Admiralty
"The technical niceties of the common law are not regarded. .
. .", 1 R.C.L. § 31, p. 422. "A jury does not figure, ordinarily,
in the trial of an admiralty suit. . . the verdict of the jury
merely advisory, and may be disregarded by the court." 1 R.C.L.
§40, p. 432. "[The] rules of practice may be altered whenever found
to be inconvenient or likely to embarrass the business of the
court." 1 R.C.L. §32, p. 423. "A court of admiralty. . . acts upon
equitable principles." 1 R.C.L. §17, p. 416.
"A libel of information [accusation] does not require all the
technical precision of an indictment at common law. If the
allegations describe the offense, it is all that is necessary; and
if it is founded upon a statute, it is sufficient if it pursues the
words of the law." The Emily v. The Caroline, 9 Wheat. 381
(Insertion added).
"I concur with my brethren in sustaining the decree below, but
cannot consent to place my decision upon the ground on which they
have placed theirs. I think it high time to check this silent and
stealing progress of the admiralty in acquiring jurisdiction to
which it has no pretensions. Unfounded doctrines ought at once to
be met and put down; and dicta, as well as decisions, that cannot
bear examination ought not to be evaded and permitted to remain on
the books to be commented upon and acquiesced in by courts of
justice, or to be read and respected by those whose opinions are to
be formed upon books. It affords facilities for giving an undue
bias to public opinion, and, I will add, of interpolating doctrines
which belong not to the law.
"I have now said a great deal on this subject, and I could not
have said less, and discharged the duty which I feel I owe to the
community. I am fortifying a weak point in the wall of the
Constitution. Every advance of the admiralty is a victory over the
common law; a conquest gained upon the trial by jury. The
principles upon which alone this suit could have been maintained
are equally applicable to one-half the commercial contracts between
citizen and citizen. Once establish the rights here claimed, and it
may bring back with all the admiralty usurpations of the fifteenth
century. In England there exists a controlling power, but here
there is none. Congress has, indeed, given a power to issue
prohibitions to a district court, when transcending the limits of
the admiralty jurisdiction. But who is to issue a prohibition to
us, if we should ever be affected with a partiality for that
jurisdiction?
"I therefore hold that we are under a peculiar obligation to
restrain the admiralty jurisdiction within it proper limits.
". . . (t)hat in case of contracts it has no jurisdiction at
all in personam, except as incident to the exercise of its
jurisdiction in rem." J. Johnson, concurring remarks in Ramsay v.
Allegre (1827), 12 W. 611, 614.
"(B)y attempting to introduce the admiralty jurisdiction of
the civil law,. . . a foundation is laid for interminable conflicts
of jurisdiction between the courts of the state and the Union.
"It is vain to contend that the 7th Amendment will be any
efficient guarantee for the right, in suits at common law, if an
admiralty jurisdiction exists in the United States commensurate
with what is claimed by the claimant in this case. Its assertion
is, in my opinion, a renewal of the contrast between legislative
power and royal prerogative, the common and the civil law striving
for mastery; the one to secure, the other to take away, the trial
by jury, judicial power must first annul the 7th Amendment or
judicial subtlety transform a suit at common law into a case of
admiralty and maritime jurisdiction, before I take cognizance of
such a case as this without a jury."
Bains v. The Schooner James & Catherine (1832), 2 Fed. 410, pp.
565-566.
"(A)nd I have Craddock's case, and Leigh and Burleigh's case,
in which the court of Admiralty was expressly prohibited from
proceeding in personam, in behalf of material-men. I should think
here I have a right to demand, if from the whole library of law
books, and God knows that we have enough of them already, "camel
loads", a single attempt to proceed in personam, upon a contract in
the admiralty, except for seaman's wages, since the date of the
resolutions of 1682, can be extracted. Adjudged cases cannot be
found, because, since the antique cases to which I have referred,
the right has been abandoned. Dicta enough can be produced, and
some of those very modern.
"Godbolt speaks of the process in rem, as the only process
issuable in the first instance from the admiralty.
"In the addition of Abbott which I have quoted, in a note upon
the case of Hoar v. Clement, p. 136, case arising on a contract for
necessities, it is admitted, "that the court of admiralty had no
jurisdiction over the person in that case."
"In Keble's Reports, p. 500, quoted by Brown, it is expressly
said, "that without a stipulation, the admiralty has no
jurisdiction at all over the person." (p. 629).
"Let the cases be searched from the remotest period down to
the time of Menetone v. Gibbons, 3 T. R. 267, and the ground of
prohibition, and of recovery, under the 2nd of Henry IV, will be
found to be the competency of the common law to enforce the
contract. This is the principle by which even their jurisdiction in
rem is controlled, and hence it follows that in no case in which
they are prohibited from proceeding in rem can they have the action
in personam." Ramsay v. Allegre (1827), 12 W. 611.
"What boots it, that I am protected by that Constitution from
having the obligations of my contracts violated, if the legislative
power can create a contract for me, or render binding upon a
contract which was null and void in its creation? To give efficacy
to void contract is not, it is true, violating a contracting, but
it is doing infinitely worse; it is advancing to the very extreme
of that class of arbitrary and despotic acts which bear upon
individual rights and liabilities, and against the whole of which
the Constitution most clearly intended to interpose a projection
commensurate with the evil." Satterlee v. Mathewson, 2 P. 380,
414, 415, J. Johnson dissenting.
"The jurisdiction of the admiralty depends, or ought to
depend, as to contracts upon the subject matter, i. e., whether
maritime or not;. . . " DeLovio v. Boit, 2 Gall. 398, Fed Cas. No.
3,776.
Commerce
Defined
"'Commerce' in the sense in which the word is used in the
constitution is co-extensive in its meaning with 'intercourse.'"
Carson River Lumbering Co. v. Patterson (1867), 33 C. 334.
"Term 'commerce' as employed in U.S. Const. Art. I §8, is not
limited to exchange of commodities only, but includes, as well,
'intercourse' with foreign nations, and between states; and term
'intercourse' includes transportation of passengers." People v.
Raymond (1868), 34 C. 492.
"Commerce includes intercourse, navigation, and not traffic
alone." Lord v. Goodall, Nelson & Perkins S. S. Co. (1881), 102
U.S. 541, 26 L.Ed. 224.
Regulation
"Whole doctrine of Brown v. State of Maryland, has been
doubted, and the right of states to regulate their own internal
commerce, and to tax every species of property within their own
jurisdiction -- nay more, concurrent power of states over subject of
commerce, is now firmly established by opinion of majority of
judges of Supreme Court of United States." People v. Coleman
(1854), 4 C. 46, 60 Am.D. 581, overruled on another point by People
v. McCreery (1868), 34 C. 432.
"By well-settled rules of construction, right of state to
regulate comerce is concurrent with that of Congress, with
understanding always, that all state regulations, inconsistent with
those of the federal government on this subject, must give way. -- "
People v. Coleman (1854), 4 C. 46, 60 Am.D. 581, overruled on
another point by People v. McCreery (1868), 34 C. 432.
"Federal Constitution has vested in general government power
to regulate commerce in all its branches; and this power extends to
every species of commercial intercourse, and may be exercised upon
persons as well as property." Lin Sing v. Washburn (1862), 20 C.
534.
"When Congress, in exercise of its constitutional right, has
by its legislation established regulations of commerce with foreign
nations, and among several states, its authority is paramount and
exclusive, and its enactments supersede all state legislation on
those subjects. Whether states could constitutionally exercise this
power in absence of congressional legislation is not decided."
People v. Raymond (1868), 34 C. 492.
Common Rights
"Common right" is right which pertains to citizen by the
common law." Million v. Metropolitan Casualty Insurance Co., 172
N. E. 569.
"Common right" comes down as a term of art from the ancient
common law, and refers to the rights that are afforded by the
common law." Coral Gables v. Christopher, 189 A. 147, 150, 109
A.L.R. 474.
"Kent says: "Corporations or bodies politic are the most usual
franchises known in our law." 3 Kent Comm. 459. It is true that the
privileges so granted by the government do not pertain to the
citizens of the state by common right. But what is the "common
right" here referred to? Is it not [common right is] a right which
pertains to the citizens by the common law, the investiture of
which is not to be looked for in any special law whether
established by the Constitution or an act of the Legislature? Coke
says: "De commun adroit -- of common right -- that is, by the common
law, because the common law is the best and most common birthright
that the subject hath for the safeguard and defense not only of his
goods, lands, and revenues, but of his wife and children. * * *
This common law of England is sometimes called 'right', sometimes
`common right', and sometimes `communis justitia'." Spring Valley
Waterworks v. Schottler, 62 C. 69. (Emphasis added.)
CONSTITUTIONAL RIGHT. A [common] right guaranteed to the
citizens by the Constitution and so guaranteed as to prevent
legislative interference therewith. Delaney v. Plunkett, 146 Ga.
547, 91 S. E. 561, L. R. A. 1917D 926, Ann. Cas. 1917E 685."
Black's Law Dictionary, supra, p. 385. (Insertion added.)
Unalienable Rights
"[Unalienable rights] are enumerated rights that individuals,
acting in their own behalf, cannot disregard or destroy."
McCullough v. Brown, 19 S. E. 458, 480, 23 L.R.A. 410.
COMMON COUNTS - Certain general counts, not founded on any
special contract, which are introduced in a declaration, for the
purpose of preventing a defeat of a just right by an accidental
variance in evidence.
"These are, in an action of assumpsit, counts founded on
implied promises to pay money in consideration of a precedent debt,
and have been variously classified. Those usually comprehended
under the term are: --
"1. Indebitatus assumpsit, which alleges a debt founded
upon one of the several causes of action from which the
law implies a promise to pay, and this is made the
consideration for the promise to pay a sum of money
equivalent to such indebtedness. This covers two
distinct classes: --
a. Those termed money counts, because they related
exclusively to money transactions as the basis of the
debt alleged:
(1) Money paid for defendant's use.
(2) Money had and received by defendant for the
plaintiff's use.
(3) Money lent and advanced to defendant.
(4) Interest.
(5) Account stated.
b. Any of the usual states of fact upon the debt may be
founded, the most common being:
(1) Use and occupation.
(2) Board and lodging.
(3) Goods sold and delivered.
(4) Goods bargained and sold.
(5) Work, labor, and services.
(6) Work, labor, and materials.
2. Quantum Meruit.
3. Quantum Valebant."
Bouvier's Law Dictionary (1914), p. 564.
DISPARAGEMENT - (In Old English Law): An injury by union or
comparison with some person or thing of inferior rank or
excellence.
Bouvier's Law Dictionary (1914), p. 887.
"Common counts, though mainly conclusions of law, are not subject
to either general or special demurrer." Smith v. Bentson (1932),
127 C.A.Supp. 789, 15 P.2d 910.
Constitutional Law
"Constitution of this state declares, among inalienable rights
of each citizen, that of acquiring, possessing and protecting
property. This is one of primary objects of government, is
guaranteed by constitution, and cannot be impaired by legislation."
Billings v. Hall (1857), 7 C. 1.
"Right of protecting property, declared inalienable by
constitution, is not mere right to protect it by individual force,
but right to protect it by law of land, and force of body politic."
Billings v. Hall (1857), 7 C. 1.
"Right of transit through each state, with every species of
property known to constitution of United States, and recognized by
that paramount law, is secured by that instrument to each citizen,
and does not depend upon uncertain and changeable ground of mere
comity." In Re Archy (1858), 9 C. 47.
"Traveling is passing from place to place -- act of performing
journey; and traveler is person who travels." In Re Archy (1858),
9 C. 47.
"Right to possess and protect property is not more clearly
protected by constitution, than right to acquire it. Right to
acquire is right to use prpoer means to attain end; and use of such
means, cannot be prohibited by legislature, except peace and safety
of state require it." In Re Newman (1858), 9 C. 502.
"Governmental power only extends to restraining each one in
freedom of his conduct so as to secure perfect protection to all
others from every species of danger to person, health, and
property; that each individual shall be required to use his own as
ot to inflict injury upon his neighbors; and these seem to be all
immunities which can be justly claimed by one portion of of society
from another, under government of constitutional limitation." In
Re Newman (1858), 9 C. 502.
"As general rule men have natural right to do anything which
their inclinations may suggest, if it be not evil in itself, and in
no way impairs the rights of others." In Re Newman (1858), 9 C.
502.
"To say that one may not defend his own property is usurpation
of power by legislature." O'Connell v. Judnich (1925), 71 C.A.386,
235 P. 664.
"Owner has constitutional right to use and enjoyment of his
property." Simpson v. Los Angeles (1935), 4 C.2d 60, 47 P.2d 474.
"Right of property antedates all constitutions. Every person
has right to enjoy his property and improve it according to his own
desires in any way consistent with rights of others." People v.
Holder (1921), 53 C.A. 45, 199 P. 832.
"Right of property is invaded if owner is not at liberty to
contract with others respecting manner in which and terms on which
his property shall be improved." People v. Holder (1921), 53 C.A.
45, 199 P. 832.
"Police power may not be invoked under guise of general
welfare to interfere with sale by individual of his own property
when acquiring and possession of such property is not contrary to
law." People v. Pace (1925), 73 C.A. 548, 559, 238 P. 1089.
"Wherever right to own property is recognized in free
government, practically all other rights become worthless if
government possesses uncontrollable power over property of
citizen." House v. Los Angeles County Flood Control District
(1944), 25 C.2d 384, 153 P.2d 950.
"Constitutional guarantee securing to every person right of
acquiring, possessing, and protecting property refers to right to
possess absolutely and unqualifiedly every species of property
recognized by law and all rights incidental thereto, including
right to dispose of such property in such manner as he pleases."
People v. Davenport (1937), 21 C.A. 292, 69 P.2d 396.
"Constitutional right of acquiring and possessing property
includes right to dispose of such property in such innocent manner
as owner pleases and to sell it for such price as he can obtain."
People v. Davenport (1937), 21 C.A. 292, 69 P.2d 396.
"Clause in constitution guaranteeing right of acquiring
property does not deprive legislature of power of prescribing mode
of acquisition, or of regulating conduct and relations of members
of society in respect to property rights." In Re Andrews (1861),
18 C. 678; In Re Schrader (1867), 33 C. 279.
Court Jurisdiction
"A Justice's Court is an inferior court, and its jurisdiction
must be shown affirmatively by a party relying upon, or claiming
any right under, its judgments." Jolley v. Foltz (1867), C. 321.
"A judgment is absolutely void if it appears that there was a
want of jurisdiction in the court rendering it either of the
subject matter or the person of the defendant." Hahn v. Morse
(1868), C. 391.
"An officer who acts in violation of the Constitution ceases
to represent the government." Brookfield Const. Co. v. Stewart, 284
F.Supp. 94.
"Judges not only can be sued over their official acts, but
could be held liable for injunctive and declaratory relief and
attorney's fees." Lezama v. Justice Court, A025829.
"There is no common law judicial immunity." Pulliam v. Allen,
104S.Ct. 1970; cited in Lezama v. Justice Court, A025829.
"Judge acted in the face of clearly valid statutes or case law
expressly depriving him of (personal) jurisdiction would be
liable." Dykes v. Hosemann, 743 F.2d 1488 (1984).
"In such case the judge has lost his judicial function, has
become a mere private person, and is liable as a trespasser for
damages resulting from his unauthorized acts."
"Judge's honesty of purpose and sincere belief that he was
acting in discharge of his official duty was not available as
defence in action."
"Where there is no jurisdiction there is no judge; the
proceeding is as nothing. Such has been the law from the days of
the Marshalsea, 10 Coke 68; also Bradley v. Fisher, 13 Wall
335,351." Manning v. Ketcham, 58 F.2d 948.
"A distinction must be here observed between excess of
jurisdiction and the clear absence of all jurisdiction over the
subject-matter any authority exercised is a usurped authority and
for the exercise of such authority, when the want of jurisdiction
is known to the judge, no excuse is permissible." Bradley
v.Fisher,13 Wall 335, 351, 352.
"The immunity of judges for acts within their judicial role is
beyond cavil." Pierson v. Ray, 386 U.S. 547 (1957).
"Ignorance of the law does not excuse misconduct in anyone,
least of all in a sworn officer of the law." In re McCowan (1917),
177 C. 93, 170 P. 1100.
"All are presumed to know the law." San Francisco Gas Co. v.
Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912),
163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223
P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107;
San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.
"It is one of the fundamental maxims of the common law that
ignorance of the law excuses no one." Daniels v. Dean (1905), 2
C.A. 421, 84 P. 332.
"Traffic infractions are not a crime." People v. Battle, 50
Cal. App. 3, step 1, Super, 123 Cal. Rptr. 636, 639.
Common Law
"It is not presumed that common law is repealed by statutory
or constitutional provision unless language naturally leads to the
conclusion." Sloan Estate (1935), 7 C.A.2d 319, 46 P.2d 1007.
"Common law is not repealed by a statute by implication or
otherwise if there is not repugnance between it and statute and if
it does not appear that Legislature intended to cover whole
subject." Gray v. Sutherland (1954), 124 C.A.2d 280, 268 P.2d 754.
"Provisions of CC [CVC] respecting subjects to which it
relates are controlling; but where code is silent, common law
governs." Apple Estate (1885), 66 Cal. 432, 6 P. 7.
"Whenever right claimed under the rules of common law is
denied, governed, or controlled by principles administered by
courts of equity, latter will prevail over the former." Willis v.
Wozencraft (1863), 22 Cal. 607.
"There is no common law of United States as
contradistinguished from individual states; and courts of the
United States, instead of administering common law or any
particular system, conform to law of states where they are
situated." People v. Folsom (1855), 5 C. 373.
"Common law constitutes basis of our jurisprudence, and rights
and liabilities must be determined in accordance with its
principles, except so far as they are modified by statute." Van
Maren v. Johnson (1860), 15 C. 308.
"Our statutes are presumed to state common law rule unless
they expressly otherwise declare." Sears v. Majors (1930), 104 Ca.
60, 285 P. 321.
"Common law is still law of this State, except where expressly
modified by statute." Bryan v. Banks (1929), 98 C.A. 748, 277 P.
1075.
"Common law at time state constitution was adopted included
whole body of common law of England as it stood at that time,
influenced by statute." People v. Richardson (1934), 138 C.A..
404, 32 P.2d 433.
"In 1850, legislature made rule of common law "rule of
decision" in this state except where such common law was
"repugnant" or inconsistent with law of this State." Sahlender
Estate (1948), 89 C.A.2d. 329, 339, 201 P.2d 69.
"Jurisprudence of California rests exclusively upon common
law, which was made rule of decision at time of formation of state
government in all cases where not abrogated or modified by
statute." Renton Estate (1892), 3 Cof. 519.
"Common law having been adopted as rule of decision in this
state, it is duty of courts to enforce it, leaving all questions of
its policy for consideration of legislature." Johnson v. Fall
(1856), 6 C. 359, 65 Am.Dec. 518.
"Codes of this state were intended to establish law of state
respecting subjects to which they relate, so that it is only when
code and other statutes are silent that common law governs, under
Pol. C. §4468." Burlingame v. Traeger (1929), 101 C.A. 365, 281 P.
1051.
Contracts
In General
"Party cannot be bound by contract that he has not made or
authorized." Alexander v. Bosworth (1915), 26 C.A. 589, 599, 147
P.607.
"The intention of one party does not make contract." Barrios
& Co. v. Pettigrew (G. V.) Co. (1924), 68 C.A. 139, 228 P. 676.
"The complaint, on its face, must show that the plaintiff has
the better right." Rogers v. Shannon (1877), 52 C. 99.
Statutory Contract
"Statutory is a contract which the statute says shall be
implied from certain facts, and is governed by the ordinary rules
relating to contracts." Foley v. Leisy Brewing Co., 89 N.W. 230,
231, 116 Iowa 176.
Contracts Implied in Law
"A contract "implied in law" is but a duty imposed by law and
treated as a contract for the purposes of a remedy only." G. T.
Fogle & Co. v. United States, 135 F.2d 117, 120.
"Contracts "implied in law" imply a promise to pay, whether or
not any such promise was made or intended." In Re Altmann's Will,
266 N. Y. S. 773, 779, 149 Misc. 115.
"Contract "implied in law" is, however, a term used to cover
a class of obligations, where the law, though the defendant did not
intend to assume an obligation, imposes an obligation upon him,
notwithstanding the absence of intention on his part, and, in many
cases, in spite of his actual dissent. Such contracts...may be
termed quasi-contracts and are not true contracts. They are found
generally;
2. Upon statutory, official, or customary duties...
Bouvier's Law Dictionary (1914), Vol. I, p. 661. Clark on
Contracts, Quasi-Contracts, p. 531.
Quasi-Contracts
"An obligation similar in character to that of a contract, but
which arises not from an agreement of parties but from some
relation with them, or from a voluntary act of one of them."
Bouvier's Law Dictionary, supra, Vol. III, p. 2781.
"Quasi contracts were a well defined class under the civil
law. By the civil code of Louisiana they are defined to be "the
lawful and purely voluntary acts of man, from which there results
any obligation whatever to a third person and sometimes a
reciprocal obligation between parties. In quasi-contracts the
obligation arises not from consent, as in the case of contracts,
but from the law of natural equity." Bouvier's Law Dictionary, id.
"According to Professor Ames (Lect. on Leg. Hist. 160), the
term was not found in the common law, but it has been taken by
writers of the common law from the Roman Law.
* * *
It need only be added here that quasi contracts were in Roman
Law in almost infinite variety, but were divided into five (5)
classes:
1. Gregotirorum gestio, the management of the affairs of
another, without authority..." Bouvier's Law Dictionary, id.
Quasi-Contracts as fictions of law
"Both in Roman and English law there are certain obligations
which were not in truth contractual, but which the law treats as IF
they were. They are contractual in law, but not in fact, being the
subject-matter of a FICTITIOUS extension of the sphere of contract
to cover obligations which do not in reality fall within it."
Salmond, Salmond on Jurisprudence, p. 642 (9th Edition, 1937, Sweet
& Maxwell, Ltd. England).
"Constructive/quasi-contracts are created by statute on the
premise that they are needed as a matter of reason and justice, and
are allowed to be enforced ex contractu." Kraft Foods Co. of Wisc.
v. Commodity Credit Corp.,266 F.2d 254; Hill v. Waxberg, 237 F.2d
936.
"Ex contractu is a form of action under the civil law, whereas
under the commmon law it would arise from actions of case,
trespass, replevin, trover, or detinue. Ex contractu actions are
from the civil law, not the common law, and are enforced by actions
in personam." Indep. School District of White Bear Lake v. City of
White Bear Lake, 292 N.W. 777.
"Constructive/quasi contracts are based solely upon a legal
fiction or fiction of law." Hill v. Waxberg, 237 F.2d 936.
"Since there is no agreement and a remedy is disired, they are
treated as a contract." Stipp v. Doran, 18 F.2d 83, 84.
"Since there is no agreement as in contracts, the obligation
arises from natural equity." Riscarhson v. Permacel Tape Corp.,
244 F.2d 80.
"Constructive/quasi contracts include obligations founded on
statutory duties." Donovan v. Kansas City, 175 S. W. 2d 874; In Re
United Burton Co., 140 F. 495, 502.
"A quasi contractual action presupposes acceptance and
retention of a benefit by one party with full appreciation of the
facts, under circumstances making it inequitable for him to retain
the benefit without payment of its reasonable value." Major-
Blakeney Co. v. Jenkins (1953), 121 C.A.2d 325, 263 P.2d 655, hear
den.; Townsend Pierson, Inc. v. Holly-Coleman Co. (1960), 178
C.A.2d 373, 2 Cal. Rptr. 812.
"Existence of implied contract is usually a question of fact
for trial court." Caron v. Andrew (1955), 133 C.A.2d 412, 284 P.2d
550, hear den.; Bolster (C. F.) Co. v. Boespflug (J. C.)
Construction Co. (1959), 167 C.A.2d 143, 334 P.2d 247, hear den.
"A debt resulting from a normal agreement or contract has
always been the result of a promise to pay, and invoked a remedy in
the form of assumpsit. However, an assumpsit cannot be applied to
actions of debts where there is no agreement unless the court does
so by means of a fiction, because in order to support assumpsit, it
is necessary to allege a promise, and without agreement there is no
promise. Historically, the courts have adopted the fiction of a
promise, and it was declared that a promise was implied in law."
Keener, "Quasi-Contracts", pp. 4-5.
As Convenience for Remedy in Equity
"For the convenience of the remedy, they have been made to
figure as though they sprang from contract, and have appropriated
the form of agreement." Anson, Contracts (8th Ed.), p. 362.
The Supreme Court of California stated that actions founded on
licenses issued by the State and their fees are in form common law
actions of assumpsit upon an implied contract. Welsbach Co. v.
State of California (1929), 206 C. 556.
". . . not only unscientific, and therefore theoretically
wrong, but is also destructive of clear thinking, and therefore
vicious in practice. It needs no argument to establish the
proposition that it is not scientific to treat as one and the same
thing an obligation that exists in every case because of the assent
of the defendant, and an obligation that not only does not depend
in any case upon his assent, but in many cases exists without his
assent." Keener, "Quasi-Contracts", p. 3.
Promises Implied in Law
"A promise implied in law is one in which neither the words
nor the conduct of the party involved are promissory in form, or
justify an inference of a promise. The term is used to indicate
that a party is under a legally enforceable duty, as he would have
been if he had in fact made a promise. Ferrous Products Co. v.
Gulf States Trading Co., 323 S. W. 2d 292.
Benefit and Burden from Contracts
"It is a well settled rule of law that he who seeks benefits
of contract must also assume burdens." Higgins v. Monckton (1938),
28 C.A.2d 723, 83 P.2d 516.
"Voluntary acceptance of benefit of transaction is equivalent
to consent to all obligations arising from it, so far as facts are
known, or ought to be known, to person accepting." Northern
Assurance Co. v. Stout (1911), 16 C.A. 548, 117 P. 617.
"Legislature is without power to affect past contracts, or to
alter or destroy nature or tenure of estates [i. e. the estate of
California]." Dewey v.Lambier, 7 Cal. 347; McKinney's New
California Digest (1961), Constitutional Law § 125, p. 548 and §
134, p. 558.
Performance
"Where performance depends on existence of a given thing
[consideration, benefit] assumed as the basis of the agreement,
performance is excused to extent that thing ceases to existthe fair
import of their terms, without reference to the hardships that may
fall upon the parties. . .If persons voluntarily express themselves
in writing, they must be bound by language employed; law presumes
that they understand import of their own contracts, and have
entered into them with knowledge of their mutual rights." Abbott v.
Gatch, 71 D. 735.
Citizenship
Derived from race and birth
"State Citizenship is a vested substantial property right, and
the State has no power to divest or impair these rights." Favot v.
Kingsbury, (1929) 98 Cal. App. 284, 276 P. 1083.
"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 principle. You
have, in a common cause, fought, and triumphed together; the
independence and liberty you possess, are the work of joint
councils, and joint efforts -- of common dangers, sufferings and
success." George Washington, "Farewell Address", delivered
September 17, 1796. (Emphasis added.)
"A Citizen of one state is a citizen of every state in the
Union." Butler v. Farnsworth, Fed.Cas.No. 2,240 (U.S. 3d Cir., 4
Wash.C.C. 101).
"Admission on an equal footing with the original States, in
all respects whatever, involves equality of constitutional right
and power, which cannot afterwards be controlled, and it also
involves as Citizens of the United States of those whom Congress
makes members of the political community, and who are recognized as
such in the formation of the new State with the consent of
Congress." Boyd v. Thayer (1891), 143 U.S. 143.
"All white persons or persons of European descent who were
born in any of the colonies, or resided or had been adopted there,
before 1776, and had adhered to the cause of Independence up to
July 4, 1776, were by the Declaration [of Independence] invested
with privileges of citizenship." U. S. v. Ritchie, 58 U. S. (17
How.) 525, 539; Ingles v. Sailor's Snug Harbor, 28 U. S. (3 Pet.)
99; Boyd v. Nebraska, 36 L.Ed. 103, 110. (Emphasis and insertions
added.)
"In general, 'Free White Persons,' includes members of the
white or Caucasian race, as distinct from the black, red, yellow,
and brown races." U. S. v. Balsara (1910), 180 F. 694, 695; In re
Najour (1909), 174 F. 735; In re Ellis (1910), 179 F. 1002, 1003;
In re Alverto (1912), 198 F. 688; In re Akhay Kumur Mozumdar
(1913), 207 F. 115. (Emphasis added.)
"The privileges and immunities secured to citizens of each
State by the first clause of the second section of the fourth
article of the Constitution are only those which belong to [free
white de jure State] Citizenship." Conner v. Elliott, 59 U. S. (18
How.) 591. (Insertion added.)
"It becomes necessary, therefore, to determine who were
citizens of the several States when the Constitution was adopted.
And in order to do this, we must recur to the governments and
institutions of the thirteen colonies, when they separated from
Great Britain and formed new sovereignties, and took their places
in the family of independent nations. We must inquire who, at that
time, were recognized as the people or citizens of a state, whose
rights and liberties had been outraged by the English government;
and who declared their independence and assumed the powers of
government to defend their rights by force of arms.
"In the opinion of the court, the legislation and histories of
the times, and the language used in the Declaration of
Independence, show that neither the class of persons who had been
imported as slaves, nor their descendants, whether they had become
free or not, were then acknowledged as a part of the people, nor
intended to be included in the general words used in that memorable
instrument." Dred Scott v. Sanford, supra, p. 407.
"We give both of these laws in the words used by the
respective legislative bodies, because the language in which they
are framed, as well as the provisions contained in them, show, too
plainly to be misunderstood, the degraded condition of this unhappy
race. They were still in force when the revolution began, and are
a faithful index to the state of feeling towards the class of
persons of whom they speak, and of the position they occupied
throughout the thirteen colonies, in the eyes and thoughts of the
men who framed the Declaration of Independence and established the
state constitutions and governments. They show that a perpetual and
impassable barrier was intended to be erected between the white
race and the one which they had reduced to slavery and governed as
subjects with absolute and despotic power, and which they then
looked upon as so far below them in the scale of created beings,
that intermarriages between white persons and Negroes or mulattoes
were regarded as unnatural and immoral, and punished as crimes, not
only to the parties but to the person who joined them in marriage.
And no distinction in this respect was made between the free Negro
or mulatto and the slave, but this stigma, of the deepest
degradation, was fixed upon the whole race.
"We refer to these historical facts for the purpose of showing
the fixed opinions concerning that race, upon which the statesmen
of that day spoke and acted. It is necessary to do this in order to
determine whether the general terms used in the Constitution of the
United States, as to the rights of man and the rights of the
people, (were) intended to include them, or to give to them or
their posterity the benefit of any of its provisions. The language
of the Declaration of Independence is equally conclusive:
"It begins by declaring that, "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 Nature's God entitle them, a decent
respect for the opinions of mankind requires that they should
declare the causes which impel them to the separation."
"It then proceeds to say: "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."
"The general words quoted above would seem to embrace the
whole human family, and if they were used in a similar instrument
at this day would be so understood. But it is too clear for
dispute, that the enslaved African race were not intended to be
included, and formed no part of the people who framed and adopted
the declaration; for if the language, as understood in that day,
would embrace them, the conduct of the distinguished men who framed
the Declaration of Independence would have been utterly and
flagrantly inconsistent with the principles they asserted; and
instead of the sympathy of mankind, to which they so confidently
appealed, they would have deserved and received universal rebuke
and reprobation.
"Yet the men who framed this declaration were great men -- high
in literary acquirements -- high in their sense of honor, and
incapable of asserting principles inconsistent with those on which
they were acting. They perfectly understood the meaning of the
language they used, and how it would be understood by others; and
they knew that it would not in any part of the civilized world be
supposed to embrace the Negro race which, by common consent, had
been excluded from civilized governments and the family of nations,
and doomed to slavery. They spoke and acted according to the then
established doctrines and principles, and in the ordinary language
of the day, and no one misunderstood them. The unhappy black race
were separated from the white by indelible marks, and laws long
before established, and were never thought of or spoken of except
as property, and when the claims of the owner or the profit of a
trader were supposed to need protection.
"This state of public opinion had undergone no change when the
Constitution was adopted, as is equally evident from its provisions
and language." Dred Scott v. Sanford, ibid., pp. 409, 410.
"To all this mass of proof we have still to add that Congress
has repeatedly legislated upon the same construction of the
Constitution that we have given. Three laws, two of which were
passed almost immediately after the government went into operation,
will be abundantly sufficient to show this. The two first are
particularly of notice, because many of the men who assisted in
framing the Constitution, and took no active part in procuring its
adoption, were then in the halls of legislation, and certainly
understood what they meant when they used the words "people of the
United States" and "citizen" in that well considered instrument.
"The first of these acts is the naturalization law, which was
passed at the second session of the first Congress, March 26, 1790,
and confines the right of becoming citizens "to aliens being free
white persons."
". . . But the language of the law above quoted shows that
citizenship at that time was perfectly understood to be confined to
the white race; and they alone constituted the sovereignty in the
government. . . Another of the early laws of which we have spoken
is the first militia law, which was passed in 1792, at the first
session of the second Congress. The language of this law is equally
plain and significant with the one just mentioned. It directs that
every "free able-bodied white male citizen" shall be enrolled in
the militia. . .
"The third act to which we have alluded is even still more
decisive; it was passed as late as 1813. . . and it provides
"(t)hat from and after the termination of the war in which the
United States are now engaged with Great Britain, it shall not be
lawful to employ, on board of any public or private vessels of the
United States, any person or persons except citizens of the United
States, or persons of color, natives of the United States."
"Here the line of distinction is drawn in express words. Persons of
color, in the judgment of Congress, were not included in the word
"citizens", and they are described as another and different class
of persons, and authorized to be employed, if born in the United
States." Dred Scott v. Sanford, supra, pp. 419-421.
"Are free negroes or free colored persons citizens within the
meaning of this [Comity] clause? We think not. In recurring to
the past history of the constitution, and prior to its formation,
to that of the confederation, it will be found that nothing beyond
a kind of quasi-citizenship has ever been recognized in the case of
colored persons. . . .If citizens in a full and constitutional
sense, why were they not permitted to participate in its formation?
They certainly were not. The constitution was the work of the
white race, the government for which it provides and of which it is
the fundamental law, is in their hands and under their control; and
it could not have been intended to place a different race of people
in all things upon terms of equality with themselves. Indeed, if
such had been the desire, its utter impracticability is too evident
to admit of doubt. The two races differing as they do in
complexion, habits, conformation, and intellectual endowments,
could not nor ever will live together upon terms of social or
political equality. A higher than human power has so ordered it,
and a greater than human agency must change the decree. Those who
framed the Constitution were aware of this, and hence their
intention to exclude them as citizens within the meaning of the
clause to which we referred." Pendleton v. State, 6 Ark. 509.
(Emphasis added.)
"There are, nevertheless, inequalities of great moment in the
mind of a legislator, because they have a natural and inevitable
influence in society. Let us enumerate some of them: 1. There is
an inequality of wealth. . . 2. BIRTH. Let no man be surprised
that this species of inequality is introduced here. Let the page
in history be quoted where any nation, ancient or modern, civilized
or savage, is mentioned, among whom no difference was made between
the citizens on account of extraction. The truth is that more
influence is allowed to this advantage in free republics than in
despotic governments, or than would be allowed to it in simple
monarchies, if severe laws had not been made from age to age to
secure it." John Adams, A Defense of the American Constitutions,
1787, from The Political Writings of John Adams, published by
Bobbs-Merrill Co., 1954, p. 134. (Emphasis added.)
"These sources of inequality, which are common to every people
and can never be altered by any because they are founded in the
constitution of nature -- this natural aristocracy among mankind has
been dilated on because it is a fact essential to be considered in
the institution of government. It forms a body of men which
contains the greatest collections of virtues and abilities in a
free government, is the brightest ornament and glory of the nation,
and may always be made the greatest blessing of society if it be
judiciously managed in the constitution. But if this be not done,
it is always the most dangerous; nay, it may be added, it never
fails to be the destruction of the commonwealth [sovereignty]."
John Adams, A Defense of the American Constitutions, from The
Political Writings of John Adams, published by Bobbs-Merrill Co.,
1954, p. 139. (Emphasis and Insertion added.)
"Blacks, whether born free or in bondage, if born under the
jurisdiction and allegiance of the United States, are natives, and
not aliens. They are what the common law terms natural born
subjects. . . . The better opinion, I should think, was that
Negroes or other slaves, born within and under the allegiance of
the United States, are natural born subjects, but not citizens.
Citizens, under our Constitution and laws, mean free inhabitants,
born within the United States or naturalized under the laws of
Congress. . . " James Kent, Commentaries on American Law, 7th
ed., Volume II, pp. 275-278. (Italics added.)
"But birth will not confer these advantages upon a Negro or an
Indian. If so, a man may acquire, by the accident of birth, what
the government itself has no right to grant. No Negro, or
descendant of Negroes, is a citizen of the Union, or any of the
States. They are mere "sojourners in the land", inmates, allowed
usually by tacit consent, sometimes by legislative enactment,
certain specific rights. Their status and that of the citizen is
not the same. Vattel, Book 1, para. 213. But the clause of the
Constitution in question applies to citizens, not to sojourners or
inmates." State v. Clairborne, 1 Meig's Rep. 331, 335.
"It results, then, that the plaintiff cannot have been a
citizen, either of Pennsylvania or of Virginia, unless she belonged
to a class of society upon which, by the institutions of the
states, was conferred a right to enjoy all the privileges and
immunities appertaining to the state. That this was the case there
is no evidence in the record to show, and the presumption is
against it. Free Negroes and mulattoes are, almost everywhere,
considered and treated as a degraded race of people; insomuch so,
that, under the Constitution and laws of the United States, they
cannot become citizens of the United States." Amy v. Smith, 1
Litt. Ky. R. 334.
"Again, according to a well established principle of the
common law, now in force, none but citizens can hold our lands."
Amy v. Smith, supra, p. 339.
"The American colonies brought with them the common, and not
the civil law; and each state, at the revolution, adopted either
more or less of it, and not one of them exploded the principle that
the place of birth conferred citizenship." Ibid., pp. 337, 338.
"Hence I conclude that every white person at least, born
within the United States, whether male or female, is, by birth, a
citizen within the meaning of our Constitution, and as such has
rights secured by it. . ." Ibid., p. 341.
Attorney-General of the United States, one William Wurtz, in an
opinion dated November 7, 1821:
I presume that the description, "citizen of the
United States", used in the Constitution, has the same
meaning that it has in the several acts of Congress
passed under the authority of the Constitution; otherwise
there will arise a vagueness and uncertainty in our laws
which will make their execution, if not impracticable, at
least extremely difficult and dangerous.
Looking to the Constitution as the standard of
meaning, it seems very manifest that no person is
included in the description of "citizen of the United
States" who has not the full rights of a citizen in the
state of his residence. Among other proofs of this, it
will be sufficient to advert to the constitutional
provision that "the citizens of each state shall be
entitled to all the privileges and immunities of citizens
in the several states".
Now, if a person born and residing in Virginia but
possessing none of the high characteristic privileges of
a citizen of the state is nevertheless a citizen of
Virginia in the sense of the Constitution, then, on his
removal into another state, he acquires all the
immunities and privileges of a citizen of that other
state, although he possessed none of them in the state of
his nativity; a consequence which certainly could not
have been in the contemplation of the Convention.
Again: the only qualification required by the
Constitution to render a person eligible as President,
Senator, or Representative of the United States is that
he shall be a "citizen of the United States" of a given
age and residence. Free Negroes and mulattoes can satisfy
the requisites of age and residence as well as the white
man; and if nativity, residence, and allegiance combined
(without the rights and privileges of a white man) are
sufficient to make him a "citizen of the United States"
in the same sense of the Constitution, then free Negroes
and mulattoes are eligible to those high offices, and may
command the purse and the sword of the nation.
For these and other reasons, which might easily be
multiplied, I am of the opinion that the Constitution, by
the description of "citizens of the United States",
intended those only who enjoyed the full and equal
privileges of white citizens in the state of their
residence. If this be correct, and if I am right also in
the other position -- that we must affix the same sense to
this description when found in an act of Congress, as it
manifestly has in the Constitution -- then free people of
color in Virginia are not citizens of the United States
in the sense of our shipping laws, or any other laws,
passed under the authority of the Federal Constitution;
for such people have very few of the privileges of the
citizens of Virginia.
1. They can vote at no election, although they
might be freeholders.
2. They are incapable of any office of trust or
profit, civil or military.
3. They are not competent witnesses against a white
man in any case, civil or criminal.
4. They are not enrolled in the militia, are
incapable of bearing arms, and are forbidden even
to have in their possession military weapons, under
the penalties of forfeiture and whipping.
5. They are subject to severe corporal punishment
for raising their hand against a white man, except
in defense of a wanton assault.
6. They are incapable of contracting marriage with
a white woman, and the attempt is severely
punished.
These are some of the incapacities which
distinguished them from the white citizens of Virginia;
but they are, I think, amply sufficient to show that such
persons could not have been intended to be embraced by
the description "citizens of the United States" in the
sense of the Constitution and acts of Congress.
The allegiance which the free man of color owes to
the State of Virginia is no evidence of citizenship; for
he owes it not in consequence of any oath of allegiance.
He is not required or permitted to take any such oath;
the allegiance which he owes is that which a sojourning
stranger owes -- the mere consequence and return for the
protection which he receives from the laws. . . .
Opinions of the Attorneys General, Volume 1, pp. 506-508.
(Emphasis added.)
"But as the laws of the United States do not now authorize any
but a white person to become a citizen, it marks the national
sentiment upon the subject and creates a presumption that no state
had made persons of color citizens. . . .And as it respects
Virginia, we know that free people of color have never been
considered, or treated, either in the practice of the country or by
the laws of the state, as possessing the rights and privileges of
citizens." Amy v. Smith, supra, p. 334. (Emphasis added.)
"Prior to the adoption of the Constitution of the United
States, each state had a right to make citizens of any persons they
pleased; but as the Federal Constitution does not authorize any but
white persons to become citizens of the United States, it furnishes
a presumption that none other were then citizens of any state;
which presumption will stand until repealed by positive testimony."
id. (Emphasis added.)
"That all men are born to equal rights is true. Every being
has a right to his own, as clear, as moral, as sacred as any other
being has. . . . But to teach that all men are born with equal
powers and faculties, to equal property and advantages through
life, is as gross a fraud, as glaring an imposition on the
credulity of the people as ever was practiced by monks, by Druids,
by Brahmins, by priests of the immortal Lama, or the self-styled
philosophers of the late French Revolution. For Honor's sake, . .
. , for truth and virtue's sake, let American philosophers and
politicians despise it." John Adams, in a letter to a Mr. John
Taylor, April 15, 1814 from The Political Writings of John Adams,
published by Bobbs-Merrill Co., 1954, p. 201. (Emphasis added.)
U. S. Senator Robert H. Toombs of Georgia in Boston in 1856, as to
the inevitable consequences of trespassing on the preamble and
altering the posterity of "free white":
"Therefore, so far from being a necessary and proper
means of executing a granted powers, it is an arbitrary
and despotic usurpation against the letter, the spirit,
and the declared purposes of the Constitution; for its
exercise neither "promote(s) the general welfare", nor
"secure(s) the blessings of liberty to ourselves and to
our posterity", but, on the contrary, puts in jeopardy
all these inestimable blessings. It loosens the bonds of
Union, seeks to establish injustice, disturbs the
domestic tranquility, weakens the common defense, and
endangers the general welfare by sowing hatreds and
discords among our people, and puts in eminent peril the
liberties of the white race, by whom and for whom the
Constitution was made. . . "
Stephens, A Constitutional View of the Late War between
the States, National Publ., Vol. I, p. 632.
Constitutions -- State and Federal
It is settled by numerous decisions that the intent of the lawmaker
is the law. Runyon v. Smith, 308 Ky. 73, 212 S. W. 2d 521;
Rasmussen v. Barker, 7 Wyo. 117, 50 P 819; U. S. v. Freeman, 3 How.
556; U. S. v. Babbit, 1 Black 61; Stewart v. Kahn, 2 Wall. 493.
INTENT. One's mental attitude, including purpose, will
determination, etc., at the time of doing an act. Webster's New
World Dictionary, 2nd College Ed., 1970. (Emphasis added.)
ORGANIC LAW. The fundamental law, or constitution of a system
of laws or principles which defines and establishes the
organization of its government. St. Louis v. Dorr, 145 Mo. 466, 46
S. W. 976, 42 L. R. A. 686, 68 Am. St. Rep. 575. Black's Law
Dictionary, 4th edition (1968), West Publishing Co., p. 1251.
"The authority of the organic law is universally acknowledged;
it speaks the sovereign will of the people; its injunction
regarding the process of legislation is as authoritative as are
those touching the substance of it." Suth. Stat. Const., p. 44,
note 1.
"The constitution of a state is the fundamental law of the
State." Ware v. Hylton, 3 Dall. 199.
"What is a constitution? It is the form of government,
delineated by the mighty hand of the people, in which certain first
principles of fundamental laws are established." Van Horne v.
Dorrance, 2 Dall. 304. (Italics added.)
"Constitutional provisions and amendments to the Constitution
relate to the fundamental law and certain fixed principles upon
which governments are founded. Constitutions are commonly called
the organic law of a State." State ex rel. Halliburton v. Roach,
230 Mo. 408, 130 S. W. 689.
"A constitution is designated as a supreme enactment, a
fundamental act of legislation by the people of the state. A
constitution is legislation direct from the people acting in their
sovereign capacity, while a statute is legislation from their
representatives, subject to limitations prescribed by the superior
authority." Ellingham v. Dye, 231 U. S. 250. (Italics added.)
"The basic purpose of a written constitution has a two-fold
aspect, first securing [not granting] to the people of certain
unchangeable rights and remedies, and second, the curtailment of
unrestricted governmental activity within certain defined spheres."
Du Pont v. Du Pont, 85 A 724. (Emphasis and Insertion added.)
"The constitution of a state is stable and permanent, not to
be worked upon the temper of the times, not to rise and fall with
the tide of events. Notwithstanding the competition of opposing
interests, and the violence of contending parties, it remains firm
and immoveable, as a mountain amidst the strife and storms, or a
rock in the ocean amidst the raging of the waves." Vanhorne v.
Dorrance, supra.
Construction of Constitutions
"In ascertaining the meaning of the terms of the Constitution,
recurrence may be had to the principles of the common law." United
States v. Brody, 3 Cr. Law Mag. 69.
"The terms of a constitutional amendment are not controlling
in giving construction to the provisions of the Constitution as
they originally stood." Norton v. Bradham (1884), 21 S. C. 375.
"We are bound to interpret the Constitution in the light of
the law as it existed at the time it was adopted." Mattox v.
United States, 156 U. S. 237, 243.
"In this, as in other respects, it (a constitutional
provision) must be interpreted in the light of the common law, the
principles of history of which were familiarly known to the framers
of the Constitution. Minor v. Happersett, 12 Wall. 162. . . .The
language of the Constitution, as had been well said, could not be
understood without reference to the common law. 1 Kent Comm. 336.
. . . " Kepner v. United States, 195 U. S. 100, 126.
"(I)n the construction of these instruments the following
rules are actually observed:
1. The practical construction must be uniform. A
constitution does not mean one thing at one time
and another at some subsequent time.
2. The object of construction is to give effect to
the intent of the people in establishing the
Constitution; it is the intent of the law giver
that is to be enforced. But the intent is to be
found in the instrument itself. . . .
Cooley, The General Principles of Constitutional Law, 3rd. ed.
(1898), pp. 386-387. (Little & Brown Co.).
"The term 'citizen' was used in the Constitution as a word,
the meaning of which was already established and well understood.
And the Constitution itself contains a direct recognition of the
subsisting common-law principle, in the section which defines the
qualifications of the President: `No person except a natural born
Citizen, or a Citizen of the United States at the time of the
adoption of this Constitution, shall be eligible to the office of
the President,' etc . . . . The only standard which existed of a
natural born Citizen was the rule of the common law, and no
different standard has been adopted since." Lynch v. Clarke
(1844), 1 Sandf. Ch. (N.Y.) 656.
ESTABLISH. 1. To set and fix firmly or unalterably; to settle
permanently. "I will establish my covenant with him for an
everlasting covenant." Gen. xvii. 2. To found permanently; to erect
and fix or settle; as to establish a colony or empire. 3. To enact
or decree by authority and for permanence. . . 4. To settle or
fix; to confirm. . . 5. To make firm; to confirm; to ratify what
has been previously set or made. "Do we then make void the law
through faith? God forbid: yea, we establish the law." Rom. iii.
American Dictionary of the English Language (1828), Noah Webster.
(Reprinted by the Foundation for American Christian Education,
1967)
ESTABLISH. This word occurs frequently in the Constitution of
the United States, and it is there used in different meanings: (1)
to settle firmly, to fix unalterably; as to establish Justice,
which is the avowed object of the Constitution. . . .To settle or
fix firmly; place on a permanent footing; found; create; put beyond
doubt or dispute; prove; convince. . . . Black's Law Dictionary,
supra, p. 642.
ESTABLISH. 1. to make stable; make firm; settle [to establish
a habit] 2. to order, ordain, or enact (a law, statute, etc. . . )
3. to set up (a government, nation, business, etc. . . ). Webster's
New World Dictionary of the American Language, 2nd College Edition,
World Publishing Co., 1970.
"The term 'Citizen of the United States' must be understood to
mean those who were citizens of the State as such after the Union
had commenced and the several States had assumed their sovereignty.
Before that period there were no citizens of the United States."
Inhabitants of Manchester v. Inhabitants of Boston, 16 Mass. 230,
235.
"The perpetuity and indissolubility of the Union by no means
implies the loss of distinct and individual existence, of of the
right of self-government by the States. Under the Articles of
Confederation each State retained its sovereignty, freedom, and
independence, and every power, jurisdiction, and right not
expressly delegated to the United States. Under the Constitution,
though the powers of the States were much restricted, still, all
powers not delegated to the United States, nor prohibited to the
States, are reserved to the States respectively, or to the people
. . . . Not only, therefore, can their be no loss of separate and
independent autonomy to the States, through their union under the
Constitution, but it may be not unreasonably said that the
preservation of the States, and the maintenance of their
governments, are as much within the design and care of the
Constitution as the preservation of the Union and the maintenance
of the national government. The Constitution, in all its
provisions, looks to an indestructible Union, composed of
indestructible States." Texas v. White (1868), 7 Wall. (U.S.) 700.
14th Amendment citizenship Distinguished from State Citizenship
"The United States and the State of California are two
separate sovereignties, each dominant in its own sphere." Redding
v. Los Angeles (1947), 81 C.A.2d 888, 185 P.2d 430.
". . . there is a clear distinction between national and State
citizenship. U. S. citizenship does not entitle citizen [small
"c"] of the Privileges and Immunities of the Citizen of the State
[capital "C"]." K. Tashiro v. Jordan (1927), 256 P. 545, 201 Cal.
239, 53 A.L.R. 1279, affirmed 49 S. Ct. 47, 278 U. S. 123, 73 L.Ed.
214, 14 C. J. S. § 2, p. 1131, note 75.
"A person may be a citizen of the United States, and not a
citizen of any particular state. This is the condition of citizens
residing in the District of Columbia and in the territories of the
United States or who have taken up a residence abroad." Prentiss
v. Brennan (1845?), Fed.Cas.No. 11,385, 2 Blatchf. 162. Areas
identified by ZIP codes are territories of the U.S.
"The government of the United States is a foreign corporation
with respect to a state." In re Merriam, 36 N. E. 505, 141 N. Y.
479, affirmed 16 S. Ct. 1073, 163 U. S. 625, 41 L.Ed. 287.
"Under constitutional amendment 14, United States citizenship
is paramount and dominant, and not subordinate and derivative from
State Citizenship." Aroer v. United States, 245 U. S. 366, 38 S.
Ct. 159, 62 L.Ed. 349.
"A citizen of the United States is ipso facto and at the same
time a citizen of the state in which he resides. While the 14th
Amendment does not create a national citizenship, it has the effect
of making that citizenship 'paramount and dominant' instead of
'derivative and dependent' upon state citizenship." Colgate v.
Harvey, 296 U. S. 404, 427.
"Aliens are commonly understood as persons who owe allegiance
to a foreign government." De Cano v. State, 110 P.2d 627, 631 and
the 1943 Government Code §242 (from Political Code §57).
"Citizens of the District of Columbia are not Citizens of a
state." Behlert v. James Foundation of N. Y., 60 F.Supp. 706, 708.
"A corporation aggregate is not considered as a [de jure
State] citizen or entitled to the privileges of [de jure State]
citizenship, except for the purpose of giving jurisdiction, for
which a corporation may be considered a citizen of the State by
which it is incorporated." Bank of United States v. Deveaux
(1809), 5 Cranch (9 U. S.) 61; Ducat v. City of Chicago (1870), 10
Wall. 410, 19 L.Ed. 972. (Insertion added.)
"Corporations are not [de jure State] Citizens under Article
IV section 2 of the Constitution of the United States." Paul v.
Virginia (1868), 8 Wall. 168, 19 L.Ed. 357.
"Upon that ground, appeals to this court to extend the clause
beyond the limitation have been uniformly rejected, and even those
basic privileges and immunities secured against federal
infringement by the first eight amendments have been uniformly been
held not to be protected from state actions by the privileges and
immunities clause. . . .The reason for this narrow construction of
clause and the consistently exhibited reluctance of this court to
enlarge its scope has been well understood since the decision of
the Slaughter House Cases. If its restraint upon state action were
to be extended more than is needful to protect relationships
between the citizen and the national government, and if it were to
be deemed to extend to those fundamental rights of person and
property attached to citizenship by the common law and enactments
of the states when the amendment was adopted, such as were
described in Corfield v. Coryell, supra, it would enlarge
Congressional and judicial control of state action and multiply
restrictions upon it whose nature, thought difficult to anticipate
with precision, would be of sufficient gravity to cause serious
apprehension for the rightful independence of local government.
That was the issue fought out in the Slaughter House Cases, with
the decision against enlargement. Ibid., pp. 520-521, note 1.
"The observation of the court in United States v. Cruikshank, 92 U.
S. 542, 551, that the right of assembly was not secured against
state action by the Constitution, must be attributed to the
decision in the Slaughter House Cases that only privileges and
immunities peculiar to United States citizenship were secured by
the privileges and immunities clause, and to the further fact that
at that time it had not been decided that the right was one
protected by the due process clause. Ibid., p. 526.
"But the court added that with respect to the 14th Amendment
"there are certain privileges and immunities which belong to a
citizen of the United States as such; otherwise it would be
nonsense for the 14th Amendment to prohibit a state from abridging
them. . . .We agree. . . that there are privileges and immunities
belonging to citizens of the United States, and that it is these
and these alone which a state is forbidden to abridge." The
governments of the United States and of the each of the several
states are distinct from one another. The rights of a citizen under
one may be quite different from those which he has under the
other." Colgate v. Harvey, 296 U. S. 404, 429.
"The privileges and immunities of citizens of the United
States, which are protected by the 14th Amendment, against
abridgement by the states, are those which arise out of the
essential nature and characteristics of the national government,
the federal Constitution, treaties, or acts of Congress, as
distinguished from those belonging to the Citizens of a state;. .
. . " Gardner v. Ray, 157 S. W. 1147, 1150; Hammer v. State, 89 N.
E. 850, 851, 173 Ind. 199, 24 L. R. A., N. S., 795, 140 Am. St.
Rep. 248, 21 Ann. Cas. 1034. (Emphasis added.)
"This part of the opinion, then, concludes with the holding
that the rights relied upon in the case are those which belong to
the citizens of the states as such and are under the sole care and
protection of the state governments. The conclusion is preceded by
the important declaration that the civil rights theretofore
appertaining to citizenship of the states, were not given the
security of national protection by this class of the 14th
Amendment. " Twining v. New Jersey, supra, p. 94.
"States may enforce constitutional right, but not impair it."
In Re Perkins (1852), 2 Cal. 424.
"The provisions of the Constitution are intended effectually
and completely to protect substantial rights, and can not be
frittered away by indirect legislation." Lux v. Haggin, (1886) 69
Cal. 256, 4 Pac. 919, 10 Pac. 674
Demurrers
"To sustain a demurrer for want of jurisdiction, the defect
must appear on the face of the accusatory pleading." People v.
Tolbert (1986, 3d. District), 176 Cal. App. 3d. 685, 222 Cal. Rptr.
313.
"The erroneous overruling of a non-statutory demurrer by a
trial court is possible, and can result in reversal of the judgment
of conviction on appeal. Thus, a non-statutory, common law
demurrer exists as a vehicle for constitutional and other attacks
on the sufficiency of an accusatory pleading." People v. Jackson
(1985, 1st District), 171 Cal. App. 3d. 609, 217 Cal. Rptr. 540.
"156. Where an issue in law is tendered by demurrer the
opposing party must join in it.
The tender of an issue of law must always be accepted.
[Citations.] A party cannot decline a question on the legal
sufficiency of his own pleading without abandoning it [his
pleading]. The acceptance is therefore as imperative as in the
case of an issue of fact. . . . With respect to issues in law
tendered by a demurrer, it is immaterial whether the demurrer be in
proper form or not. In either case the opposite party is equally
bound to join in demurrer; for it is a rule that there can be no
demurrer upon a demurrer [citations], and there is no ground for a
traverse or pleading in confession or avoidance, while the pleading
to which the demurrer is taken is still unanswered." Common Law
Pleading Hornbook Series (1923), Benjamin J. Shipman, pp. 288-289.
"151. A demurrer admits, for the purpose of the decision on
the demurrer, and for that purpose only, all matters of fact that
are well pleaded. It does not admit matters of fact that are not
well pleaded, nor does it admit allegations of conclusions of law
or of fact." Common Law Pleading Hornbook Series (1923), Benjamin
J. Shipman, p. 282.
"A demurrer only admits the facts that are well pleaded. It
does not admit conclusions, either of law or of fact, which the
adverse party may have seen fit to draw in his pleading
[citations]. Nor will it admit an averment contrary to what before
appears certain on the record [citations], or an averment which the
pleader was estopped to make [citations]; nor an averment which the
court can judicially know to be impossible or untrue [citations];
nor an immaterial averment [citations]." Common Law Pleading
Hornbook Series (1923), Benjamin J. Shipman, p. 282-283.
"A demurrer does not admit as true facts which are alleged as
conclusions of law, evidence, matters of opinion, or surplusage."
Carpenter v. Hamilton (1943) 59 C.A.2d 146, 138 P.2d 353, 59 C.A.2d
149, 138 P.2d 149.
"A demurrer admits allegations of fact but not conclusions of
the pleader." Cedars of Lebanon Hospital v. Los Angeles County
(1949) 206 P.2d 915, subsequent opinion 35 C.2d 729, 221 P.2d 31,
15 A.L.R.2d 1045.
"The presence of a pleader's conclusion does not strengthen
the pleading when attacked by demurrer." Lyon v. Carpenter's Hall
Ass'n. of San Francisco (1924), 66 C.A. 550, 226 P. 942.
"Conclusions of the pleader are not admitted by demurrer."
Youdall v. Kaufman (1921), 55 C.A. 363, 203 P. 448.
"General demurrers admit the truth of all the material factual
allegations of the complaint, regardless of any possible difficulty
in proving them, but do not admit allegations which constitute
conclusions of law or which are contrary to matters of which
judicial notice must be taken." Martinez v. Socoma Cos. (1974), 11
C3d 394, 113 Cal. Rptr. 585, 521 P.2d 841.
"A general demurrer, not a motion to strike, is the
appropriate method of attacking the sufficiency of a complaint."
Bezaire v. Fidelity & Deposit Co. (1970), 12 C.A.3d 888, 91 Cal.
Rptr. 142.
"The question of whether a pleading is ambiguous and uncertain
cannot be raised by a general demurrer." Bennett v. Morris (1894),
4 C.U. 834. 37 P. 929.
"An objection to a complaint, on the ground of ambiguity or
uncertainty, can be taken only by special demurrer." Kirsch v.
Derby (1892), 96 C. 602, 31 P. 567.
"Objection that complaint is ambiguous cannot be taken under
general demurrer." Slattery v. Hall (1872), 43 C. 191.
"Where is complaint states all the necessary facts, but states
them imperfectly, a demurrer, to be effective, must be special, and
directed against the particular defects complained of." Tehama
County v. Bryan (1885), 68 C. 57, 8 P. 673.
Special Demurrer
"Formal defects in answer could be reached only by special
demurrer." Anglo California Trust v. Kelley (1931), 117 C. A. 692,
4 P.2d 604.
"Uncertainty in contract is not matter for special demurrer by
party promisor to complaint thereon. Civ. Code § 1654." Juri v.
Koster (1927), 84 C.A. 298, 257 P. 901.
"Where a complaint states imperfectly all the facts essential
to a recovery, a demurrer to be effectual must be special and point
out the very defect." Union Ice Co. v. Doyle (1907), 6 C.A. 284,
92 P. 112.
"Objection that complaint is ambiguous or uncertain or that
essential facts appear only inferentially, as conclusion of law
must be raised by special demurrer." Cullinan v. Mercantile Trust
Co. of California (1927), 80 C.A. 377, 252 P. 647.
"Objection that essential facts appear only inferentially must
be raised by special demurrer." Manuel v. Calistoga Vineyard Co.
(1936), 17 C.A.2d 377, 61 P.2d 1204.
"Conclusion of law is insufficient statement of fact when
attacked by general demurrer, and no estoppel, waiver, or other
cure appears of record. Code Civ. Proc. §426." Smith v. Bentson
(1932), 127 C.A.Supp. 789, 15 P.2d 910.
"Common counts, though mainly conclusions of law, are not
subject to either general or special demurrer." Smith v. Bentson
(1932), 127 C.A.Supp. 789, 15 P.2d 910.
Waiver of Demurrer
"If, after demurrer, the defendant pleads, he waives the
demurrer." Pierce v. Minturn (1851), 1 C. 470.
"Consent to overruling of demurrer does not waive demurrer for
want of sufficient cause of action." Harris v. Seidell (1934), 1
C.A.2d 410, 36 P.2d 1104.
"A general demurrer is not waived by consenting that it may be
overruled." Evans v. Gerken (1894), 105 C. 311, 38 P. 725.
"Demurrers on which the record shows no action to have been
taken will be considered waived." Diamond Coal Co. v. Cook (1900),
6 C.U. 446, 61 P. 578.
"Code Civ. Proc. §472, provides that a demurrer is not waived
by filing an answer at the same time. Held, that a demurrer to a
complaint is not waived by the subsequent filing of an answer upon
leave given by the court." Curtiss v. Bachman (1890), 24 P. 379,
84 C. 216.
Admissions as to statutes or as to foreign laws
"If a pleading misstates the effect and purpose of the statute
upon which the party relies, a demurrer to the pleading does not
admit the correctness of the construction, or that the statute
imposes the alleged obligations or confers the alleged rights."
Pennie v. Reis (1889), 132 U.S. 464, 10 S.Ct. 149, 33 L.Ed. 426.
(Note: Read this Case!!!)
Specification of Grounds
"Specification must be made of grounds on which a complaint is
subject to special demurrer." Johnson v. Clark (1936), 7 C.2d 529,
61 P.2d 767.
"Defendant desiring more specific pleading or more information
should demur specially or demand a bill of particulars. Code Civ.
Proc. §454." Cooney v. Glide (1929), 97 C.A. 77, 275 P. 257.
Necessity of Demurrers - failure to object to complaint is waived
on appeal
"Where record did not disclose that a demurrer was interposed
to the complaint because of alleged lack of essential allegations,
complaint would be liberally construed on appeal in aid of judgment
for plaintiff." American Marine Paint Co. v. Tooley (1942), 52
C.A.2d 530, 127 P.2d 960.
"On objection that complaint does not state cause of action
raised for first time on appeal pleading will be liberally
construed and, if necessary facts appear even by implication or as
a conclusion of law, judgment based upon complaint will be upheld."
Newmire v. Chapman (1937), 64 P.2d 734, 18 C.A.2d 360.
"Where complaint is first attacked on appeal as not stating
facts sufficient to constitute a cause of action, it will then be
liberally construed and upheld, if necessary facts appear by
implication only, or as a conclusion of law." Tietke v. Forrest
(1923), 64 C.A. 364, 221 P. 681.
"A pleading is to be construed most strongly against the
pleader, at least when they are sworn to." Green v. Covillaud (10
C. 317, 70 Am. Dec. 725.
"Pleadings in abatement should be strictly construed." Kadota
Fig Ass'n. of Producers v. Case-Swayne Co. (1946), 73 C.A.2d 796,
167 P.2d 518.
"Complaint, upon demurrer, is construed most strongly against
the pleader." Tehama County v. Pacific Gas & Electric Co. (1939),
44 C.A.2d 566, 91 P.2d 645.
"Demurrer for uncertainty lies for what is said with uncertain
meaning and not for what is omitted." Smith v. Hollander (1927),
85 C.A. 535, 259 P. 958.
Demurrer and Answer
"The defendant may demur and answer at the same time to the
entire complaint, and also to each cause of action stated therein."
People v. McClellan (1866), 31 C. 101.
"An issue of law and fact should not be mixed in an answer.
A demurrer should be filed as a separate pleading." Brooks v.
Douglass (1867), 32 C. 208.
"When considering the sufficiency of a pleading attacked by
demurrer, defects in the pleading attacked cannot be held to be
cured by allegations in an answer filed at the same time as the
demurrer, for the answer is before the court only in the event that
the pleading withstands the test of the demurrer." Metropolitan
Life Ins. Co. v. Rolph (1920), 184 C. 557, 194 P. 1005.
"Averments in the answer will not be considered when passing
upon the demurrer to the complaint." Monsch v. Pellissier (1922),
187 C. 790, 204 P. 224.
Complaint
Jurisdictional Facts
"In a court of limited and special jurisdiction every fact
essential to confer the jurisdiction must be alleged; but in courts
of general jurisdiction the cause of action only need be stated."
Doll v. Feller (1860), 16 C. 432; Schwartz, Inc. v. Burnett
Pharmacy (1931), 112 C.A. Supp. 781, 295 P. 508.
"Since the superior court is presumed to have jurisdiction
over a particular cause, it is not necessary to plead affirmatively
the facts showing jurisdiction but lack of jurisdiction must be
affirmatively shown." Cheney v. Trauzettel (1937) 9 C.2d 158, 69
P.2d 382, distinguished and followed in Altman v. McCollum (1951),
107 C.A.2d Supp. 847, 236 P.2d 914; explained in Seidell v. Anglo-
California Trust Co. (1942), 55 C.A.2d 913, 132 P.2d 12; followed
in Higgins v. Coyne (1946), 75 C.A.2d 69, 170 P.2d 25.
"It is essential to jurisdiction that there be some proper
application invoking judicial power of court in respect to matters
sought to be litigated." Associated Oil Co. v. Mullin (1930), 294
P. 421, 110 C.A. 385.
Particular Averments
"One may not by the mere device of an allegation in a pleading
create a legal duty that otherwise does not exist." Pascoe v.
Southern California Edison Co. (1951), 102 C.A.2d 254, 227 P.2d
555.
"A party who brings himself within an exception to a general
rule must state facts which take his case out of the general rule
and within the exception." Senter v. Davis (1869), 38 C. 450; San
Francisco Savings Union v. Reclamation District No. 124 (1904), 144
C. 639, 79 P. 374; Bird v. Utica Gold Mtn. Co. (1906), 2 C.A. 674,
677, 84 P. 256.
"One may not by the mere device of an allegation in a pleading
create a legal duty that otherwise does not exist." Pascoe v.
Southern California Edison Co. (1951), 102 C.A.2d 254, 227 P.2d
555.
Performance of Conditions in Contract Actions
"In action for specific performance of contract it must be
made to appear by affirmative allegations that consideration for
contract was adequate and it is insufficient merely to state legal
conclusions of such adequacy." Boro v. Ruzich (1943), 58 C.A.2d
535, 137 P.2d 51.
"A pleader is bound by the interpretation of a contract
adopted by him and set forth in his pleading." Tennant v. Wilde
(1929), 98 C.A. 437, 277 P. 137.
"The pleader is bound by the interpretation adopted by him and
set forth in his pleading." White v. San Diego (1932), 126 C.A.
501, 14 P.2d 1062.
"Performance of condition precedent upon which recovery
depends must be alleged." Eddy v. Hickman (1934), 136 C.A. 103, 28
P.2d 66; Mitchell v. Green (1931), 110 C.A. 259, 293 P 879.
"In equitable action, performance or willingness to perform
must be alleged." Holstrom v. Mullen (1927), 84 C.A. 1, 257 P.
545.
"Where a nonperformance of a duty imposed by statute is relied
upon as the gravaman of the action, the conditions in view of which
the duty is to be performed, must be alleged." Fontaine v.
Southern Pacific Co. (1880), 54 C. 645.
"Facts, not mere conclusions, should be alleged to establish
right to specific performance of contract." Foley v. Cowan (1947),
80 C.A.2d 70, 181 P.2d 410.
"A count in a complaint which does not allege any assignment
or transfer to the plaintiff of the property or rights of action of
the person whose claims to a right of action against the defendants
are set forth in such count, is insufficient." Lapique v. Denis
(1914), 23 C.A. 683, 139 P. 237.
"The complaint, on its face, must show that the plaintiff has
the better right." Rogers v. Shannon (1877), 52 C. 99.
Complaint based on statute
"[If a declaration on a contract action is founded on a
statute], the act or offense must be shown to within its
provisions, and the defendant excluded from the operation of any
exception in its enacting clause. An exception in the body of the
act is a matter of defense only." Shipman's Common Law Pleading
(1923), p. 264.
"When a pleader wishes to avail himself of a statutory
privilege, or right given by particular facts, he must show the
facts; those facts which the statute requires as the foundation of
the right must be stated in the complaint." Dye v. Dye (1858), 11
C. 163.
"Where a right is given to a particular class of individuals
the pleadings in these special cases should show that the persons
who seek to avail themselves of the special privileges are within
the class thus privileged." Lee Doon v. Tesh (1885), 68 C. 43, 6
P. 97, 8 P. 621.
"Where a pleader wishes to avail himself of a statutory
privilege or right given by particular privilege or right by
particular facts, he must state in his complaint the facts upon
which the right is founded." San Luis Obispo County v. Hendricks
(1886), 71 C. 242, 11 P. 682.
"When any qualification or exception is stated in the enacting
clause of a statute, the declaration or plea founded upon it must
allege the facts which are necessary to bring the case within the
qualification, or to exclude it from the exception." San Francisco
Savings Union v. Reclamation District No. 124 (1924), 144 C. 639,
79 P. 374.
"When reliance is had upon a right or status created by
statuted the pleader must state all the facts necessary to bring
the case within the statute." Nielson v. Gross (1911), 17 C.A. 74,
118 P. 725.
"In statutory actions the party suing must bring himself
strictly within the statutory requirements necessary to confer the
right, and this must appear in the complaint." McLain v. Llewellyn
Iron Works (1922), 56 C.A. 60, 204 P. 869.
"Where an action is founded on a statutory right or a right
deducible wholly from statute, the plaintiff must, by his
complaint, bring himself squarely and clearly within the terms or
provisions of the statute upon which he relies or must rely to
state a cause of action." Bailey Trading Co. v. Levy (1925), 72
C.A. 339, 237 P. 408.
"Where a right is purely statutory and is granted upon
conditions, one who seeks to enforce the right must by allegation
and proof clearly bring himself within the conditions." Johnson v.
Glendale (1936), 12 C.A.2d 389, 55 P.2d 580, distinguished in Shea
v. San Bernardino (1936), 7 C.2d 688, 62 P.2d 365; followed in
Wicklund v. Plymouth Elementary School District (1940), 37 C.A.2d
252, 99 P.2d 314; questioned in Farrell v. Placer County (1944), 23
C.2d 624, 145 P.2d 570, 153 A.L.R. 323, Schulstad v. San Francisco
(1946), 74 C.A.2d 105, 168 P.2d 68.
"If plaintiff seeks to fasten liability upon defendant through
medium of a particular statute, he must allege sufficient facts to
bring defendant within scope of that statute and unless he does so
defendant is not called upon to plead facts to take him out of
operation of statute." Watts v. Currie (1940), 38 C.A.2d 615, 101
P.2d 764.
"In a statutory action a compliance with all the provisions
conferring the right must be alleged." Paden v. Goldbaum (1894),
4 C.U. 767, 37 P.2d 759.
"When a pleader wishes to avail himself of a statutory
privilege or right given by particular facts he must show the
facts." Renton Estate (1892), 3 Cof. 519.
"A person pleading a right derived from a statute or a
statutory privilege must allege the facts which the statute
requires as the foundation of his right." Renton Estate (1892), 3
Cof. 519.
In General
Facts Constituting cause of action
"Every fact which, if controverted, plaintiff must prove to
maintain his action must be stated in the complaint." Jerome v.
Stebbins (1859), 14 C. 457; Green v. Palmer (1860), 15 C. 411, 76
Am. Sec. 492; Johnson v. Santa Clara County (1865), 28 C. 545.
"The complaint, on its face, must show that the plaintiff has
the better right." Rogers v. Shannon (1877), 52 C. 99.
"Complaint, to be sufficient, must contain a statement of
facts which, without the aid of other facts not stated shows a
complete cause of action." Going v. Didwiddle (1890), 86 C. 633,
25 P. 129.
"Pleadings should set forth facts, and not merely the opinions
of parties." Snow v. Halstead (1851), 1 C. 359.
"A complaint must contain a statement of facts showing the
jurisdiction of the court, ownership of a right by plaintiff,
violation of that right by the defendant, injury resulting to
plaintiff by such violation, justification for equitable relief
where that is sought, and a demand for relief." Pierce v. Wagner,
134 F.2d. 958.
"Essential facts on which legal points in controversy depend,
should be pleaded clearly and precisely, so that nothing is left
for court to surmise." Gates v. Lane (1872), 44 C. 392.
"The test of the materiality of an averment in a pleading is
this: Could the averment be stricken from the pleading without
leaving it insufficient?" Whitwell v. Thomas (1858), 9 C. 499.
"In pleading, the essential facts on which a determination of
the controversy depends should be stated with clearness and
precision so that nothing is left to surmise." Bernstein v. Fuller
(1950), 98 C.A.2d 441, 220 P.2d 558.
"The "facts" which the court is to find and the "facts" which
a pleader is to state lie in the same plane - that is, in both
connections, "facts" are to be stated according to their legal
effect." Hihn v. Peck (1866), 30 C. 280.
"A plaintiff must set forth in his complaint the essential
facts of his case with reasonable precision and with sufficient
clarity and particularity that defendant may be apprised of nature,
source and extent of his cause of action." Metzenbaum v.
Metzenbaum (1948), 86 C.A.2d 750, 195 P.2d 492.
"In general, matters of substance must be alleged in direct
terms, and not by way of recital or reference." Silvers v.
Grossman (1920), 183 C. 693, 192 P. 534; Reid v. Kerr (1923), 64
C.A. 117, 220 P. 688.
"A fact which constitutes an essential element of a cause of
action cannot be left to inference." Roberts v. Roberts, 81 C.A.2d
871, 185 P.2d 381.
"Material facts must be alleged directly and not by way of
recital." Vilardo v. Sacramento County (1942), 54 C.A.2d 413, 129
P.2d 165.
"Material allegations must be distinctly stated in complaint."
Goland v. Peter Nolan & Co. (1934), 33 P.2d 688, subsequent opinion
38 P.2d 783, 2 C.2d 96.
"Matters of substance must be presented by direct averment and
not by way of recital." Stefani v. Southern Pacific Co. (1932),
119 C.A. 69, 5 P.2d 946.
"A pleading which leaves essential facts to inference or
argument is bad." Ahlers. v. Smiley (1909), 11 C.A.343, 104 P.
997.
"The forms alone of the several actions have been abolished by
the statute. The substantial allegations of the complaint in a
given case must be the same under our practice act as at common
law." Miller v. Van Tassel (1864), 24 C. 459.
"A pleading cannot be aided by reason of facts not averred."
San Diego County v. Utt (1916), 173 C. 554, 160 P. 657.
"Facts necessary to a cause of action but not alleged must be
taken as having no existence." Frace v. Long Beach City High
School Dist. (1943), 137 P.2d 60, 58 C.A.2d 566.
"A fact necessary to pleader's cause of action, if not
pleaded, must be taken as having no existence." Feldesman v.
McGovern (1941), 44 C.A.2d 566.
"When pleading is silent as to material dates, or does not
clearly state facts relied on, it must be presumed that statement
thereof would weaken pleader's case." Whittemore v. Davis (1931),
112 C.A. 702, 297 P. 640.
"Material matters in pleadings must be distinctly stated in
ordinary and concise language." Brown v. Sweet (1928), 95 C.A.
117, 272 P. 614.
"Facts contained in public records should be alleged in
pleading when they constitute necessary elements of good cause of
action." Gray v. White (1935), 5 C.A.2d 463, 43 P.2d 318.
"When facts are available from public records, it is
ordinarily improper to allege such facts on mere information and
belief." People v. Birch Securities Co. (1948), 196 P.2d 143, 86
C.A.2d 703, cert. denied Birch Securities Co. v. People of State of
California, 69 S.Ct. 745, 336 U.S. 936, 93 L.Ed. 1095.
Conclusions
"A mere conclusion of a pleader cannot be availed of to
initiate and invite an issue of fact." Hatfield v. Peoples Water
Co. (1914), 25 C.A. 711, 145 P. 164.
"One may not by the mere device of an allegation in a pleading
create a legal duty that otherwise does not exist." Pascoe v.
Southern California Edison Co. (1951), 102 C.A.2d 254, 227 P.2d
555.
"Allegations of legal conclusions cannot be permitted to
supply essential allegations of fact." Bailes v. Keck (1927), 200
C. 697, 254 P. 573, 51 A.L.R. 930.
"Pleadings should allege facts, and not mere conclusions of
law." Bailes v. Keck (1927), 200 C. 697, 254 P. 573, 51 A.L.R.
930.
"A pleading must allege facts and not conclusions, and
conclusions of law are not admitted by demurrer." Vilardo v.
Sacramento County (1942), 54 C.A.2d 413, 129 P.2d 165.
"Facts, not mere conclusions, should be alleged to establish
right to specific performance of contract." Foley v. Cowan (1947),
80 C.A.2d 70, 181 P.2d 410.
"Allegation of conclusion of law tenders no issue."
California Western Holding Co. v. Merrill (1935), 7 C.A.2d 131, 46
P.2d 175.
"Conclusions of law in a pleading are disregarded." Koehler
v. Coronado (1927), 83 C.A. 648, 257 P. 187.
14th Amendment
Intent
"On the other hand, there is a significant historical fact in
all of this. Clearly, one of the purposes of the 13th and 14th
Amendments and of the 1866 act and of section 1982 was to give the
Negro citizenship. . ." Jones v. Alfred H. Mayer Co. (1967), 379
F.2d 33, 43.
"It is true that the chief interest of the people in giving
permanence and security to citizenship in the 14th Amendment was
the desire to protect the Negroes." Afroyim v. Rusk (1967), 18
L.Ed. 2d 758, 764.
"The object of the 14th Amendment, as is well known, was to
confer upon the colored race the right of citizenship." United
States v. Wong Kim Ark, 169 U. S. 649, 692.
"It would be a remarkable anomaly if the national government,
without the amendment, could confer citizenship on aliens of every
race or color, and citizenship, with civil and political rights, on
the "inhabitants" of Louisiana and Florida, without reference to
race or color, and cannot, with the help of the amendment, confer
on those of the African race, who have been born and always lived
within the United States, all that this law seeks to give them."
United States v. Rhodes (1866), 27 Fed. Cas. 785, 794.
"The amendment referred to slavery. Consequently, the only persons
embraced by its provisions, and for which Congress was authorized
to legislate in the manner were those then in slavery." Bowlin v.
Commonwealth (1867), 65 Kent. Rep. 5, 29.
"The only question, therefore, left for determination is the
constitutionality of Section I of the Civil Rights Act of April 9,
1866. Nothing in the Constitution of the United States, as
originally adopted, or in any of the first twelve amendments to
that instrument, adopted shortly after ratification of the
Constitution, would warrant the enactment of this Act by Congress."
United States v. Morris (1903), 125 Fed. Rep. 322.
"It is claimed that the plaintiff is a citizen of the United
States and of this state. Undoubtedly she is. It is argued that she
became such by force of the first section of the 14th Amendment,
already recited. This, however, is a mistake. It could well be
claimed that she became free by the effect of the 13th Amendment,
by which slavery was abolished, for she was no less a citizen than
she was free before the adoption of either of these amendments. No
white person. . . owes the status of citizenship to the recent
amendments to the Federal Constitution.
"The history and aim of the 14th Amendment is well known, and
the purpose had in view by its adoption, well understood. That
purpose was to confer the status of citizenship upon a numerous
class of persons domiciled within the limits of the United States
who could not be brought within the operation of the naturalization
laws because (of being) native born; and whose birth, though
native, had at the same time left them without the status of
citizenship. These persons were not white persons, but were, in the
main, persons of African descent who had been held in slavery in
this country or, if having themselves never been held in slavery,
were the native-born descendants of slaves." Van Valkenberg v.
Brown (1872), 43 Cal. Sup. Ct. 43, 47. (Emphasis added.)
Not Affecting State Citizenship
"After the adoption of the 13th Amendment, a bill which became
the first Civil Rights Act was introduced in the 39th Congress, the
major purpose of which was to secure to the recently freed Negroes
all the civil rights secured to white men. . . .(N)one other than
citizens of the United States were within the provisions of the
Act." Hague v. C. I. O., 307 U. S. 496, 509.
"No white person. . . owes the status of citizenship to the
recent amendments to the Federal Constitution." Van Valkenbrg v.
Brown (1872), 43 Cal. Sup. Ct. 43, 47.
"The amendment reversed and annulled the original policy of
the Constitution, which left it to each state to decide exclusively
for itself whether slavery should or should not exist as a local
institution, and what disabilities should attach to those of a
servile race within its limits. The whites needed no relief or
protection, and they are practically unaffected by the amendment."
United States v. Rhodes (1866), 27 Fed. Cas. 785 (No. 16,151), 794.
"The rights of the state, as such, are not under consideration
in the 14th Amendment, and are fully guaranteed by other
provisions." United States v. Anthony (1873), 24 Fed. Cas. 829
(No. 14,459), 830.
"It appears upon the face of the amendment, as well as from
the history of the times, this was not intended to impose any new
restrictions upon citizenship, or to prevent any persons from
becoming citizens by fact of birth within the United States who
would thereby have become citizens according to the law existing
before its adoption." United States v. Wong Kim Ark, supra, p.
676.
"It is quite clear, then, that there is a citizenship of the
United States and a citizenship of a state, which are distinct from
each other and which depend upon different characteristics or
circumstances of the individual. . . . Of the privileges and
immunities of the citizens of the United States and of the
privileges and immunities of the citizen of the state, and what
they respectively are, we will presently consider; but we wish to
state here that it is only the former which are placed by this
clause under the protection of the Federal Constitution, and the
latter, whatever they may be, are not intended to have any
additional protection by this paragraph of the amendment."
Slaughter House Cases, supra, p. 408.
"There can be no doubt. . . that the civil rights sometimes
described as fundamental and inalienable, which before the war
amendments were enjoyed by state citizenship and protected by state
government, were left untouched by this clause of the 14th
Amendment." Twining v. New Jersey, 211 U. S. 78, 96.
"The 14th Amendment creates and defines citizenship of the
United States. It had long been contended, and had been held by
many learned authorities, and had never been judicially decided to
the contrary, that there was no such thing as a citizen of the
United States, except by first becoming a citizen of some state."
United States v. Anthony, supra, p. 80.
Congressional Authority Under Amendment
"Under the 14th Amendment Congress has the power to protect by
appropriate legislation the freedom of speech and the other rights
enumerated in the first 8 Articles of Amendment." United States v.
Hall (1871), Fed. Case No. 15,282.
"The exercise of congressional authority under the enforcement
provision of the 14th Amendment, unlike the commerce clause, is not
limited by the 10th Amendment." Remmick v. Barnes County (1977),
435 F.Supp. 914.
"Power reserved to the States by the 10th Amendment is limited
by the 14th Amendment so that requirements of the Civil Rights Act
may be applied to municipalities." Lowe v. Waukesha Joint School
District #1 Board of Education (1977), 560 F.2d 285. (Italics
added.)
"Statutory law of the United States is part of the law of each
State just as if it were written into State statutory law." People
v. Barajas, 147 Cal. Rptr. 195.
"Naturalization" is a privilege." United States v. Zgrebee,
38 F.Supp. 127, 129.
"The opportunity to become a "citizen" is a privilege."
United States v. Shapiro, 43 F.Supp. 927. 929.
"It may be conceded that this amendment gives the power to
Congress not only to protect the personal freedom of enfranchised
citizens but to remove from them every badge and restraint of
slavery and involuntary servitude.
"Congress has by virtue of this amendment declared 'that all
persons within the jurisdiction of the United States shall have the
same right in every state and territory. . . to give evidence. . .
as is enjoyed by white persons.'. . . Conceding, then, that
Congress has the power by virtue of the 13th Amendment to confer on
the persons enfranchised thereby the same right to testify as is
enjoyed by white persons,. . . (i)t would be an offense for two or
more colored persons, enfranchised slaves, to conspire with the
same purpose. . . .The ground of the decision was that the sections
referred to were broad enough, not only to punish those who
hindered and delayed the enfranchised colored citizen from voting
on account of his race, color, or previous condition of servitude,
but also those who hindered and delayed the free white citizen."
LeGrand v. United States, 12 Fed. Rep. 577, 580-582.
"The utmost legal effort of the emancipating section was to
declare the colored as free as the white race in the United States.
It certainly gave the colored race nothing more than freedom. It
did not elevate them to social or political equality with the white
race. It neither gave nor aimed to give them, in defiance of state
laws, all the rights of the white race, but left them equally free
in all the states, and equally subject to state jurisdiction and
state laws. Without the second section, therefore, there could be
no pretext for a claim by Congress for special legislation for the
colored race which would be unauthorized in relation to the white
race of freemen.
"And whatever may have been the unspoken aim of the second
section -- freedom to all, and nothing more, was the only
constructive object, and is the inevitable effect of this section.
. . .To prevent any such frustration of the aim and effect of the
declared emancipation was obviously the object, and must be the
only legitimate effect of the second section. "Power to enforce
this article by appropriate legislation" can import nothing more
than to uphold the emancipating section, and prevent a violation of
the contemplated race. It could not mean that Congress should have
the power to legislate over their civil rights and remedies in the
states any more than over those of all citizens; and it certainly
does not squint at any such legislation as to white citizens."
Bowlin v. Commonwealth (1897), 65 Ky. Rep. 5, 8.
"In United States v. Cruikshank, 1 Woods 308, 319,. . . the
question was the constitutionality of the enforcement act. . .
which Mr. Justice Bradley declared to be unconstitutional, as an
unauthorized assumption of power by Congress under the 14th
Amendment, but in referring to the Civil Rights Act, in this cause
involved, expressing the following opinion: It was supposed that
the eradication of slavery and involuntary servitude of every form
and description required the slave should be made a citizen and
placed on an entire equality before the law with the white citizen,
and, therefore, that Congress had the power, under the amendment,
to declare and effectuate these objects. The form of doing this, by
extending the right of citizenship and equality before the law to
persons of every race and color (except Indians not taxed, of
course, excepting the white race, whose privileges were adopted as
the standard,. . . " United States v. Morris, supra, p. 237.
"The privilege or immunity asserted in the Slaughter House
Cases was the freedom to pursue a common business calling, alleged
to have been infringed by a state monopoly statute. It should not
be forgotten that the court, in deciding the case, did not deny the
contention of the dissenting justices that the asserted freedom was
in fact infringed by the state law. It rested its decision, rather,
on the ground that the immunity claimed was not one belonging to
persons by virtue of their citizenship; "that there is a
citizenship of the United States, and a citizenship of a state,
which are distinct from each other, and which depend on different
characteristics in the individual." And it held that the protection
of the privileges and immunities clause did not extend to those
"fundamental" rights attached to state citizenship which are
peculiarly the creation and concern of state governments and which
Mr. Justice Washington, in Corfield v. Coryell, 4 Wash. C. C. 371,
6 Fed. Cas. No. 3,230, mistakenly thought to be guaranteed by
Article IV, section 2, of the Constitution. The privileges and
immunities of citizens of the United States, it was pointed out,
are confined to that limited class of interests growing out of the
relationship between the citizen and the national government
created by the Constitution and federal laws. That limitation upon
the operation of the privileges and immunities clause has not been
relaxed by any later decisions of this court." Hague v. C. I. O.,
supra, p. 520, note 1.
Privileges and Immunities pursuant to a franchise Under 14th
Amendment
"Naturalization" is a privilege." United States v. Zgrebee,
38 F.Supp. 127, 129.
"The opportunity to become a "citizen" is a privilege."
United States v. Shapiro, 43 F.Supp. 927. 929.
"No statute of Arkansas inhibits persons described as
belonging to 'low and lawless type of humanity' coming into the
state. Under the 14th Amendment, and under the interstate commerce
clause, of the Constitution, they now have that right [privilege]."
State of Arkansas v. Kansas & T. Coal Co., 96 F. 353. (Emphasis and
insertion added.)
"The Federal Civil Rights Statutes created rights which may be
protected by federal courts in the exercise of their normal equity
jurisdiction." Progress Development Corp. v. Mitchell (1960), 182
F.Supp. 681, 711. (Emphasis and insertions added.)
"Any definition of the word 'franchise' must include the word
'privileges'." Willamette Woolen Mfg. Co. v. Bank of British
Columbia, Or., 119 U. S. 191. (Italics added.)
"A franchise is bi-lateral in nature and imposes obligations
[duties] while conferring rights [privileges], so that acceptance
is necessary to prove that grantee has undertaken those
obligations." Greenberg v. City of New York, 274 N. Y. S. 4.
(Insertions added.)
"A franchise is a privilege in which the public have an
interest, and which cannot be exercised without the authority of
the sovereign." People v. Utica Insurance Co. (1818), 15 Johns.
358.
"The act of 1902, under which the assessment complained of was
made, provides for a tax on franchises, rights, and privileges, and
not on tangible property, income, business, or capital. A franchise
is a grant of right by public authority, the main element of which
is, in general, "permission" to do something which otherwise the
grantee would not have the right to do." Western Union Tel. Co. v.
Wright (1910), 185 Fed. Rep. 250, 253.
"It is hardly necessary to do more than recall the fundamental
principle established in Dartmouth College v. Woodward, 4 Wheat.
518,. . . that a franchise is a contract between the grantor and
the grantee." D. C. Transit System v. Pearson (1957), 149 Fed.
Supp. 18, 24.
"What is a franchise? Under English law, Blackstone defines it
as 'a royal privilege or a branch of the King's prerogative,
subsisting in the hands of a subject.'" State of California v.
Central Pacific R. R. Co. (1888), 8 S. C. 1073, 1080.
Police Powers
"Police power may not be invoked under guise of general
welfare to interfere with sale by individual of his own property
when acquiring and possession of such property is not contrary to
law." People v. Pace (1925), 73 C.A. 548, 559, 238 P. 1089.
"State has, under its police powers, right to relieve itself
of any obnoxious class of population; and this has never been
denied." In Re Perkins (1852), 2 C. 424.
"Domestic commerce is subject to the police power of the
states." In Re Abel, 77 P. 621, 10 Idaho 288.
"To justify the state in thus interposing its authority on
behalf of the public, it must appear:
1. That the interests of the public generally, as
distinguished from those of a particular class, require
such interference.
2. That the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive
upon individuals.
"The legislature may not, under the guise of protecting the
public interests, arbitrarily interfere with private business, or
impose unusual and unnecessary restrictions upon lawful
occupations. Its determination as to what is a proper exercise of
its police powers is not final or conclusive, but is subject to
supervision of the courts." Lawton v. Steele, 152 U. S. 133.
"Moreover, a distinction must be observed between the
regulation of an activity which may be engaged in as a matter of
right, and one carried on by government sufferance or permission.
In the latter case, the power to exclude altogether generally
includes the lesser power to condition and may justify a degree of
regulation not admissible in the former." Davis v. Massachusetts,
167 U. S. 43.
"Definitions of the police power must, however, be taken
subject to the condition that the state cannot, it its exercise,
for any purpose whatever encroach upon the powers of the general
government, or the rights secured by the supreme law of the land."
New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 651.
"The police power, according to its largest definition, is
restricted in its exercise by the National Constitution, as is
further shown by those cases in which grants of exclusive
privileges respecting public highways and bridges over navigable
streams have been sustained as contracts, the obligations of which
are fully protected from impairment by state enactments." New
Orleans Gas Co. v. Louisiana Light Co., ibid., p. 663.
"The police power is not a universal solvent by which all
constitutional guarantees and limitations can be loosened and set
aside, regardless of their clear and plain meaning, nor is it a
substitute for those guarantees." Goldman v. Crowther, 128 A 50.
"A claim that action is being taken under the police powers of
the state cannot justify disregard of constitutional inhibitions."
Panhandle Eastern Pipeline Co. v. State Highway Commission, 294 U.
S. 613.
"It is settled that the constitutional rights protected from
invasion of the police power include rights safeguarded by both the
express and implied prohibitions in the Constitutions." Tighe v.
Osborne, 131 A 801; State v. Marble, 73 N. E. 1063; State v.
Redmon, 114 N.W. 137.
14th Amendment citizenship related to taxation
"A tax is an enforced contribution to sovereign exacted
pursuant to legislative authority and not as a voluntary payment or
donation."
Arizona Department of Revenue v. Transamerica Title Insurance Co.,
604 P. 2d 1139.
". . . (E)very taxpayer is a cestui qui trust having
sufficient interest in the preventing abuse of the trust to be
recognized in the field of this court's prerogative jurisdiction as
a relator in proceedings to set sovereign authority in motion. . .
" In Re Bolens (1912), 135 N.W. 164.
"As a general rule, every citizen of the United States,
regardless of his residence, and every resident of the United
States, regardless of his citizenship, is taxable on his income
without respect to its geographic source. The constitutional power
to impose the tax on such a world wide basis is sustained by Cook
v. Tait (1924), 265 U.S. 47, 44 S.Ct. 444." Cases and Materials on
Federal Taxation (1955), by Paul W. Bruton and Raymond J. Bradley,
edited by Warren A. Seavey, West Publishing Co., p. 115.
"Taxpayers are not [de jure] State Citizens." Belmont v. Town of
Gulfport, 122 So. 10. (This decision regards a poll tax.)
Due Process Under the 14th Amendment
"The right of trial by jury in civil cases, guaranteed by the
7th Amendment (Walker v. Sauvinet, 92 U. S. 90), and the right to
bear arms, guaranteed by the 2nd Amendment (Presser v. Illinois,
116 U. S. 252), have been distinctly held not to be privileges and
immunities of citizens of the United States guaranteed by the 14th
Amendment against abridgement by the states, and in effect the same
decision was made in respect of the guarantee against prosecution,
except by indictment of a grand jury, contained in the 5th
Amendment (Hurtado v. California, 110 U. S. 516), and in respect of
the right to be confronted with witnesses, contained in the 6th
Amendment." West v. Louisiana, 194 U. S. 258.
"In Maxwell v. Dow, supra, where the plaintiff in error had
been convicted by a state court of a felony upon an information,
and by a jury of eight persons, it was held that the indictment,
made indispensable by the 5th Amendment, and the trial by jury
guaranteed by the 6th Amendment were not privileges and immunities
of citizens of the United States, as those words were used in the
14th Amendment. . . .(T)he decision rested upon the ground that
this clause of the 14th Amendment did not forbid the states to
abridge the personal rights enumerated in the first eight
amendments, because these rights were not within the meaning of the
clause "privileges and immunities of citizens of the United
States.". . . We conclude, therefore, that the exemption from
compulsory self-incrimination is not a privilege or immunity of
national citizenship guaranteed by this clause of the 14th
Amendment against abridgement by the states. . . .It is possible
that some of the first personal rights safeguarded by the first
eight amendments against national action may also be safeguarded
against state action, because a denial of them would be a denial of
due process of law. . . .If this is so, it is not because those
rights are enumerated in the first eight amendments but because
they are of such a nature that they are included in the conception
of due process of law." Twining, supra, pp. 98-99.
"Due process requires that the court which assumes to
determine the rights of parties shall have jurisdiction. . . and
that there shall be notice and opportunity for hearing given the
parties. . . subject to these two fundamental conditions. . .
.(T)his court has. . . sustained all state laws, statutory or
judicially declared, regulating procedure, evidence, and methods of
trial, and held them to be consistent with due process of law. . .
"Among the most notable of these decisions are those sustaining the
denial of jury trial both in civil and criminal cases, the
substitution of information for indictments by a grand jury, the
enactment that the possession of policy slips raises a presumption
of illegality, and the admission of the deposition of an absent
witness in a criminal case." Twining, supra, pp. 110-111.
"The technical niceties of the common law are not regarded. .
. .", 1 R.C.L. § 31, p. 422. "A jury does not figure, ordinarily,
in the trial of an admiralty suit. . . the verdict of the jury
merely advisory, and may be disregarded by the court." 1 R.C.L. §
40, p. 432. "[The] rules of practice may be altered whenever found
to be inconvenient or likely to embarrass the business of the
court." 1 R.C.L. §32, p. 423. "A court of admiralty. . . acts upon
equitable principles." 1 R.C.L. §17, p. 416. "A libel of
information [accusation] does not require all the technical
precision of an indictment at common law. If the allegations
describe the offense, it is all that is necessary; and if it is
founded upon a statute, it is sufficient if it pursues the words of
the law." The Emily v. The Caroline, 9 Wheat. 381 (Insertion
added).
"But it is clear that the 14th Amendment in no way undertakes
to control the power of the state to determine by what process
legal rights may be asserted or legal obligations be enforced,
provided the method of procedure adopted gives reasonable notice
and affords fair opportunity to be heard before the issues are
decided;. . . Due process of law, guaranteed by the 14th Amendment,
does not require the state to adopt a particular form of procedure,
so long as it appears that the accused has had sufficient notice of
the accusation and an adequate opportunity to defend himself in the
prosecution." Twining, supra, p. 112.
"It is impossible to reconcile the reasoning of these cases
and the rule which governed their decision with the theory that an
exemption from compulsory self-incrimination is included in the
conception of due process of law. Indeed, the reasoning for
including indictment by a grand jury and trial by petit jury in
that conception, which has been rejected by this court in Hurtado
v. California and Maxwell v. Dow, was historically and principle
much stronger. Clearly appreciating this, Mr. Justice Harlan, in
his dissent in each of these cases, pointed out that the inexorable
logic of the reasoning of the court was to allow the states, so far
as the Federal Constitution was concerned, to compel any person to
be a witness against himself. In Missouri v. Lewis, 101 U. S. 22,
Mr. Justice Bradley, speaking for the whole court, said, in effect,
that the 14th Amendment would not prevent a state from adopting or
continuing the civil law instead of the common law. This dictum has
been approved and made an essential part of the reasoning of the
decision in Holden v. Hardy, 169 U. S. 387, 389, and Maxwell v.
Dow, 176 U. S. 581, 598. The statement excludes the possibility
that the privilege is essential to due process, for it hardly need
be said that the interrogation of the accused at his trial is the
practice of the civil law." Twining, supra, p. 113.
Due Process of 14th Amendment not applicable to State Citizens
"A state neither loses any of its rights nor is discharged
from any of its duties by a change in the civil government. The
body politic is still the same, though it may have a different
organ of communication." Snow, Cases in International Law, p. 21.
"The states had guarded the privilege to the satisfaction of
their own people up to the adoption of the 14th Amendment. No
reason is perceived why they cannot continue to do so. The power of
their people ought not to be fettered, and their capacity of sober
and restrained self-government weakened by forced construction of
the Federal Constitution. " Twining, supra, p. 114.
"Plaintiffs in error have no just complaint on the basis of
any want of due process of law. The 14th Amendment does not profess
to secure to all persons in the United States the benefit of the
same laws and the same remedies." Twining v. New Jersey, supra, p.
90. (Italics added.)
"Different tribunals for different persons: When the
protection of equal laws equally administered has been enjoyed, it
cannot be said that there has been a denial of the equal protection
of the law within the purview of the 14th Amendment, only because
the state has allowed one person to seek one forum and has not
allowed another person, asserted to be in the same class, to seek
the same forum, although as to both persons the law has afforded a
forum in which the same and equal laws are applicable and
administered." United States Federal Statutes Annotated (1888),
Volume 9, p. 551.
See also Admiralty.
14th Amendment not Constitutionally Ratified by the States
State v. Phillips (1975), 540 P.2d. 936 & Dyett v. Turner (1968),
439 P.2d 266 (where the courts questioned the lawful validity of
the 14th Amendment's ratification).
Pinckney G. McElwee, "THE 14TH AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES AND THE THREAT THAT IT POSES TO OUR DEMOCRATIC
GOVERNMENT", 11 S. C. L. Q. 484 (1959).
Walter J. Suthon, Jr. "THE DUBIOUS ORIGIN OF THE FOURTEENTH
AMENDMENT", 28 Tul. L. Rev. 22 (1953).
Evidence
Admissibility
"As a matter of strict right, either party litigant has the
right to the unbiased opinion of the trial judge, based upon legal
evidence." Rulofson v. Billings (1903), 140 C. 452, 74 P. 35.
Knowledge of the Law
"Ignorance of the law does not excuse misconduct in anyone,
least of all in a sworn officer of the law." In re McCowan (1917),
177 C. 93, 170 P. 1100.
"All are presumed to know the law." San Francisco Gas Co. v.
Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912),
163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223
P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107;
San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.
"It is one of the fundamental maxims of the common law that
ignorance of the excuses no one." Daniels v. Dean (1905), 2 C.A.
421, 84 P. 332.
Materiality
"Evidence on the part of the defendant to disprove what the
plaintiff has failed to allege and prove, and which was necessry to
sustain his cause of action, is properly excluded as immaterial."
Marriner v. Dennison (1889), 78 C. 202, 20 P. 386.
"Evidence which is not pertinent to the issues raised by the
pleadings is immaterial, and allowing its introduction constitutes
error." Fuentes v. Tucker (1947), 31 C.2d 1, 187 P.2d 752.
"Court should admit no evidence that is not material, and by
admitting evidence, over objection, it necessarily determines that
it is material." Schmidt v. Macco Const. Co. (1953), 119 C.A.2d
717, 260 P.2d 230.
"The rejection of immaterial evidence does not constitute
error." Moore v. Moore (1885), 2 C.U. 510, 7 P. 688.
Presumptions
"There is no presumption that United States citizen knows law
of foreign country." Tavares v. Glens Falls Ins. Co. (1956), 143
A.C.A. 864, 300 P.2d 102, hearing denied.
"Presumptions are indulged to supply the absence of facts, but
never against ascertained and established facts." Boggs v. Merced
Min. Co. (1859), 14 C. 279, 375 err dismd. (1866) 3 Wall. (U.S)
304, 18 L.Ed. 245.
"No party can claim the right of a presumption against his own
admission under oath." Braselton v. Vokal (1921), 53 C.A. 582, 200
P. 670.
"Presumptions are purely creatures of the law." Davis v.
Hearst (1911), 160 C. 143, 116 P. 530.
"A presumption cannot be based upon a presumption." Walsh v.
American Trust Co. (1935), 7 C.A.2d 654, 47 P.2d 323.
Authority
"The presumption of law is that a condition of things once
shown to exist continues until some charge is made to appear."
Page v. Rogers (1886), 31 C. 293.
"A status once established is presumed by the law to remain
until the contrary appears." Kidder v. Stevens (1882), 60 C. 414,
overruled by Vance v. Anderson (1896), 113 C. 532, 45 P. 816;
Eltzroth v. Ryan (1891), 89 C. 135, 26 P. 647; Metteer v. Smith
(1909), 156 C. 572, 105 P. 735.
NOTE: YOUR REVOCATION OF POWER OF ATTORNEY IS THE EVIDENCE OF A
CHANGE IN STATUS WHICH IS CONTRARY TO THE PRESUMPTION THAT YOU ARE
A "resident of california."
Judicial Notice of History
"Every judge is bound to know the history and the leading
traits which enter into the history of the country where he
presides." Conger v. Weaver (1856), 6 C. 548, 65 Am. Dec. 528.
"Courts are bound to take notice of matters of public history
affecting the whole people" Payne v. Treadwell (1860), 16 C. 220.
"The history of the state is a matter of which courts will
take judicial notice." Gray v. Reclamation District No. 1500
(1917), 174 C. 622, 163 P. 1024.
"The supreme court takes judicial notice of public history."
San Diego v. Cuyamaca Water District Co. 1930), 209 C. 105, 287 P.
475, discussed in C.L.R. 672.
Prosecuting and District Attorneys
"A prosecuting attorney is a public officer, because he
represents the sovereign power of the people of the state by whose
authority and in whose name, under Const. [1879] Art. 6, §20, [1849
- Art. 6, §7], all prosecutions must be conducted, and not because
of his relation to the court." Fleming v. Hancey, 153 C. 162, 94
P. 620.
"District Attorney is public prosecutor and must attend courts
and conduct, on behalf of the people, all prosecutions for public
offenses, and when not engaged in criminal proceedings, in superior
court or in civil cases on behalf of the people, he must attend
upon magistrates when requested by them and perform other specific
duties." 15 Op. Atty. Gen. 231.
"It is the duty of the district attorney to file complaints
and prosecute misdemeanor violations of statutes in cities where
there is no city prosecutor or where the city prosecutor is
disqualified or unable to prosecute or when the statutes are not
being uniformly or adequately enforced." 20 Op. Atty. Gen. 234.
"A person not licensed to practice law by any court is
eligible to the office of district attorney." People ex. rel.
Galvin v. Dorsey (1860) 32 C. 296.
"The District Attorney has the right to institute proceedings
and to prosecute pending cases, which rests primarily on evidence
procured by police methods constituting unreasonable searches and
seizures in violation of Article I, §19 of the California
Constitution and the 14th Amendment to the United States
Constitution, and does not subject himself to either civil or
criminal liability by so doing, but he is not required to institute
or prosecute such cases, if in his judgment such action will not be
for the best interest of the State." 24 Op. Atty. Gen. 95.
"A police officer who investigates pending criminal
prosecutions as an adjunct to the district attorney's office is not
functionally equivalent to a prosecutor; a police officer does not
occupy the same public trust as a prosecutor, is not an officer of
the court, and has none of the discretionary power of a prosecutor
in presenting the state's case in court. Accordingly, such a
policeman who suppressed exculpatory evidence in a criminal case,
resulting in a citizen's improper conviction, enjoyed no
prosecutorial immunity in a civil rights action (42 U.S.C. §1983)
brought by that citizen." Randle v. City and County of San
Francisco (1986, 1st Dist.), 186 Cal. App. 3d 449, 230 Cal. Rptr.
901.
"Persons employed by district attorney under authority of Pol.
Code §4307 (repealed. See West's Annotated Government Code §29600
et seq), to detect crime, are in no sense "deputy district
attorneys" in view of duties of latter as defined by §4153
(repealed. See West's Annotated Government Code §26500 et seq.).
Cunning v. Carr (1924), 230 P. 987, 69 C.A. 230.
See also Government Code §§26500 et seq.
United States
"The term [United States] has several meanings. It may be
merely the name of a sovereign occupying the position analogous to
that of other sovereigns in the family of nations, it may designate
territory over which the sovereignty of the United States extends,
or it may be the collective name of the States which are united by
and under the Constitution." Hooven & Allison Co. v. Evatt, 324 U.
S. 652.
"With respect to the free white de jure citizens of the States
the United States is sovereign in respect to foreign affairs;
domestically only powers granted or reasonably implied from the
Constitution LIMIT its sovereignty to certain specific spheres."
U. S. v. Curtis-Wright Corp. (1936), 299 U. S. 304, 57 S. Ct. 216.
Form of Government
"We are a republic. Real liberty is never found in despotism
or in the extremes of democracy." Alexander Hamilton. (Emphasis
added.)
"Democracy has never been and never can be so desirable as
aristocracy or monarchy, but while it lasts, is more bloody than
either. Remember, democracy never lasts long. It soon wastes,
exhausts, and murders itself. There never was a democracy that
never did commit suicide." John Adams, 1815. (Emphasis added.)
"Democracies have ever been spectacles of turbulence and
contention; have ever been found incompatible with personal
security, or the right to property; and have been as short in their
lives as they have been violent in their deaths." James Madison.
"Between a balanced republic and a democracy, the difference
is like that between order and chaos." Chief Justice John
Marshall.
"The delusions of democracy, like other delusions of the human
mind cannot be resisted by reason and truth alone. . . .Reason will
not answer -- reason will not protect your houses, ships, and stables
from thieves. You must have for protection the controlling fear of
God and fear of government." Impartial Herald (Suffolk,
Connecticut), May 21, 1799, quoted by John C. Miller in The
Federalist Era, p. 111, published by Harper & Brothers, 1960.
(Emphasis added.)
Note also Ames, Fisher Ames, II, 79, 81, 212-214.
WITNESSES
Foreigners Against White Persons
"Criminal Act § 14, provides, "No black, or mulatto person,or
Indian shall be allowed to give evidence in favor of, or against a
white man." People v. Hall (1854), 4 C. 399.
"Civil Practice Act § 394, provides, "No Indian or Negro shall
be allowed to testify in any action in which a white person is a
party." People v. Hall (1854), 4 C. 399.
"The words, "Indian," "Negro," "Black" and "White," are
generic terms, designating race. Therefore, Chinese and all other
people not white, are included in the prohibition from being
witnesses against whites." People v. Hall (1854), 4 C. 399.
"People v. Hall (4 C. 399), excluding Chinese witnesses in
suits to which white persons are parties, is affirmed." Speer v.
See Yup Co. (1859), 13 C. 73.
"The indicium of color is not an infallible test of the
competency of a witness, under the act excluding blackes,
mulattoes, and Indians, from testifying for or against white
persons." People v. Elyea (1859), 14 C. 144.
"It may be a sufficient test in many cases, but only when it
is so decided as to leave no doubt of the race to which the witness
belongs." People v. Elyea (1859), 14 C. 144.
"In a criminal action against a white person, a black or
mulatto person -- though the injured party -- cannot, under the
statute, be a witness against the defendant." People v. Howard
(1860), 17 C. 63.
"The words "in favor of or against any white person," in the
act prohibiting persons of one-half or more Indian blood, or
Mongolian, or Chinese, from giving evidence, refer to the defendant
alone in a criminal action. (Per Sanderson, C. J.)" People v. Awa
(1865), 27 C. 638.
"A defendant in a criminal case who is a Chinaman is entitled
to produce Chinese witnesses in his behalf." People v. Awa (1865),
27 C. 638.
"The fourteenth amendment to the Constitution of the United
States does ot conflict with the power of the legislature in the
exercise of its discretion to exclude Chinamen from the right to
testify in the state courts." People v. Brady (1870), 40 C. 198,
6 Am. Rep. 604, overruling People v. Washington (1869), 36 C. 658.
"Crimes Act § 14, as amended in 1863, provided that no
"Indian, Mongolian or Chinese shall be permitted to give evidence
in the courts of the stae in favor of or against a white man," is
not in conflict with constitutional amendment 14, which provides
that persons born or naturalized in the United States are citizens,
etc., that no state shall make any law abrogating the privileges or
immunities of citizens, nor deprive any person of life, liberty or
property without due process of law, nor deny to any within its
jurisdiction the equal protection of the laws; since the
restrictions by such amendment imposed on states relate to
substantial personal rights of liberty, property, etc., and do not
extend to mere rules of evidence." People v. Brady (1870), 40 C.
198, 6 Am. Rep. 604, overruling People v. Washington (1869), 36 C.
658.
"The evidence of a Chinaman cannot be admitted to prove a
white man guilty of manslaughter." People v. Harrington (1872), 1
C.U. 768.
Effect of Failure to Testify
"A defendant in a criminal case is entitled to rest in silence
and security upon his plea of not guilty, and no inference of guilt
can properly be drawn against him from his failure to testify in
his own behalf." People v. Tyler (1869), 36 C. 522.
"The right of the accused to be examined in his own behalf is
one which he may exercise or not, and no presumption can be
properly indulged against him for his not doing so." People v.
Anderson (1870), 39 C. 703.
"The existence of this right does not modify or change any of
the rules of evidence as they existed anterior to its incorporation
into the Code of Criminal Procedure." People v. Anderson (1870),
39 C. 703.
"The failure of a defendant in a criminal case to become a
witness in his own behalf is not to be considered by the jury as a
circumstance tending to establish guilt." People v. Brown (1878),
53 C. 66.
"It is a principle of criminal law that the defendant may not
be compelled give evidence against himself." Johnston v. Southern
Pacific Co. (1907), 150 C. 541, 89 P. 348, 11 Ann. Cas. 841.
"The accused's silence or failure to explain or deny the
evidence presented against him cannot be regarded as a confession."
(Disapproving statement in People v. Pianezzi, 42 C.A.2d 265, 268,
108 P.2d 732.). People v. Adamson (1946), 27 C.2d 478, 165 P.2d 3,
aff'd (1947) 332 U.S. 46, 91 L.Ed. 1903, 67 S.Ct. 1672, 171 A.L.R.
1223; followed in People v. Peterson (1946), 29 C.2d 69, 173 P.2d
11, People v. Greenberg (1946), 73 C.A.2d 675, 167 P.2d 214.
Discussed in 34 C.L.R. 764.
"Defendant's failure to testify will not supply a lacuna in
prosecution's proof." People v. Ashley (1954), 42 C.2d 246, 267
P.2d 271, on hearing after 115 A.C.A. 69, 251 P.2d 747, reh. den.
by div. ct., cert. den. 348 U.S. 900, 99 L.Ed. 707, 75 S.Ct. 222;
followed in People v. Weitz (1954), 42 C.2d 338, 267 P.2d 295.
"The defendant has the constitutional right to stand mute,
without unfavorable presumption from his silence, and to demand
that the prosecution prove the case against him beyond a reasonable
doubt." People v. Emmons (1910), 13 C.A. 487, 110 P. 151.
"A defendant in a criminal action cannot be compelled to be a
witness against himself and his refusal cannot be used against
him." People v. Keko (1915), 27 C.A. 351, 149 P. 1003.
"A defendant is not required to take the stand." People v.
Bracklis (1921), 54 C.A. 40, 200 P. 1062.
"No unfavorable inference can be drawn from the failure of the
defendant to testify." People v. Bracklis (1921), 54 C.A. 40, 200
P. 1062.
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Collected Court Citations