies are, and of right ought to be, free and independent States….” As a result, John Adams thought July 2 would be celebrated as “the most memorable epoch in the history of America.” Instead, the day has been largely forgotten in favor of July 4, when Jefferson’s edited Declaration of Independence was adopted. That document also states, “That these United Colonies are, and of Right ought to be FREE AND INDEPENDENT STATES.” However, Lee began with the line, while Jefferson saved it for the middle of his closing paragraph.

By September, the Declaration of Independence had been drafted, signed, printed and sent to Great Britain. What Congress had declared to be true on paper in July was clearly the case in practice, as Patriot blood was spilled against the British on the battlefields of Boston, Montreal, Quebec and New York. Congress had created a country from a cluster of colonies and the nation’s new name reflected that reality.

In Congress, July 4, 1776

The unanimous Declaration of the thirteen united States of America, 

When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

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, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly, all experience hath shewn, that all mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.  Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.  ……………. .  “That these United Colonies are, and of Right ought to be FREE AND INDEPENDENT STATES.”

Now we come to the main topic of this discussion.  Take a read and notice the two teams that are to form our National Government and what part each is supposed to be responsible for establishing.

The Constitution for the United States of America 

“Preamble

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

The People ordained and established the Constitution for the United States of America.  The People were and still are the main characters in our National Government but most do not realize that fact.

“Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Who establishes the Senate by choosing the Senators and who establishes the House of Representatives by choosing the Representatives?  Does it not make sense that our Founding Fathers thought long and hard before they determined who was to establish the two arms of Congress.  I believe they spelled it out very clearly.  

“Section. 2.

The House of Representatives shall be composed of Members chosen every second year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

The House of Representatives represents the People and are their voice in interacting with the other departments of the government.  All revenue bills originate in the House of Representatives which eliminates “taxation without representation”.

Another function of theirs is that in the event the State legislatures are unable to perform the duty of choosing the Electors for the election of the President, the task of choosing the President is passed back to the House of Representatives to elect the President on behalf of the People.  Remember, the People are in charge!!!

“Section 3.

The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.

Could the Founding Fathers be any more clear than that?  The Senators represent the State Governments and are chosen by their legislatures.

The method of choosing the Senators was changed because the Republican and the Democratic Parties in some States could not come together to choose their two Senators therefore they had no representation in the Senate.  There is no logical reason to switch the choosing of two people to serve as Senators to being elected by the People’s popular vote. 

It was the second step towards turning our Republic into a Democracy.  The first step was to allow political parties to gain control of our political processes.

Doesn’t that sound kinda like the way things are happening now days with the Presidential election?   Well guess what is taking place as we are witnessing the third phase of the destruction of our Republic. Have you ever heard of the National Popular Vote Interstate Compact?  States are coming together and forming a compact to finalize the side stepping of the provisions of the Constitution that says that the State legislatures are to choose the Electors to vote for the President.  The first step in changing the way the President is elected was to change the method of choosing the electors to a popular vote for the candidates that are running instead of the legislatures choosing the electors.  The political parties choose a set of Electors and if their candidate wins the popular vote it gets all of the Electors for that State.   

Check out that Compact that is in the making as we sleep for more details.

“Article II

Section 1

The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:

Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress:”

The State governments are supposed to appoint the Electors and not the Political parties.

I mentioned George Washington’s Farewell Address above.  Below please find an excerpt from that Farewell Address that lets us know what is going on and what is not being allowed now and it has been going on for a long, long time.   

George Washington’s Farewell Address

Excerpts to Review

“Here, perhaps, I ought to stop. But a solicitude for your welfare, which cannot end but with my life, and the apprehension of danger, natural to that solicitude, urge me, on an occasion like the present, to offer to your solemn contemplation, and to recommend to your frequent review, some sentiments which are the result of much reflection, of no inconsiderable observation, and which appear to me all-important to the permanency of your felicity as a people. These will be offered to you with the more freedom, as you can only see in them the disinterested warnings of a parting friend, who can possibly have no personal motive to bias his counsel. Nor can I forget, as an encouragement to it, your indulgent reception of my sentiments on a former and not dissimilar occasion.

Interwoven as is the love of liberty with every ligament of your hearts, no recommendation of mine is necessary to fortify or confirm the attachment.

The unity of government which constitutes you one people is also now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But as it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.

For this you have every inducement of sympathy and interest. Citizens, by birth or choice, of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together; the independence and liberty you possess are the work of joint counsels, and joint efforts of common dangers, sufferings, and successes

While, then, every part of our country thus feels an immediate and particular interest in union, all the parts combined cannot fail to find in the united mass of means and efforts greater strength, greater resource, proportionably greater security from external danger, a less frequent interruption of their peace by foreign nations; and, what is of inestimable value, they must derive from union an exemption from those broils and wars between themselves, which so frequently afflict neighboring countries not tied together by the same governments, which their own rival ships alone would be sufficient to produce, but which opposite foreign alliances, attachments, and intrigues would stimulate and embitter. Hence, likewise, they will avoid the necessity of those overgrown military establishments which, under any form of government, are inauspicious to liberty, and which are to be regarded as particularly hostile to republican liberty. In this sense it is that your union ought to be considered as a main prop of your liberty, and that the love of the one ought to endear to you the preservation of the other.

These considerations speak a persuasive language to every reflecting and virtuous mind, and exhibit the continuance of the Union as a primary object of patriotic desire. Is there a doubt whether a common government can embrace so large a sphere? Let experience solve it. To listen to mere speculation in such a case were criminal. We are authorized to hope that a proper organization of the whole with the auxiliary agency of governments for the respective subdivisions, will afford a happy issue to the experiment. It is well worth a fair and full experiment. With such powerful and obvious motives to union, affecting all parts of our country, while experience shall not have demonstrated its impracticability, there will always be reason to distrust the patriotism of those who in any quarter may endeavor to weaken its bands.

In contemplating the causes which may disturb our Union, it occurs as matter of serious concern that any ground should have been furnished for characterizing parties by geographical discriminations, Northern and Southern, Atlantic and Western; whence designing men may endeavor to excite a belief that there is a real difference of local interests and views. One of the expedients of party to acquire influence within particular districts is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heart burnings which spring from these misrepresentations; they tend to render alien to each other those who ought to be bound together by fraternal affection. The inhabitants of our Western country have lately had a useful lesson on this head; they have seen, in the negotiation by the Executive, and in the unanimous ratification by the Senate, of the treaty with Spain, and in the universal satisfaction at that event, throughout the United States, a decisive proof how unfounded were the suspicions propagated among them of a policy in the General Government and in the Atlantic States unfriendly to their interests in regard to the Mississippi; they have been witnesses to the formation of two treaties, that with Great Britain, and that with Spain, which secure to them everything they could desire, in respect to our foreign relations, towards confirming their prosperity. Will it not be their wisdom to rely for the preservation of these advantages on the Union by which they were procured ? Will they not henceforth be deaf to those advisers, if such there are, who would sever them from their brethren and connect them with aliens?

To the efficacy and permanency of your Union, a government for the whole is indispensable. No alliance, however strict, between the parts can be an adequate substitute; they must inevitably experience the infractions and interruptions which all alliances in all times have experienced. Sensible of this momentous truth, you have improved upon your first essay, by the adoption of a constitution of government better calculated than your former for an intimate union, and for the efficacious management of your common concerns. This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.

All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests.

However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.

Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments as of other human institutions; that experience is the surest standard by which to test the real tendency of the existing constitution of a country; that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual change, from the endless variety of hypothesis and opinion; and remember, especially, that for the efficient management of your common interests, in a country so extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable. Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian. It is, indeed, little else than a name, where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property.

I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.

It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

There is an opinion that parties in free countries are useful checks upon the administration of the government and serve to keep alive the spirit of liberty. This within certain limits is probably true; and in governments of a monarchical cast, patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being constant danger of excess, the effort ought to be by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?

Promote then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.

As a very important source of strength and security, cherish public credit. One method of preserving it is to use it as sparingly as possible, avoiding occasions of expense by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it, avoiding likewise the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertion in time of peace to discharge the debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear. The execution of these maxims belongs to your representatives, but it is necessary that public opinion should co-operate. To facilitate to them the performance of their duty, it is essential that you should practically bear in mind that towards the payment of debts there must be revenue; that to have revenue there must be taxes; that no taxes can be devised which are not more or less inconvenient and unpleasant; that the intrinsic embarrassment, inseparable from the selection of the proper objects (which is always a choice of difficulties), ought to be a decisive motive for a candid construction of the conduct of the government in making it, and for a spirit of acquiescence in the measures for obtaining revenue, which the public exigencies may at any time dictate.

Observe good faith and justice towards all nations; cultivate peace and harmony with all. Religion and morality enjoin this conduct; and can it be, that good policy does not equally enjoin it? It will be worthy of a free, enlightened, and at no distant period, a great nation, to give to mankind the magnanimous and too novel example of a people always guided by an exalted justice and benevolence. Who can doubt that, in the course of time and things, the fruits of such a plan would richly repay any temporary advantages which might be lost by a steady adherence to it ? Can it be that Providence has not connected the permanent felicity of a nation with its virtue ? The experiment, at least, is recommended by every sentiment which ennobles human nature. Alas! is it rendered impossible by its vices?”

The Presidential Electors

How Electoral College Electors Are Chosen Today

https://www.history.com/news/electors-chosen-electoral-college

Article II, Section 1 of the Constitution states that electors can’t be a member of Congress, or hold federal office, but left it up to individual states to figure out everything else. According to the 14th Amendment, ratified after the Civil War, electors also can’t be anyone who has “engaged in insurrection or rebellion against the United States, or given aid or comfort to its enemies.”

The Constitution gave each state a number of electors equal to the combined total of representatives and senators who represent that state in the U.S. Congress. State legislatures are responsible for choosing electors, but how they do this varies from state to state. Until the mid-1800s, it was common for many state legislatures to simply appoint electors, while other states let their citizens decide on electors.

Today, the most common method of choosing electors is by state party convention. Each political party’s state convention nominates a slate of electors, and a vote is held at the convention. In a smaller number of states, electors are chosen by a vote of the state party’s central committee.

Either way, political parties usually choose people whom they want to reward for their service to and support of the party. Electors can be elected officials or party leaders in the state, or people who have some kind of personal or professional connection with the party’s candidate.

In closing, I believe you can see how our processes of electing government representatives to the numerous positions in our National government have been overridden and commandeered by the political parties that George Washington warned us about. 

Let us come together and stand as We The People instead of we these people and we those other people who are led around by powers from across the waters.

Share this with your State government representatives and encourage everyone you know to do the same.  The way to change our national government is by changing the understandings of our State governments. This is OUR House and it is time to clean it up!

Be Blessed.

Invitation to Our State Governors and Legislators

This is your invitation to visit our website.  https://sovereignstateslibertywatchgroup.com We have posted information gathered from sources that can’t be refuted regarding the Sixteenth Amendment and the Income Tax.  You will find that the Sixteenth Amendment only authorized an excise tax on the privilege of doing business in corporate form with the amount of the tax being based on the amount of income received from that corporate activity.

You will see that State citizens not doing business in corporate form are not required to pay income taxes on their earnings.  You will also see why it is the responsibility of the State governments to alter the misconceptions regarding the Sixteenth Amendment by calling for an amendment to the Sixteenth Amendment to specifically denote “corporate incomes”.

When the States put an end to the income taxation of their constituents they will no longer have to reach out to Washington for funds to pay their expenses of operating their government functions.

We expect our representatives in government to take note of the information provided on our site.  We expect to see positive responses from each of you so that We, The People of the Sovereign States in the Union don’t have to take any further action in regards to this issue.

Please leave you questions or concerns in the comment section of each presentment of information.  We want to hear your proposed actions to facilitate an amendment to the Sixteenth Amendment so that it reads:

The Congress shall have power to lay and collect taxes on CORPORATE incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Be blessed in all of your endeavors.

Sovereign States Liberty Watch Group

Presentment I – Historical Events Leading Up To The Passage Of The Sixteenth Amendment As The Powers That Be Would Have Us To Believe

Please see below an overview of the Income Tax  leading up to the ratification of the Sixteenth Amendment as the powers that be would have us understand it.  Pay close attention to the followimg facts:

  1. Sixteenth Amendment was passed by Congress on July 2, 1909 and ratified February 3, 1913.
  2. In 1909 progressives in Congress again attached a provision for an income tax to a tariff bill that became law if the Sixteenth Amendment was ratified.
  3. and on February 25, 1913, with the certification by Secretary of State Philander C. Knox, the 16th amendment took effect.
  4. They forgot to tell us that the Income Tax Act of 1909 was the Corporation Tax Act of 1909.

“16th Amendment to the U.S. Constitution: Federal Income Tax (1913)” “Passed by Congress on July 2, 1909, and ratified February 3, 1913, the 16th amendment established Congress’s right to impose a Federal income tax.

Far-reaching in its social as well as its economic impact, the income tax amendment became part of the Constitution by a curious series of events culminating in a bit of political maneuvering that went awry. The financial requirements of the Civil War prompted the first American income tax in 1861. At first, Congress placed a flat 3-percent tax on all incomes over $800 and later modified this principle to include a graduated tax. Congress repealed the income tax in 1872, but the concept did not disappear. After the Civil War, the growing industrial and financial markets of the eastern United States generally prospered. But the farmers of the south and west suffered from low prices for their farm products, while they were forced to pay high prices for manufactured goods. Throughout the 1860s, 1870s, and 1880s, farmers formed such political organizations as the Grange, the Greenback Party, the National Farmers’ Alliance, and the People’s (Populist) Party. All of these groups advocated many reforms (see the Interstate Commerce Act) considered radical for the times, including a graduated income tax.

In 1894, as part of a high tariff bill, Congress enacted a 2-percent tax on income over $4,000. The tax was almost immediately struck down by a five-to-four decision of the Supreme Court, even though the Court had upheld the constitutionality of the Civil War tax as recently as 1881. Although farm organizations denounced the Court’s decision as a prime example of the alliance of government and business against the farmer, a general return of prosperity around the turn of the century softened the demand for reform. Democratic Party Platforms under the leadership of three-time Presidential candidate William Jennings Bryan, however, consistently included an income tax plank, and the progressive wing of the Republican Party also espoused the concept.

In 1909 progressives in Congress again attached a provision for an income tax to a tariff bill. Conservatives, hoping to kill the idea for good, proposed a constitutional amendment enacting such a tax; they believed an amendment would never receive ratification by three-fourths of the states. Much to their surprise, the amendment was ratified by one state legislature after another, and on February 25, 1913, with the certification by Secretary of State Philander C. Knox, the 16th amendment took effect.

Yet in 1913, due to generous exemptions and deductions, less than 1 percent of the population paid income taxes at the rate of only 1 percent of net income. This document settled the constitutional question of how to tax income and, by so doing, effected dramatic changes in the American way of life.”

Below please find the fruits of many years of research pertaining to the constitutional authority for the U.S. Congress to tax the earnings of State citizens within the States of the Union. We will show you our sources for the information we offer on this site with a brief history of each. This will build a foundation upon which we build our presentment of information for our State Government Representatives and Senators. Our intention is to bring them face to face with the truth about the history and purpose of the Sixteenth Amendment and why it is their responsibility to see that that understanding is corrected ASAP!!!!

What they did not tell us is that the 1909 provision for an income tax was a tax on income received from corporate activity.  Better known as the Corporate Tax Act of 1909.

SIXTEENTH AMENDMENT As it reads today. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

As it should read. The Congress shall have power to lay and collect taxes on corporate incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Presentment II – Chief Cornerstone and Building Block for Presentment of Information Regarding the History and Purpose of the Sixteenth Amendment.

Why do you pay “Income Tax” on your earnings? Most people will respond like this. “Because I have To pay them.” But is that really the truth?

Our State legislatures believe that the Sixteenth Amendment gave Congress the authority to tax our earnings. This group is established to broadcast far and wide the truth about the History and Purpose of the Sixteenth Amendment. You have been invited to this group in hopes that you will see the benefit of our endeavors as they relate to your
financial well being as well as the financial well being of our State governments. If you decide that the fire is too hot or our goals are too risky for your “safe zone”, simply request to leave the group.
________________________________________________________________________________________

Our second presentment of information is a joint resolution issued by the House of Representatives and the Senate of the U.S. Congress. This information is good for distribution to State legislatures and to the public at large. Lets take it to them!!

PRESENTMENT II.

AUTHORIZATION
PUBLIC LAW 91–589, 84 STAT. 1585, 2 U.S.C. § 168
JOINT RESOLUTION Authorizing the preparation and printing of a revised
edition of the Constitution of the United States of America—Analysis and
Interpretation, of decennial revised editions thereof, and of biennial cumulative
supplements to such revised editions.

“Whereas the Constitution of the United States of America—
Analysis and Interpretation, published in 1964 as Senate Document
Numbered 39, Eighty-eighth Congress, serves a very
useful purpose by supplying essential information, not only
to the Members of Congress but also to the public at large;

Whereas such document contains annotations of cases decided
by the Supreme Court of the United States to June 22, 1964;

Whereas many cases bearing significantly upon the analysis and
interpretation of the Constitution have been decided by the
Supreme Court since June 22, 1964;

Whereas the Congress, in recognition of the usefulness of this
type of document, has in the last half century since 1913,
ordered the preparation and printing of revised editions of
such a document on six occasions at intervals of from ten
to fourteen years; and

Whereas the continuing usefulness and importance of such a document
will be greatly enhanced by revision at shorter intervals
on a regular schedule and thus made more readily available
to Members and Committees by means of pocket-part
supplements:

Now, therefore, be it

Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled, That the Librarian
of Congress shall have prepared—
(1) a hardbound revised edition of the Constitution of the United
States of America—Analysis and Interpretation, published
as Senate Document Numbered 39, Eighty-eighth Congress
(referred to hereinafter as the “Constitution Annotated”), which
shall contain annotations of decisions of the Supreme Court
of the United States through the end of the October 1971
term of the Supreme Court, construing provisions of the Constitution;
(2) upon the completion of each of the October 1973, October
1975, October 1977, and October 1979 terms of the Su-
preme Court, a cumulative pocket-part supplement to the
hardbound revised edition of the Constitution Annotated prepared
pursuant to clause (1), which shall contain cumulative
annotations of all such decisions rendered by the Supreme
Court after the end of the October 1971 term;
(3) upon the completion of the October 1981 term of the Supreme
Court, and upon the completion of each tenth October
term of the Supreme Court thereafter, a hardbound decennial
revised edition of the Constitution Annotated, which
shall contain annotations of all decisions theretofore rendered
by the Supreme Court construing provisions of the Constitution;”

(Construing provisions of the Constitution – to give meaning to or to interpret the provisions of the Constitution.)

As per this Joint Resolution, we are sharing this essential information revealed in the analysis and interpretation of United States Supreme Court cases giving meaning to and or interpreting the provisions of the Sixteenth Amendment to the Constitution for the United States of America.

Be Blessed

Presentment III – History and purpose of the Sixteenth Amendment

Below please find an excerpt from ‘The Constitution of the United States of America, Analysis and Interpretation” that shows the History and Purpose of the Sixteenth Amendment to the Constitution of the United States of America, prepared by the Congressional Research Service at the request of a Joint Resolution of the House of Representatives and the Senate of the United States in Congress.

A thorough examination will prove that the Income Tax is a tax on Corporate income rather than a tax on the earnings of State Citizens.

Your State Representatives and Senators believe the Sixteenth Amendment gave Congress power to tax our earnings.  The United States Supreme Court says otherwise!!

 

Analysis and Interpretation of Cases Construing Sixteenth Amendment

INCOME TAX

SIXTEENTH AMENDMENT

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

INCOME TAX

History and Purpose of the Amendment

The ratification of the Sixteenth Amendment was the direct consequence of the Court’s 1895 decision in Pollock v. Farmers’ Loan & Trust Co.1 holding unconstitutional Congress’s attempt of the previous year to tax incomes uniformly throughout the United States.2 A tax on incomes derived from property,3 the Court declared, was a “direct tax,” which Congress, under the terms of Article I, § 2, and § 9, could impose only by the rule of apportionment according to population. Scarcely fifteen years earlier the Justices had unanimously sustained 4 the collection of a similar tax during the Civil War,5 the only other occasion preceding the Sixteenth Amendment in which Congress had used this method of raising revenue.6 During the years between the Pollock decision in 1895 and the ratification of the Sixteenth Amendment in 1913, the Court gave evidence of a greater awareness of the dangerous consequences to national solvency that Pollock threatened, and partially circumvented the threat, either by taking refuge in redefinitions of “direct tax” or by emphasizing the history of excise taxation. Thus, in a series of cases, notably Nicol v. Ames,7 Knowlton v. Moore,8 and Patton v. Brady,9 the Court held the following taxes to have been levied merely upon one of the “incidents of ownership” and hence to be excises: a tax that involved affixing revenue stamps to memoranda evidencing the sale of merchandise on commodity exchanges, an inheritance tax, and a war revenue tax upon tobacco on which the hitherto imposed excise tax had already been paid and that was held by the manufacturer for resale. Under this approach, the Court found it possible to sustain a corporate income tax as an excise “measured by income” on the privilege of doing business in corporate form.10 The adoption of the Sixteenth Amendment, however, put an end to speculation whether the Court, unaided by constitutional amendment, would persist along these lines of construction until it had reversed its holding in Pollock. Indeed, in its initial appraisal 11 of the Amendment, it classified income taxes as being inherently “indirect.” “[T]he command of the Amendment that all income taxes shall not be subject to apportionment by a consideration of the sources from which the taxed income may be derived, forbids the application to such taxes of the rule applied in the Pollock Case by which alone such taxes were removed from the great class of excises, duties and imports subject to the rule of uniformity and were placed under the other or direct class.” 12 “[T]he Sixteenth Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged . . . .” 13

Income Subject to Taxation

Building upon definitions formulated in cases construing the Corporation Tax Act of 1909,14 the Court initially described income as the “gain derived from capital, from labor, or from both combined,” inclusive of the “profit gained through a sale or conversion of capital assets”; 15 in the following array of factual situations it subsequently applied this definition to achieve results that have been productive of extended controversy.  ……………………………………………………………………………………………………

Foot Notes:

1 157 U.S. 429 (1895); 158 U.S. 601 (1895).  2 Ch. 349, § 27, 28 Stat. 509, 553.        3. The Court conceded that taxes on incomes from “professions, trades, employments, or vocations” levied by this act were excise taxes and therefore valid. The entire statute, however, was voided on the ground that Congress never intended to permit the entire “burden of the tax to be borne by professions, trades, employments, or vocations” after real estate and personal property had been exempted, 158 U.S. at 635.  4 Springer v. United States, 102 U.S. 586 (1881). 5 Ch. 173, § 116, 13 Stat. 223, 281 (1864).  6 For an account of the Pollock decision, see “From the Hylton to the Pollock Case,” under Art. I, § 9, cl. 4, supra. 7 173 U.S. 509 (1899).   8 178 U.S. 41 (1900).

9 184 U.S. 608 (1902). 10 Flint v. Stone Tracy Co., 220 U.S. 107 (1911). 11 Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916); Stanton v. Baltic Mining Co., 240 U.S. 103 (1916); Tyee Realty Co. v. Anderson, 240 U.S. 115 (1916). 12 Brushaber v. Union Pac. R.R., 240 U.S. 1, 18–19 (1916). 13 Stanton v. Baltic Mining Co., 240 U.S. 103, 112 (1916). 14 Stratton’s Independence, Ltd. v. Howbert, 231 U.S. 399 (1913); Doyle v. Mitchell Bros. Co., 247 U.S. 179 (1918). 15 Eisner v. Macomber, 252 U.S. 189, 207 (1920); Bowers v. Kerbaugh-Empire Co., 271 U.S. 170 (1926).

Presentment IV – Definition of Income

Collect Taxes On Whose Income!

Below please find excerpts from US Supreme Court Cases analyzed and interpreted by the Congressional Research Service for Senate Document 112 – 9 reflecting the true meaning of the term “Income” as it is used in the Sixteenth Amendment.

Black’s Law Dictionary defines an excise as:

Excise taxes are taxes “laid upon the manufacture, sale or consumption of  commodities within the country, upon licenses to pursue certain occupations, and upon corporate privileges. ” Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 349 (1911); or a tax on privileges, syn. “privilege tax”.

The Supreme Court case specifically referenced by Black’s, has provided a clear and definite scope of the excise taxing authority. In Flint v. Stone Tracy Co., 220 U.S. 107 (1911)ill, the Supreme Court held that:

“Duties and imposts are terms commonly applied to levies made by governments on the importation or exportation of commodities. Excises are “taxes laid upon the manufacture, sale or consumption of commodities within the country, upon licenses to pursue certain occupations, and upon corporate privileges … the requirement to pay such taxes involves the exercise of the privilege and if business is not done in the manner described no tax is payable …it is the privilege which is the subject of the tax and not the mere buying, selling or handling of goods. ” Cooley, Const. Lim., 7th ed., 680.” Flint, supra, at 151

Merchants’ Loan & Trust Co. v. Smietanka 255 U.S. 509 (1921) “It is obvious that these decisions in principle rule the case at bar if the word “income” has the same meaning in the Income Tax Act of 1913 that it had in the Corporation Excise Tax Act of 1909, and that it has the same scope of meaning was in effect decided in Southern Pacific Co. v. Lowe 247 U.S. 330, 335, where it was assumed for the purposes of decision that there was no difference in its meaning as used in the act of 1909 and in the Income Tax Act of 1913. There can be no doubt that the word must be given the same meaning and content in the Income Tax Acts of 1916 and 1917 that it had in the act of 1913. When to this we add that in Eisner v. Macomber, supra, a case arising under the same Income Tax Act of 1916 which is here involved, the definition of “income” which was applied was adopted from Strattons’ Independence v. Howbert, arising under the Corporation Excise Tax Act of 1909, with the addition that it should include “profit gained through sale or conversion of capital assets,” there would seem to be no room to doubt that the word must be given the same meaning in all the Income Tax Acts of Congress that was given to it in the Corporation Excise Tax Act, and that what that meaning is has now become definitely settled by decisions of this Court.”

So let’s examine the Corporate Tax Act of 1909 (36 Stat. 11, 112).  It states:

“That every corporation, joint stock company or association, organized for profit and having a capital stock represented by shares … now or hereafter organized under the laws of the United State or of any State … shall be subject to pay annually a special excise tax with respect to carrying on or doing business by such corporation … equivalent to one per centum on the entire net income over and above five thousand dollars received by it from all sources during such  year….”

The Supreme Court identifies that the constitutional justification for the corporate “income tax”, is as an indirect excise tax “imposed with respect to the doing of business in corporate form”, just as it has been defined under Flint two years   earlier.

As the court noted in US. v. Ballard 535 F.2d 400 at page 404, the word “income” is not actually defined in the Internal Revenue Code. However, the Supreme Court has consistently defined it in a number of cases. In Stratton’s Independence v. Howbert, 231 U.S. 399 (1913), the court wrote:

“As has been repeatedly remarked, the corporation tax act of 1909 was not intended to be and is not, in any proper sense, an income tax law. This court has decided in the Pollock Case that the income tax of 1894 amounted in effect to a direct tax upon property, and was invalid because not apportioned according to population, as prescribed by the Constitution. The act of 1909 avoided this difficulty by imposing not an income tax, but an excise tax upon the conduct of business in a corporate capacity, measuring, however, the amount of tax by the income of the corporation, . . .”

“Evidently Congress adopted the income as the measure of the tax to be imposed with respect to the doing of business in corporate form because it desired that the excise should be imposed, approximately at least, with regard to the  amount  of  benefit  presumably derived by  such  corporations  from the  current  operations  of the government. In Flint v. Stone Tracy Co. 220 U.S. 107, 165 , 55 S. L. ed. 107, 419,  31  Sup.  Ct.  Rep. 342, Ann. Cas. 1912 B. 1312, it was held that Congress, in exercising the right to tax a legitimate subject of taxation as a franchise or privilege, was not debarred by the Constitution from measuring the taxation by the total  income,  although  derived  in part from property which, considered by itself, was not  taxable.  It was  reasonable  that  Congress should fix upon gross income, without  distinction  as to  source,  as a convenient and sufficiently accurate index of the importance of the business transacted.” Stratton’s Independence, Ltd.  V  Howbert,  231 U.S. 399, at 416 -417 (1913)

And the Supreme Court tells us again in Eisner vs. Macomber,_252 U.S.  189 (1920), on page   205, that:

“The Sixteenth Amendment  must  be construed  in connection  with the taxing  clauses  of  the original Constitution and the effect attributed to them before the amendment was  adopted. In Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 , 15 Sup. Ct. 912, under the Act of August 27, 1894 (28 Stat. 509, 553, c.  349, 27),  it was  held  that  taxes  upon rents and profits of real estate and upon returns  from  investments  of  personal  property were in effect direct taxes upon the property from which such income arose, imposed by reason of ownership; and that Congress could not impose such taxes without apportioning them among the states according to population, as required by  article  1, 2,  cl.  3,  and section 9, cl. 4, of the original  Constitution.

Afterwards, and evidently in recognition of the limitation upon the taxing power of Congress thus determined, the Sixteenth Amendment was adopted, in words lucidly expressing the object to be accomplished:

‘The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.’  ……..“

As repeatedly held, this did not extend the taxing power to new subjects (citizens of the States), but merely removed the necessity which otherwise might  exist for an apportionment  among the states  of taxes laid on income. Brushaber v. Union Pacific R. R. Co., 240 U.S. 1 , 17-19, 36 Sup.  Ct. 236, Ann. Cas. 1917B, 713, L. R. A. 1917D, 414; Stanton v. Baltic  Mining  Co., 240  U.S.  103 ,  112 et seq., 36 Sup. Ct. 278; Peck & Co.  v.  Lowe,  247 U.S.  165,  172 ,  173 S., 38 Sup. Ct. 432.

After examining dictionaries in common use (Bouv. L. D.; Standard Diet.; Webster’s Intemat. Diet.; Century Diet.), we find little to add to the succinct definition adopted in two cases arising under the Corporation Tax Act of 1909 (Stratton’s Independence v. Howbert, 231 U.S. 399, 415 , 34 S. Sup. Ct. 136, 140 [58 L. Ed. 285]; Doyle v. Mitchell Bros. Co.,

247 U.S. 179, 185 , 38 S. Sup. Ct. 467, 469 [62 L. Ed. 1054]), ‘Income may be defined as the gain derived from capital, from labor, or from both combined,’ provided it be understood to include profit gained through a sale or conversion of capital assets, to which it was applied  in the Doyle Case, 247 U.S.  183, 185 , 38 S. Sup. Ct. 467, 469  (62 L.   Ed. 1054).

“Certainly the term “income” has no broader meaning in the 1913 Act than in that of  1909 (See Stratton’s Independence v. Howbert, 231 U.S. 399, 416, 417), and for the present purpose we assume there is no difference in its meaning as used in the two acts. Southern Pacific  v.Lowe, 247 U.S. 330 (1918)      619

And before the 1921 Act this Court has indicated (see Eisner v. Macomber, 252 U.S. 189, 207), what it later held, that “income, “as used in the revenue acts taxing income, adopted since the Sixteenth Amendment, has the same meaning that it had in the Act of 1909. Merchant’s Loan &Y Trust Co. v. Smientanka, 255 U.S 509, 519; see Southern  Pacific  Co. v. Lowe, 247 U.S. 330, 335 Burnet  v. Harmel,    287 U.S. 103, (1932)

“Whatever difficulty there may be about a precise and scientific definition of ‘income,’ it imports, as used here, something entirely distinct from principal or capital either as a subject of taxation or as a measure of the tax; conveying rather the idea of gain  or increase ARISING FROM CORPORATE ACTIVITIES. As was said in Stratton’s Independence v. Howbert, 231 U.S. 399, 415 , 34 S. Sup. Ct. 136: ‘Income may be defined as the gain derived from capital, from labor, or from both combined.”‘ Doyle v. Mitchell Bros., 247 U.S. 179, (1918)

In Flint v. Stone Tracy  Co. 220 U.S. 107, 165, 55 S.L. ed. 107, 419, 31 Sup. Ct. Rep. 342, 1912 B. 1312, it was held that Congress, in exercising the right to tax a legitimate subject of taxation as a franchise or privilege, was not debarred by the Constitution from measuring the taxation by the total income, although derived in part from property which, considered by itself, was not taxable.” Stratton ‘s Independence, Ltd. V. Howbert, 231 U.S. 399, 417.

 

Be Blessed

Presentment V – Scope of IRS “Income Tax” Collecting Authority

Internal Revenue Service

Please find below proof documents showing the authority of the Internal Revenue Service to enforce provisions of the Internal Revenue Code.  If you have questions or comments please leave them in the “Comment” section for this post.

Exhibit A

Title 26U.S. CodeInternal Revenue Code     https://www.law.cornell.edu/uscode/text/26

The Internal Revenue Code (IRC) is the body of law that codifies all federal tax laws, including income, estate, gift, excise, alcohol, tobacco, and employment taxes.  Jul 18, 2017.

Please note that there are five different kinds of taxes, Subtitle A – E, and only one Procedure and Administration Subtitle, Subtitle F.  How do we know which subsections of Subtitle F apply to each of the five different kinds of taxes?

U.S. Code: Title 26 – INTERNAL REVENUE CODE

 

Exhibit B

Tax Code, Regulations

https://www.irs.gov/privacy-disclosure/tax-code-regulations-and-official-guidance

Internal Revenue Code

Federal tax law begins with the Internal Revenue Code (IRC), enacted by Congress in Title 26 of the United States Code (26 U.S.C.).

Treasury (Tax) Regulations

Treasury regulations (26 C.F.R.)–commonly referred to as Federal tax regulations–pick up where the Internal Revenue Code (IRC) leaves off by providing the official interpretation of the IRC by the U.S. Department of the Treasury.

 

Exhibit C

Internal Revenue Service – Procedural Rules

https://www.law.cornell.edu/cfr/text/26/601.101

26 CFR 601.101 – Introduction.

  • 601.101 Introduction.

(a)General. The Internal Revenue Service is a bureau of the Department of the Treasury under the immediate direction of the Commissioner of Internal Revenue. The Commissioner has general superintendence of the assessment and collection of all taxes imposed by any law providing internal revenue. The Internal Revenue Service is the agency by which these functions are performed. Within an internal revenue district the internal revenue laws are administered by a district director of internal revenue. The Director, Foreign Operations District, administers the internal revenue laws applicable to taxpayers residing or doing business abroad, foreign taxpayers deriving income from sources within the United States, and taxpayers who are required to withhold tax on certain payments to nonresident aliens and foreign corporations, provided the books and records of those taxpayers are located outside the United States. For purposes of these procedural rules any reference to a district director or a district office includes the Director, Foreign Operations District, or the District Office, Foreign Operations District, if appropriate. Generally, the procedural rules of the Service are based on the Internal Revenue Code of 1939 and the Internal Revenue Code of 1954, and the procedural rules in this part apply to the taxes imposed by both Codes except to the extent specifically stated or where the procedure under one Code is incompatible with the procedure under the other Code. Reference to sections of the Code are references to the Internal Revenue Code of 1954, unless otherwise expressly indicated.

(b)Scope. This part sets forth the procedural rules of the Internal Revenue Service respecting all taxes administered by the Service, and supersedes the previously published statement (26 CFR (1949 ed., Part 300-End) Parts 600 and 601) with respect to such procedural rules. Subpart A provides a descriptive statement of the general course and method by which the Service’s functions are channeled and determined, insofar as such functions relate generally to the assessment, collection, and enforcement of internal revenue taxes. Certain provisions special to particular taxes are separately described in Subpart D of this part. Conference and practice requirements of the Internal Revenue Service are contained in Subpart E of this part. Specific matters not generally involved in the assessment, collection, and enforcement functions are separately described in Subpart B of this part. A description of the rule making functions of the Department of the Treasury with respect to internal revenue tax matters is contained in Subpart F of this part.Subpart G of this part relates to matters of official record in the Internal Revenue Service and the extent to which records and documents are subject to publication or open to public inspection. This part does not contain a detailed discussion of the substantive provisions pertaining to any particular tax or the procedures relating thereto, and for such information it is necessary that reference be made to the applicable provisions of law and the regulations promulgated thereunder. The regulations relating to the taxes administered by the Service are contained in title 26 of the Code of Federal Regulations.

38 FR 4955, Feb. 23, 1973 and 41 FR 20880, May 21, 1976, as amended at 45 FR 7251, Feb. 1, 1980; 49 FR 36498, Sept. 18, 1984; T.D. 8685, 61 FR 58008, Nov. 12, 1996]

If you want to determine which parts of the IRC the IRS has authority to administer, you must first determine where the regulations for that section of the IRC are found.  If the regulations are not found in Title 26 of the Code of Federal Regulations then the IRS has no authority to administer that section.

The Parallel Table of Authorities and Rules will allow you to determine which Sections of the IRC the IRS has authority to enforce.

Exhibit D

Parallel Table of Authorities and Rules

https://www.law.cornell.edu/ptoa/uscode

Please note:

  1. The column at the left is the Subsection of the Internal Revenue Code (IRC) in question.
  2. The center column shows the Code of Federal Regulations (CFR) Title that interprets the corresponding section of the IRC.
  3. The column to the right shows the part of the CFR Title that relates to the IRC Subsection in question.

Presentment VI – Current Method of Collecting “Income Tax” From State Citizens

The Internal Revenue Code (IRC) is the body of law that codifies all federal tax laws, including income, estate, gift, excise, alcohol, tobacco, and employment taxes.  Jul 18, 2017.

Please note that there are five different kinds of taxes listed on the Internal Revenue Code 1st page, found in Presentment VIII, Subtitles A – E, and only one Procedure and Administration Subtitle, Subtitle F.  How do we know which subsections of Subtitle F relate to the taxes that are administered by the Internal Revenue Service (IRS) and which subsections apply to each of the five different kinds of taxes?

According to the Internal Revenue Service Federal Tax Law begins with the Internal Revenue Code, enacted by Congress in Title 26 of the United States Code.  They also tell us that the Code of Federal Regulations is the official interpretation of the Internal Revenue Code by the U.S. Department of the Treasury.   If we want to inquire about the meaning or the true intent of a section of the IRC, we must turn to the Code of Federal Regulations (CFR) that gives the true intent of that section.  If we need to know which bureau of the Department of the Treasury has authority to enforce that particular section, we must turn to the CFR.

If we want to know what sections of the IRC the Internal Revenue Service administers, we must also turn to the CFR.  In CFR 26, 601.101 (b) we find these words, “The regulations relating to the taxes administered by the Service (IRS) are contained in title 26 of the Code of Federal Regulations.”

In other words, if the IRS has authority to administer a code section, its regulation will be found in Title 26 of the Code of Federal Regulations.  We can say the same thing in another way – If the IRS gives a section of the IRC as their authority to take action and its regulation is not found in Title 26, CFR, it is attempting to take action that it has no authority to take.

Please find below Sections of the IRC that the IRS gives as their authority to take actions in the process of collecting Income Taxes from the citizens of the States in the Union.

I am listing the IRC Section, Description and CFR Title giving the regulations for that Section of the IRC.  Please check the Table of Parallel Authorities in Presentment VIII to verify the following.

IRC, 26, 6151                      Time and Place for Paying                      CFR Title 27

IRC, 26, 6201                      Assessment Authority                               CFR Title 27

IRC, 26, 6301                      Collection Authority                                  CFR Title 27

IRC, 26, 6331                      Levy and Distraint                                      CFR Title 27

IRC, 26, 6601                      Interest                                                         CFR Title 27

IRC, 26, 6651                      Failure to File Return or Pay Tax            CFR Title 27

IRC, 26, 6671                      Penalties                                                       CFR Title 27

As you can see, the sections of the IRC that the IRS gives as its authority to take the collection actions against the citizens of the States in the Union are not found in CFR Title 26.

To understand the true meaning of the IRC sections listed above we must read the Sections of CFR Title 27 that relate to that IRC Section.  You will see that they do not apply to the citizens of the Stats unless they are dealing in Alcohol, Tobacco or Firearms.

Everything you need to know to verify this presentment of information is listed on this site in Presentment VIII.

If you have trouble understanding this presentment of information, post your concerns on the “Comment” section.

Be Blessed

Presentment VII – Why should the State Governments Address the Unconstitutional Federal Income Taxation of Their Citizens Earnings?

In order to answer this question we will review the history and purpose of the Sixteenth Amendment.

The Internal Revenue Service tells us that the U. S. Congress passed the Income Tax Act of 1894 but the Supreme Court ruled it Unconstitutional in 1895.  They also make mention that the Sixteenth Amendment was ratified in 1913 and provided for an income tax to be collected.  They did not give any details about the proceedings leading up to its ratification nor did they give us the definition of the Term “Income”.  The true understanding of the meaning of “income” will go a long way in helping us to understand the true meaning the Sixteenth Amendment.

Following a Joint Resolution of the House of Representatives and the Senate of the United States, the Congressional Research Service (CRS) analyzed and interpreted all of the U. S. Supreme Court cases regarding the Sixteenth Amendment to the Constitution for the United States of America.

According to the CRS “the ratification of the Sixteenth Amendment was the direct consequence of the Court’s 1895 decision in Pollock v. Farmers’ Loan & Trust Co. holding unconstitutional Congress’s attempt of the previous year to tax incomes uniformly throughout the United States. A tax on incomes derived from property, the Court declared, was a “direct tax,” which Congress, under the terms of Article I, § 2, and § 9, could impose only by the rule of apportionment according to population.”                        The Internal Revenue Code contains no provisions for an apportionment among the States.

After  a series of decisions the Supreme Court found it possible to allow an excise (indirect) tax on the privilege of doing business in corporate form with the amount of the tax being based on the amount of corporate income received from that corporate activity, no matter what the source of the income may be.  Congress has always had the power to lay excise taxes from the beginning.

The CRS concludes its interpretation with these words, “The Sixteenth Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged . . . .”

As we can see, the Sixteenth Amendment did not give Congress any new taxing power. The Income Tax is a tax on the privilege of doing business in corporate form.  What it did do was that it prevented Congress from taxing income derived from property because of ownership.  Our earnings are our property and can not be taxed!

Regarding the definition of the term “income”, building upon definitions formulated in cases that gave the meaning of or the interpretation of the Corporation Tax Act of 1909, the Court initially described income as the “gain derived from capital, from labor, or from both combined,” inclusive of the “profit gained through a sale or conversion of capital assets” by corporations.

To address the question of why should the State governments step in and prevent the unconstitutional taxing of their citizens earnings, we must take a look at the U. S. Supreme Court case McCulloch v. Maryland.

In this case the State of Maryland wanted to tax United States chartered banks doing business in Maryland.  The United States objected and it went to the Supreme Court.  In order to settle the dispute the Court had to define the taxing power of both the United States and the States.

In addressing the different aspects of the taxing power of Congress the judge goes on to say that “..an indefinite power of taxation in the Government of the Union might, and probably would, in time, deprive the Governments of the States of the means of providing for their own necessities, and would subject them entirely to the mercy of the National Legislature.”

Has that happened in any of the States in the Union?  Is there any of them that doesn’t rely on the federal government to make ends meet?

The Judge goes on to say “The people of all the States have created the General Government, and have conferred upon it the general power of taxation.  The people of all the States, and the States themselves are represented in Congress, and, by their representatives, exercise this power.  When they tax the chartered institutions of the States, they tax their constituents, and these taxes must be uniform.”

In plain simple terms, when the Federal Government taxes the corporations of a State, it taxes its citizens indirectly.

Let us examine these words of the Court.

“..an indefinite power of taxation in the Government of the Union might , and probably would, in time, deprive the Governments of the States of the means of providing for their own necessities, and would subject them entirely to the mercy of the National Legislature.”

How does the unconstitutional taxing of State citizens’ earnings effect the revenue of the States and deprive the States of the means of providing for their own necessities?  If all the money that now goes to Washington in the form of Income Taxes on individuals earnings stayed in the States where it comes from where would it be spent?  No doubt it would be spent in that State.

How mush revenue would that extra money circulating within the States generate for the States in sales taxes and other taxes that would receive a boost from extra money in circulation?  I can answer that for you.  It would generate enough so that the States would not have to go begging for money from the federal government to make ends meet.

That, my friends, is why the State governments must stand up and put an end to the unconstitutional taxing of our earnings.  It would multiply the buying power for the consumers by billions and free the States from the general government’s overreach.

Be Blessed!