Category Archives: Legal Tidbits

People v. Brausam, 83 Ill.App.2d 354, 227 N.E.2d 533

Appellate Court of Illinois, Second District.

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.

Donald R. BRAUSAM, Defendant-Appellant.

Gen. No. 66-149 M.

 

June 14, 1967.

 

Prosecution for drag racing. From a judgment of conviction of the Circuit Court, Lake County, Eugene T. Daly, J., the defendant appealed. The Appellate Court, Davis, P.J., held that the defendant, who was charged under an unverified uniform traffic ticket and complaint, waived the failure to verify complaint by proceeding to trial without objection to form of complaint, and that the complaint, which merely charged defendant with drag racing in violation of specified statute and gave time and place of offense, was sufficiently precise to apprise accused of nature and elements of offense charged.

 

Affirmed.

Key Issues Decided:

Although code of criminal procedure requires that a complaint be verified in order to sustain a criminal prosecution, lack of verification does not affect jurisdiction of the court. S.H.A. ch. 38, par. 111-3(b).

The right to be charged by a properly verified complaint can be waived and is waived unless accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection. S.H.A. ch. 38, par. 111-3(b).

Defendant charged with drag racing by an unverified uniform traffic ticket and complaint waived right to be tried upon a verified complaint where no pretrial motion was made and defendant proceeded to trial without objection to form of complaint. S.H.A. ch. 16, §§ 81-85; ch. 38, § 111-3(b); ch. 95 1/2 , § 145.1; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, § 102.1, par. C.

Although defendant contended that complaint failed to set forth nature and elements of the offense charged as required by statute, reviewing court was required to decide only if complaint was so defective that it did not charge an offense, where that was issue raised by defendant’s motion in arrest of judgment. S.H.A. ch. 38, § 111-3(a).

The purpose of statute and constitutional provision requiring complaint to set forth nature and elements of offense charged is to make certain that accused will be adequately informed of nature and elements of offense charged against him so that he may prepare his defense and protect himself from double jeopardy. S.H.A. ch. 38, § 111-3(a); S.H.A.Const. art. 2, § 9.

Whether accused is adequately informed of nature and elements of the offense charged must be determined by substance of charge and not by mere technicalities of its language. S.H.A. ch. 38, § 111-3(a); S.H.A.Const. art. 2, § 9.

Statutory requirement that complaint set forth nature and elements of offense charged is met if indictment, information or complaint charges offense in language of statute when that statute sufficiently particularizes offense so that defendant is notified with reasonable certainty with what he is charged. S.H.A. ch. 38, § 111-3(a).

A charge solely in language of statute is insufficient only where statute does not describe acts which constitute crime or where by generality of statute it may embrace acts which statute does not intend to punish. S.H.A. ch. 38, § 111-3(a).

Legislative enactments providing procedures for getting persons into court without necessity and inconvenience of immediate arrest, and court rule implementing such procedures, being pari materia were to be construed together in determining intent of Legislature. S.H.A. ch. 38, §§ 107-11, 107-12; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, § 102.1, par. C.

Primary object of statutory construction is to ascertain and give effect to legislative intent, and court should consider reason or necessity for enactment, contemporaneous conditions, existing circumstances and object sought to be obtained by statute.

Court was required to presume that statutes and court rule relative to procedures for judicial processing of minor offenses related to one subject and were governed by one policy and spirit and that Legislature intended the several statutes and court rule to be consistent and harmonious. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, § 102.1, par. C.

Traffic ticket and complaint charging defendant with drag racing in violation of specified statute was sufficiently precise to apprise accused of nature and elements of offense charged. S.H.A. ch. 38, § 111-3(a), ch. 95 1/2 , § 145.1.

Charge made on uniform traffic ticket and complaint form and charge in quasi criminal cases and misdemeanors, where accused is brought into court by notice or summons, and without necessity of arrest, need not be set forth with the same technical precision required in an indictment, verified complaint or information. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12, 111-3(a, b).

Charge made on uniform traffic ticket and complaint form and charge in quasi criminal cases and misdemeanors must inform accused of nature and elements of the offense with which he is charged, but charge may be simply stated by reference to commonly used name for offense along with reference to statute or ordinance allegedly violated and time and place of violation. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12, 111-3(a, b).

If charge in traffic and other minor criminal cases sets forth nature and elements of offense charged against accused so that he may prepare his defense and be assured of constitutional privilege against double jeopardy statutory provision requiring that charge set forth nature and elements of offense has been complied with under informal procedure for traffic violations, quasi criminal cases and other misdemeanors. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12, 111-3(a, b).

Case:

This is an appeal from a judgment entered by the trial court finding the defendant, Donald R. Brausam, guilty of drag racing in violation of the provisions of section 48.1 of the Uniform Act Regulating Traffic on Highways.   (Ill.Rev.Stat.1965, ch. 95 1/2, par. 145.1.)

The charge against the defendant was initiated by an unverified ‘Illinois Uniform Traffic Ticket and Complaint.’ It was in the form prescribed by Supreme Court Rule, par. C, relating to ‘Procedures in Traffic Cases, Quasi-Criminal Cases and Certain Misdemeanors.’ (S.H.A. ch. 110, par. 102.1; also see: Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.) The defendant contends that the judgment *358 should be reversed in that he had a right to be tried upon a verified complaint, and further, that the complaint was fatally defective since it did not adequately charge the offense of ‘drag racing.’

No pretrial motion was made by the defendant. He proceeded to trial without objection to the form of the complaint. After judgment, he filed a motion in arrest of judgment, asserting, among other things, that the complaint was not verified and that it failed to state a criminal or quasi-criminal offense within the statute under which he was charged.

It is readily apparent that the Supreme Court Rule governing procedures in traffic cases, quasi-criminal cases and certain misdemeanors,**536 does not contemplate that the Illinois Uniform Traffic Ticket and Complaint be verified. The court, in People v. Harding, 34 Ill.2d 475, 216 N.E.2d 147 (1966), made an exhaustive analysis of its Rule and the statutes pertaining to the same subject matter. (Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.; ch. 38, pars. 107-9, 107-11, 107-12 and par. 111-3(a)(b).) The court there pointed out that there is no constitutional provision requiring verification of the complaint which follows an arrest without a warrant. So far as the relevant constitutional provisions are concerned, they may require a sworn complaint as a prerequisite to the issuance of an arrest warrant, but they do not purport to lay down any jurisdictional prerequisites governing the institution of a criminal prosecution. The court stated at pages 482 and 483, 216 N.E.2d at pages 151 and 152

‘The Code of Criminal Procedure, enacted in 1963, retains the substance of the former statutory provisions with respect to the issuance of arrest warrants upon complaints and informations. (Ill.Rev.Stat.1965, chap. 38, par. 107-9.) But it also provides for the use of a summons, or a notice to appear, as ‘procedures for getting persons into court without*359 the necessity and inconvenience of an immediate arrest.’ (S.H.A., chap. 38, pars. 107-11; 107-12, Committee Comments.) Although, as we have held, there is no constitutional requirement that a complaint must be verified in order to sustain a criminal prosecution, the Code continues the statutory requirement of a sworn complaint. Ill.Rev.Stat.1965, chap. 38, par. 111-3(b).

‘In many decisions it has been held that a complaint, defective because it was not verified, or verified upon information and belief, did not affect the jurisdiction of the court and that the right to be charged by a properly verified information can be waived. (Citations.) So far as the objection of want of verification is concerned, therefore, the unverified traffic ticket complaint used in this case would have sufficed to give the court jurisdiction if the defendant had waived the objection by going to trial without raising it, or by a plea of guilty.

‘The adoption by this court of the rule which authorized the use of the unverified form of Illinois Uniform Traffic Ticket and Complaint was not intended to dispense with the statutory requirement of a verified complaint, and we hold that a defendant who does not waive, by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a complaint which states upon the oath of the complainant the facts constituting the offense charged.’

The most that can be said for the requirement of verification of a traffic ticket and complaint, such as that before us, is that the Code of Criminal Procedure continues the requirement that a complaint be verified in order to sustain a criminal prosecution. (Ill.Rev.Stat.1965, ch. 38, par. 111-3(b).) The lack of verification, however, does not affect the jurisdiction of the court. The *360 right to be charged by a properly verified complaint can be waived and, in fact, is waived unless the accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection.   People v. Harding, supra, 482, 483, 216 N.E.2d 147; Village of Willowbrook v. Miller, 72 Ill.App.2d 30, 34, 217 N.E.2d 809 (1966). The want of verification was not appropriately raised in the case at bar, and accordingly, we hold that the defendant has waived any right to object to the lack of verification.

The defendant further contends that the complaint was defective on the ground that it failed to sufficiently charge him with the offense of drag racing, in that an essential element thereof is that the defendant engaged in a racing competition; and that the omission of this allegation in the complaint rendered it fatally defective. The **537 traffic ticket and complaint charged the defendant with committing the offense of ‘drag racing in violation of section 48.1 of the U.A.R.T., on July 25, 1966, at 9:35 P.M., at North Avenue-west of Trevor Rd. in Lake County, Illinois.’ (Ill.Rev.Stat.1965, ch. 95 1/2, par. 145.1.)

Section 111-3(a) of the Criminal Code (Ill.Rev.Stat.1965, ch. 38, par. 111-3(a)) sets forth the requisites for a valid criminal complaint:

‘A charge shall be in writing and allege the commission of an offense by:

(1) Stating the name of the offense;

(2) Citing the statutory provision alleged to have been violated;

(3) Setting forth the nature and elements of the offense charged;

(4) Stating the time and place of the offense as definitely as can be done; and

(5) Stating the name of the accused, if known, and if not known, designate the accused by *361 any name or description by which he can be identified with reasonable certainty.’

Defendant’s contention is that the requirements of sub-paragraph (3) above are not met, as the necessary element of racing or competition is not alleged.  In answering defendant’s contention, we must keep in mind that the question before this court is whether the complaint was so defective that it did not charge an offense.  That was the issue raised by defendant’s motion in arrest of judgment and it is all that we are called upon to decide.   People v. Blanchett, 33 Ill.2d 527, 530, 531, 212 N.E.2d 97 (1965).

The purpose of section 111-3(a) of the Criminal Code, as that of section 9 of Article II of the Illinois Constitution, S.H.A., is to make certain that the accused will be adequately informed of the nature and elements of the offense charged against him so that he may be able to prepare his defense and protect himself from double jeopardy by subsequent prosecutions for the same offense.   People v. Griffin, 36 Ill.2d 430, 432, 223 N.E.2d 158 (1967); People v. Peters, 10 Ill.2d 577, 580, 141 N.E.2d 9 (1957); People v. Deakyne, Ill.App., 227 N.E.2d 531 (1967); People v. Laczny, 63 Ill.App.2d 324, 330, 331, 211 N.E.2d 438 (1965).  Whether this objective is attained and the requirements of the section met must be determined by the substance of the charge and not by mere technicalities of its language.   People v. Billingsley, 67 Ill.App.2d 292, 299, 213 N.E.2d 765 (1966). ‘It is clear that many of the old pleading technicalities are no longer required under the existing law. Centuries ago, the punishment was severe and the courts attempted to compensate by strictly construing the pleading requirements. The main requirement today is simplicity in order that the accused will understand the charge against him.’   People v. Blanchett, supra, 33 Ill.2d 532, 533, 212 N.E.2d 100.

*362It is sufficient for the purposes of section 111-3(a), and the safeguard it is designed to protect, that the indictment, information or complaint charge the offense in the language of the statute when that statute sufficiently particularizes the offense so that the defendant is notified with reasonable certainty with what he is charged.   People v. Sims, 393 Ill. 238, 241, 66 N.E.2d 86 (1946); People v. Billingsley, supra, 67 Ill.App.2d 298, 213 N.E.2d 765. It is only where the statute does not describe the acts which constitute the crime. ( People v. Griffin, supra, 36 Ill.2d 432, 433, 223 N.E.2d 158; People v. Green, 368 Ill. 242, 254, 255, 13 N.E.2d 278, 115 A.L.R. 348 (1938)), or where, by the generality of the statute it may embrace acts which the statute does not intend to punish, that a charge, solely in the language of the statute, is not sufficient.   People v. Peters, supra, 10 Ill.2d 580, 581, 141 N.E.2d 9; People v. Billingsley, supra, 67 Ill.App.2d 299, 213 N.E.2d 765.

**538 However, cases arising under the U.A.R.T., seldom come before reviewing courts.  Section 137 of the Act provides that it is a misdemeanor for any person to violate any of the provisions of the Act, unless by said Act, or other law of this State, such violations are declared to be a felony.   (Ill.Rev.Stat.1965, ch. 95 1/2, par. 234.) Ordinarily, the amount of the fine is small and the offense is not of a serious nature.  Such circumstance is true with reference to certain other misdemeanors and quasi-criminal offenses.

To expedite the handling of such cases, the Supreme Court adopted the Rule in question which sets forth the form of the ‘Illinois Uniform Traffic Ticket and Complaint’ and the Rule related generally to traffic cases, quasi-criminal cases and certain misdemeanors. Contemporaneously, the legislature provided ‘procedures for getting persons into court without the necessity and inconvenience of an immediate arrest.’ (S.H.A. ch. 38, pars. 107-11, 107-12 Committee Comments.) It also designated officers to let persons charged with quasi-criminal offenses and misdemeanors to bail and to accept*363 and receipt for fines on pleas of guilty in minor offenses, in accordance with schedules established by Court Rule. (Ill.Rev.Stat.1965, ch. 16 pars. 81-85 incl.) The Court Rule which the legislature referred to was the Rule heretofore cited.

This Rule and these legislative enactments indicate that a less formal procedure is necessary in the handling of such minor offenses, whereby the person accused may get into court by the traffic ticket, notice to appear or by summons, and without the necessity of arrest. If the person does not obey the notice or summons, then an arrest warrant may issue.

The statement of the issue before us for decision, and the statutes and Court Rule involved, disclose that the overall legislation and Rule are not without ambiguity.  The legislative enactments and the Court Rule, being in pari materia, should be construed together to determine the intent of the legislature.  The primary object of statutory construction is to ascertain and give effect to such intent, and courts should consider the reason or necessity for the enactment, the contemporaneous conditions, existing circumstances, and the object sought to be obtained by the statutes.   People ex rel. Krapf v. Hayes, 13 Ill.2d 143, 147, 148 N.E.2d 428 (1958).  We must presume that the several statutes and the Court Rule relative to procedures for the judicial processing of minor offenses within the area herein defined, relate to one subject and are governed by one policy and spirit; and that the legislature intended the several statutes and the Court Rule to be consistent and harmonious.   Scofield v. Board of Education, 411 Ill. 11, 20, 103 N.E.2d 640 (1952); Ashton v. County of Cook, 384 Ill. 287, 298, 51 N.E.2d 161 (1943).

The population increase in Illinois over the past decade, a deeper understanding of the use of sanctions in law enforcement, and the increase in the use of automobiles over our improved highways in an effort to meet the *364 necessity for travel in our complex and growing society are, in part, the reason for getting persons into court without the necessity and inconvenience of an arrest, for letting persons charged with traffic violations, other misdemeanors and quasi-criminal offenses to bail, and for the informal receipting for fines on pleas of guilty in such minor offenses.

From the pertinent legislation and rule, we believe that the legislature intended to create, within our criminal procedure, an expeditious method for the enforcement of traffic offenses, misdemeanors and quasi-criminal offenses, which would relax the rigidity of the requirements of our criminal law for the convenience of the individual, without an impingement upon his rights and without sacrifice of the welfare of society generally. We believe that within the **539 area thus defined by these legislative enactments and the Court Rule, the legislative purpose should be effectuated; and that the principles of construction must not be too literal.

The complaint charged the defendant with ‘drag racing’ as heretofore specified. Under our construction of the aforesaid pertinent statutes and the Court Rule, we find that the charge was sufficiently precise to apprise the accused of the nature and elements of the offense charged. Section 48.1 of the statute clearly defines the meaning of ‘drag racing’ as used in the complaint, as follows:

‘For the purpose of this Section ‘drag racing’ means the act of 2 or more individuals competing or racing on any street or highway in this State in a situation in which one of the motor vehicles is beside or to the rear of a motor vehicle operated by a competing driver and the one driver attempts to prevent the competing driver from passing or overtaking him or one or more individuals competing in a race against time on any street or highway in this State.’

*365 The charge of ‘drag racing’ does not include the multitude of different acts which would leave the defendant uncertain as to the particular act which constituted the basis of the offense charged. Such offense is not susceptible of the uncertainty which might result from a charge of ‘reckless driving.’   People v. Griffin, supra, 36 Ill.2d 431, 432, 223 N.E.2d 158; People v. Deakyne, Ill.App., 227 N.E.2d 531 (1967) and cases cited therein. Under the ‘reckless driving’ charge, the nature and elements of the offense are left to doubt.

However, the offense of ‘drag racing’ as defined by the statute is not fragmented into many separate and different acts, any one of which may constitute the offense. The statute defines one total offense, the essence of which is the act of competing or racing on any street or highway. We believe that the charge as specified on the U.A.R.T. form clearly apprised the accused of the particular acts on which the charge was based. We hold that the traffic ticket and complaint was not so defective as to fail to charge an offense.

While a person accused of a traffic violation has every right to be informed of the nature and elements of the offense charged against him, we are not unmindful of the circumstances under which traffic tickets are normally issued, and we recognize that they are drafted by laymen and may not be drawn with the care and precision of an indictment, information or complaint charging a more serious offense.

The charge made on the Uniform Traffic Ticket and Complaint form and the charge in quasi-criminal cases and misdemeanors where the accused is brought into court by notice or summons-and without the necessity of arrest-need not be set forth with the same technical precision required in an indictment, verified complaint or information. The charge under the informal procedure for handling these minor offenses must inform the accused of the nature and elements of the offense with which he is charged, but the charge may *366 be simply stated by reference to the commonly used name for the offense, along with reference to the statute or ordinance alleged to have been violated and the time and place of the violation. If the charge stated sets forth the nature and elements of the offense charged against the accused so that he may prepare his defense and be assured of his constitutional privilege against double jeopardy, then we believe that section 111-3(a)(3) of the Criminal Code has been complied with under this informal procedure for processing traffic violations, quasi-criminal cases and other misdemeanors.

**540 The machinery of government cannot adequately function without a little play in its joints. Without such procedures, the rigid technicalities of the Criminal Code would overtax our judicial system. With the flexibility of our criminal procedures in this limited area of law enforcement, we can adapt the wisdom and experience of the past to these complex problems of the present. Any person may enjoy all of the protective benefits of our Criminal Code by demanding that he be prosecuted by a verified complaint, or he may waive such rights. If an accused elects to proceed to trial under these informal procedures, he is still entitled to be adequately informed of the nature and elements of the offense, but the charge need not be stated with the specificity required in an indictment, verified complaint or information.

In Miranda v. State of Arizona, 384 U.S. 436, at page 467, 86 S.Ct. 1602, at page 1624, 16 L.Ed.2d 694, at page 720 (1966), the court stated:

‘We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.’

Thus, Miranda not only sets forth mandatory guidelines for the administration of criminal justice, but also exhorts*367 the States to exercise their own creative methods to bring about independent and constitutionally permissible solutions of such problems. If adequately solved through the construction of existing legislation and court rule, such problems may never reach the federal constitutional level. Such is our intent and purpose herein.

Accordingly, the judgment is affirmed.

Judgment Affirmed.

ABRAHAMSON and THOMAS J. MORAN, JJ., concur.

Ill.App. 1967.

People v. Brausam

83 Ill.App.2d 354, 227 N.E.2d 533

Advertisements

Citizens of the Constitution: Citizen of the United States

CITIZENS OF THE CONSTITUTION OF SEPTEMBER 17, 1787: CITIZEN OF THE UNITED STATES

The first citizens mentioned in the Constitution of September 17, 1787 are the members of Congress.  That Constitution requires Representatives in Article I Section 2 Clause 2 and Senators in Article I Section 3 Clause 3 to be Citizens of the United States. A Representative must be a Citizen of the United States for 7 years and a Senator must be a Citizen of the United States for 9 years.


The Constitution of September 17, 1787, also, requires a Representative to "be an Inhabitant of that State in which he shall be chosen," which precludes any requirement that a Representative, also, be a citizen of that State in which he shall be chosen. A Senator must, also, "when elected be an Inhabitant of that State for which he shall be chosen."


What is a Citizen of the United States? As any State citizen must owe exclusive allegiance to a State, members of Congress must owe allegiance to the Confederacy above anyone of thirteen original States. A Representative or Senator must declare himself and be only a Citizen of the United States of America. Such a declaration is never made by any member of Congress, because the Constitution of September 17, 1787 is never adopted by a legitimate Congress and first President, who must reside within the United States for 14 Years, which would be July 4, 1790.


The Confederacy known as the United States of America was established on March 1, 1781, when Maryland became the thirteenth and last State of the original thirteen to ratify the Articles of Confederation of November 15, 1777, and is, thereafter recognized by other nation States of the world. Nine years from March 1, 1781 the first Senators would be able to meet the qualifications for Senators set out in Article I Section 3 Clause 3.


The Constitution of September 17, 1787 was established between the first nine States ratifying that Constitution, which occurred on June 21, 1788. No Representative or Senator could satisfy the citizenship requirements set out in Article I of the Constitution of September 17, 1787.


A "Citizen of the United States," which both a Representative and a Senator must be, can only owe allegiance to the Articles of Confederation of November 15, 1777, as the Constitution of September 17, 1787 can only be adopted by Senators taking a written oath after March 1, 1790. The person who is to fill the Article II Section 1 Clause 5 Office of President can only do so 14 Years after July 4,
1776, which would be July 4, 1790.


Although the Constitution of September 17, 1787 clearly requires Representatives and Senators to be Citizens of the United States, which would mean owing allegiance to the Confederacy and the Articles of Confederation of November 15, 1777. No member of Congress and no President is ever held to that requirement. The failure of Congress and the President to meet and qualify pursuant to the Constitution of September 17, 1787 prevents the adoption of that Constitution.


Dr. Eduardo M. Rivera

Social Security and Tax Withholding are Voluntary Within the 50 States

SOCIAL SECURITY AND TAX WITHHOLDING ARE VOLUNTARY WITHIN THE 50 STATES

The Social Security Act, which is part of Title 42 of the United States Code, was enacted in 1935 as a U.S. government‑sponsored, voluntary pension program for the benefit of individuals who wished to VOLUNTARILY participate in the program. The Act is administered by the Social Security Administration which handles the administration and payment of benefits under the provisions of the law.

The tax upon which the old age benefits is based is collected by the Internal Revenue Service under the provisions of Title 26 of the United States Code, otherwise known as the Internal Revenue Code (“IRC”).

Monies collected by the IRS are not sent to the Social Security Administration to fund their administrative and disbursement activities, but rather end up in the general fund along with other taxes collected. An accounting “gimmick” is created to lead the public to believe that the monies paid in are held in a “trust fund”.

There is no provision in the United States Constitution for the federal government to be in the insurance business. Although it may be technically correct that a so-called “trust fund” exists, the truth is that it contains no monies or other assets, only governmental IOU’s promising to pay money to itself.

Social Security is NOT a contract as some allege, but a political promise upon which Congress could renege at any time. Monies disbursed by SSA must be appropriated by Congress each year as needed. Since no contractual obligation exists for the payment of any benefits, technically the benefits could be terminated at any time, if Congress did not appropriate the funds.

This ALERT deals primarily with those statutes relative to the imposition and collection of the tax. References to Code sections are those found within Title 26 of the United States Code, which is a codification of the Statutes at Large as enacted by the Congress of the United States. All Code sections shown herein are copied directly from Title 26, United States Code, precisely as printed therein.

All Internal Revenue taxes, including the personal and corporate income taxes, self-employment taxes, as well as the so‑called Social Security tax, are imposed and collected under Title 26, United States Code, also known as the Internal Revenue Code (“IRC”).

The Social Security tax is imposed by the Code sections in chapter 21, subtitle C of the IRC titled: “FEDERAL INSURANCE CONTRIBUTIONS ACT” or “FICA”.

Before examining the actual wording contained in these sections, it is important to understand that courts have repeatedly held that a statute means only that which is stated in the statute and nothing more.

Southerland’s Rules of Statutory Construction, an authoritative legal guidebook, under section 66.01 titled “Strict Construction of Statutes Creating Tax Liabilities” explains the limited application of tax laws. The guidebook refers to the U.S. Supreme Court decision of Gould v. Gould, 245 U.S. 151, which states:

“In the interpretation of statutes levying taxes it is the established rule not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operation so as to embrace matters not specifically pointed out. In case of doubt, they are construed most strongly against the government and in favor of the citizen.”

So the Supreme Court tells us that IRC sections mean only that which is stated; nothing else can be added to that which is stated in the Code section.

With this Supreme Court ruling in mind, let’s look at the wording of sections 3101(a) and 3111(a) which are imposition statutes for the (so-called Social Security) FICA tax — section 3101(a) applying to employees and 3111(a) to employers, respectively.

(CAPITALIZATION for emphasis is added to certain phrases, Code sections and court decisions in this article.)

Sec. 3101. Rate of Tax.

Sec. 3111. Rate of Tax.

(a)  Old-age, survivors, and disability insurance. In addition to other taxes, there is hereby imposed on every employer an excise tax, with respect to having individuals in his employ, EQUAL TO THE FOLLOWING PERCENTAGES OF THE WAGES (as defined in section 3121(a)) paid by him with respect to employment (as defined In section 3121(b)) —

The popular mistaken belief is that the FICA tax, which is imposed on the income of “employees” under section 3101(a), is a “wage” tax. However, a reading of section 3101(a) shows clearly that the tax is not, in fact, a WAGE tax but rather is imposed on “income” which is MEASURED by “wages”. Hence, the FICA tax is simply another INCOME tax.

However what is of vital importance in both these sections is the limited application of the terms “wages” (as defined in section 3121(a)) and “employment” (as defined in section 3121(b)). The definitions of these terms create a TERRITORIAL limitation on the application of the tax as we will see.

Section 3121 states:

Sec. 3121. Definitions.

Note that the term “wages” identifies monies paid for the activity identified by the term “employment” which is defined in section 3121(b), the essential part of which is reproduced as follows:

Sec. 3121 (b). Employment.

For purposes of this chapter, the term “employment” means any service, of whatever nature, performed (A) by an EMPLOYEE for the person employing him, irrespective of the citizenship or residence of either,

(I) WITHIN THE UNITED STATES, or

(II) on or in connection with an American vessel or American aircraft under a contract of service which is entered into WITHIN THE UNITED STATES or during the performance of which and while the employee Is employed on the vessel or aircraft It touches at a port in THE UNITED STATES ….

As shown, the term “employment” means a service performed by one identified by the term “employee” within the “United States …”. United States is also a term used in this chapter as defined in section 3121(e)(2):

Sec. 3121(e)(2).

For purposes of this chapter —

(2) United States. The term “United States” when used in a geographical sense includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam and American Samoa.

The definition of the term “United States” lists those areas in which the activity described by the term “employment” takes place. The definition lists ONLY the Commonwealth of Puerto Rico, the Virgin Islands, Guam and American Samoa as the areas in which the tax imposed by this chapter applies. Before examining the provisions of this law, it is essential to understand the use of words as “terms” when used in laws.

When words are used as legal terms in order to establish their clear and unambiguous meanings, precise definitions of those terms are always included in the law. These definitions explain the exact meanings of terms used in the IRC. As quoted earlier in this article, the Supreme Court in the decision of Gould v. Gould established that, in taxing statutes, definitions of terms used in the statutes cannot be expanded by implication. Nothing can be added to the definition of a term; it means only that which is stated, regardless of any belief to the contrary.

At first, it may be hard to believe that the definition of the term “United States” could be limited to mean ONLY the four island possessions of Puerto Rico, the Virgin Islands, Guam and American Samoa. But, that is exactly what this definition means because statutes mean ONLY that which is stated, nothing more, as set forth by the Supreme Court in Gould v. Gould, already discussed. Also, there are other decisions where the U.S. Supreme Court has addressed the principle of the limited meaning of statues.

The U.S. Court of Appeals for the Ninth Circuit explained two such decisions as follows:

“We begin our interpretation by reading the statutes and regulations for their plain meaning. The plain meaning rule has its origin in U.S. v. Missouri Pacific Railroad, 278 U.S. 269 (1929). There the Supreme Court stated that “where the language of an enactment is clear and construction according to its terms does not lead to absurd or impracticable consequences, the WORDS EMPLOYED ARE TO BE TAKEN AS THE FINAL EXPRESSION OF THE MEANING INTENDED.” … The principle was more recently affirmed in Dickinson v. New Banner Institute, Inc., 460 U.S. 103,103 S.C. 986, 74 L.Ed.2d 845 (1983), rehearing denied, 461 U.S. 911,103 S.C. 1887,76 L.Ed.2d 815 (1983), where the Court stated, “In determining the scope of a statute, one is to look first at its language. If the language is unambiguous … IT IS TO BE REGARDED AS CONCLUSIVE UNLESS THERE IS A CLEARLY EXPRESSED LEGISLATIVE INTENT TO THE CONTRARY.” United States v. Varlet, 780 F.2d 758 on P.761 (9th Cir. 1986)

Also, Code section 3121(e)(2) uses the term “includes” which, in law, is a word of CONFINEMENT and not EXPANSION. This is exactly what the U.S. Supreme Court said in the decision of Montello Salt v. Utah, 221 U.S. at page 455, wherein they stated:

“‘Include’ or the participial form thereof, is defined ‘to comprise within’; ‘to hold’; ‘to contain’; ‘to shut up’; and synonyms are ‘contain’; ‘enclose’; ‘comprise’; comprehend’; ’embrace’; ‘involve”‘.

This U.S. Supreme Court decision, and others in support of its ruling that “includes” is a word of limitation, also support the Court’s decision in Gould v. Gould that there can be no broadening of the statute by implication. Legislative drafters in the Internal Revenue Service who write the tax bills know very well this “plain meaning rule” of statutory interpretation.

If the term “United States” could constitutionally include the 50 STATES OF THE UNION, they would have specifically included them. As an example of this, Code section 4612, which relates to a tax on crude oil, defines the term “United States” as: “the FIFTY STATES, the District of Columbia, the Commonwealth of Puerto Rico, any possession of the United States, the Commonwealth of the Northern Mariana Islands and the trust territory of the Pacific Islands.”

This shows that when the term “United States” means the fifty States of the Union, it says so. Consequently, it is very clear that the term “United States”, when used to describe the areas where the “Social Security” tax applies, means, and IS LIMITED TO, the four island possessions which are the only areas listed in the term’s definition. Therefore, according to the wording of the law itself, the FICA tax does not apply within the fifty States of the Union.

This makes sense when one understands the limitations of the direct taxing authority of the Federal government as contained in the Constitution under Article I, Section 2, Clause 3 and Article I, Section 9, Clause 4, both of which prohibit any Federal direct tax within the States of the Union other than those laid on the 50 State governments in proportion to their respective populations.

The FICA tax is administered by the IRS as if it were a direct tax on individuals. To be constitutional, any direct tax on individuals must be imposed by law ONLY OUTSIDE the 50 States of the Union: i.e. only in the four listed island possessions despite the IRS’ deception of the public into falsely believing the tax applies WITHIN the 50 States of the Union.

IRC section 7655 also supports the limited meaning of the term “United States” as respects both the self‑employment tax imposed in chapter 2 of the IRC, as well as the FICA tax imposed in chapter 21. Section 7655 states:

Sec. 7655. Cross references.

(a) Imposition of tax in possessions. For provisions imposing tax in POSSESSIONS, see —

(1) Chapter 2, relating to self‑employment tax;

(2) Chapter 21, relating to the tax under the Federal Insurance Contributions Act.

Clearly this section also shows the application of both the self‑employment tax and the FICA tax imposed under chapters 2 and 21 to be limited to “possessions” (Puerto Rico, Virgin Islands, Guam, and America Samoa, as listed in IRC section 3121(e)(2) defining the TERM “United States”).

SECTION 1402(d) — THE KEY TO UNDERSTANDING THE GEOGRAPHICAL LIMITATIONS OF CHAPTER 24 –- WITHHOLDING OF TAX

In the Code, there are many definitions that are limited in their applications by words such as “for purposes of this chapter”, “for purposes of this sub-chapter” and “for purposes of this sub-part”. In contrast, IRC section 1402 contains definitions of terms upon which there are NO SUCH LIMITATIONS upon their application, so the definitions therein apply THROUGHOUT the ENTIRE IRC. Section 1402(d) states as follows:

Sec. 1402(d). Employee and wages.

The term “employee” and the term “wages” shall have the same meaning as when USED in chapter 21 (sec. 3101 and following, relating to Federal Insurance Contributions Act).

Note the absence in this Code definition of any words of limitation such as “for purposes of this chapter” or “for purposes of this subchapter”. This definition means, therefore, that WHENEVER AND WHEREVER the terms “employee” and “wages” are used ANYWHERE throughout the IRC, their applications are limited to those people involved in activities within the four island possessions ONLY, the same as in chapter 21, the FICA tax chapter.

The Internal Revenue Code chapter which relates to withholding is chapter 24, titled “COLLECTION OF INCOME TAX AT SOURCE”. It is extremely important to note that this chapter contains NO section imposing any tax. Rather, the entire chapter is written to establish and authorize provisions for withholding of tax merely as a method for the payment of taxes which may be imposed in OTHER sections of the IRC.

Whenever a tax is imposed, there is always a section containing words such as “there is hereby imposed a tax ….” But, in chapter 24, no such wording exists in any section; so clearly the entire chapter merely sets forth the PROCEDURES FOR COLLECTING TAXES IMPOSED ELSEWHERE in the IRC by the withholding methods described in the Code sections of the chapter. Provisions of this withholding chapter are applicable only to “employees” as defined in Code sections 1402(d) shown above, and 3401(c) reproduced here:

Sec. 3401(c). Employee.

For purposes of this chapter, the term “employee” includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation.

It is revealing that this definition INCLUDES the term “State” which is defined in Code section 7701(a)(10) as the District of Columbia (ONLY). Remember that “includes,” as a word used in laws, is a word of CONFINEMENT, not of ENLARGEMENT according to the Supreme Court in Montello Salt v. Utah, as discussed earlier. Hence this definition limits the application of the term “employee” to those working for the Federal government, for the District of Columbia, for U.S. possessions, and officers of a government owned corporation.

Section 3401(d) identifies the “employer” as one for whom the “employee” works. This means that the meaning of the term “employer” is limited to those entities listed in section 3401(c) — the U.S. government, District of Columbia, etc. The term does NOT apply to any non‑government employer or business. On the basis of these definitions alone, most of the nation’s population is not subject to the withholding provisions in this chapter.

In addition to those limitations on the application of the term “employee” shown above, section 1402(d) LIMITS the application of the term “employee” and the term “wages” to activities within the four island possessions ONLY. Therefore, the withholding provisions of chapter 24 can apply only to those working for the Federal government or the District of Columbia, etc., within these four island possessions — not within the fifty States of the Union.

IRC section 3402(a)(1) contains tricky wording which could readily lead businesses and individuals into erroneously believing that they are required to deduct and withhold taxes from the pay of those they hire. It is worded as follows:

Section 3402. Income tax collected at source.

(a) Requirement of withholding.

(1) In general. Except as otherwise provided in this section, every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with tables or computational procedures prescribed by the Secretary. Any tables or procedures prescribed under this paragraph shall — ….

Note that this section 3402(a)(1) says that the “employer” (Federal government, District of Columbia, etc.) shall deduct and withhold from “wages” a tax determined in accordance with the Secretary’s tables and computational procedures. We previously showed that the meaning of the term “wages” is limited by section 1402(d) to payments for activities occurring within the four island possessions ONLY, the same as provided in chapter 21 imposing the so-called Social Security (FICA) tax. These “tables and procedures” are authorized to be provided by the Secretary under section 3402(p)(3):

Sec. 3402(p)(3). Authority for other voluntary withholding.

The Secretary is authorized by regulations to provide for withholding —

(A) from remuneration for services performed by an employee for the employee’s employer which (without regard to this paragraph) does not constitute wages, and

(B) from any other type of payment with respect to which the Secretary finds that withholding would be appropriate under the provisions of this chapter, IF THE EMPLOYER AND EMPLOYEE, OR THE PERSON MAKING AND THE PERSON RECEIVING SUCH OTHER TYPE OF PAYMENT AGREE TO SUCH WITHHOLDING. Such agreement shall be in such form and manner as the Secretary may by regulations prescribe. For purposes of this chapter (and so much of subtitle F as relates to this chapter), remuneration or other payments with respect to which such agreement is made shall be treated AS IF THEY WERE WAGES PAID BY AN EMPLOYER TO AN EMPLOYEE to the extent that such remuneration is paid or other payments are made during the period for which the agreement is In effect.

Note that the Secretary is authorized to provide for withholding by issuing tables, computational procedures and other instructional material on withholding that apply ONLY to those who have VOLUNTARILY AGREED to withholding. An agreement exists only when an individual who is hired voluntarily REQUESTS that money be deducted and withheld from his pay for payment of taxes and the one for whom he works completes the agreement by his VOLUNTARY act of collecting money as an unpaid tax collector for the government.

Despite the general mistaken belief that the deduction and withholding of money for taxes is required by law, a simple reading of this Code section shows that such is not the case. Mandatory withholding would conflict with two key provisions in the U.S. Constitution: the Fifth Amendment right to due process states that no person shall be deprived of property (having his pay withheld) without due process of law (a ruling by a court) and the Thirteenth Amendment prohibition against slavery and involuntary servitude, such as being forced to be an unpaid worker (slavery) or an unpaid Federal tax collector.

The use of the words “the person making” and “the person receiving such other type of payment” relates to non‑federal employers and employees who voluntarily “agree to such withholding”. Federal regulation number 31.3402(p)(1) states:

Sub-Section 31.3402(p)-1 Voluntary withholding agreements. (T.D. 7096, filed 3-17-71; amended by TD 7577, filed 12‑19‑78).

(a) In general. An employee and his employer MAY enter into an AGREEMENT under section 3402(p) to provide for the withholding OF INCOME TAX upon payments of amounts described in paragraph (b)(1) of Sub-Section 31.3401(a)-3, made after December 31, 1970. An agreement MAY be entered into under this section only with respect to amounts which are includible in the gross income of the employee under section 61, and must be applicable to all such amounts paid by the employer to the employee. The amount to be withheld PURSUANT TO AN AGREEMENT under section 3402(p) shall be determined under the rules contained in section 3402 and the regulations thereunder.

(b) Form and duration of agreement.

(1)

(i) Except as provided in subdivision (ii) of this subparagraph, AN EMPLOYEE WHO DESIRES TO ENTER INTO AN AGREEMENT under section 3402(p) SHALL FURNISH to his employer Form W-4 (Employee’s Withholding Allowance Certificate) executed in accordance with the provisions of section 3402(f) and the regulations thereunder. The furnishing of such Form W-4 shall constitute a REQUEST FOR WITHHOLDING.

(ii) in the case of AN EMPLOYEE WHO DESIRES TO ENTER INTO AN AGREEMENT under section 3402(p) with his employer, if the employee performs services (in addition to those to be the subject of the AGREEMENT the remuneration for which is subject to mandatory income tax withholding by such employer, or IF the employee wishes to specify that the AGREEMENT terminate on a specific date, the employee shall furnish the employer with a REQUEST for withholding which shall be signed by the employee, and shall contain —

(a) The name, address, and social security number of the employee making the REQUEST,

(b) The name and address of the employer,

(c) A statement that the employee DESIRES WITHHOLDING of Federal income tax, and, if applicable, of qualified State individual income tax (see paragraph (d)(3)(i) of Sub-Section 301.6361-! of this chapter (Regulations on Procedure and Administration)), and

(d) If the employee desires that the AGREEMENT terminate on a specific date, the date of termination of the AGREEMENT. If accepted by the employer as provided in subdivision (iii) of this subparagraph, the REQUEST shall be attached to, and constitute part of, the employee’s Form W-4. An employee who furnishes his employer A REQUEST FOR WITHHOLDING under this subdivision shall also furnish such employer with Form W-4 if such employee does not already have a Form W-4 in effect with such employer.

(iii) No REQUEST for withholding under section 3402(p) shall be effective as an AGREEMENT between an employer and employee UNTIL THE EMPLOYER ACCEPTS THE REQUEST BY COMMENCING TO WITHHOLD from the amounts with respect to which the request was made.

Note the wording in sub-sections (b)(1)(ii) and (iii) of this regulation: “… an employee who desires to enter into an agreement” and “REQUEST for withholding”, “DESIRES withholding” and “mutually agree upon”, all of which clearly and unambiguously show the VOLUNTARY nature of the entire withholding system. The significance of a Form W-4 “Employee’s Withholding Allowance Certificate” is clearly explained in this regulation which states:

“The furnishing of such Form W-4 shall constitute a REQUEST FOR WITHHOLDING ….”

The printed heading on the Form W-4 confirms the voluntary nature of withholding; it states “Employee’s Withholding ALLOWANCE Certificate”. If withholding were mandatory, why would the form be called an “Allowance” Certificate? To “allow” means to “permit”; if the law REQUIRED the withholding of tax from your pay, no PERMISSION or request form would be needed! To have a non‑deceptive, clear‑meaning heading, the words could be rearranged to “Employee’s Certificate ALLOWING Withholding”.

Regulation Section 31.3402(p)(2). states:

Sec. 3402(p)(2). An AGREEMENT under section 3402(p) shall be effective for such period as the employer and employee MUTUALLY AGREE upon. However, EITHER THE EMPLOYER OR THE EMPLOYEE MAY TERMINATE THE AGREEMENT PRIOR TO THE END OF SUCH PERIOD BY FURNISHING A SIGNED WRITTEN NOTICE TO THE OTHER. Unless the employer and employee AGREE to an earlier termination date, the notice shall be effective with respect to the first payment of an amount in respect of which the AGREEMENT is in effect which is made on or after the first “status determination date” (January 1, May 1, July 1, and October 1 of each year) that occurs at least 30 days after the date on which the notice is furnished. If the employee executes a new Form W-4, the request upon which an AGREEMENT under section 3402(p) is based shall be attached to, and constitute a part of, such new Form W-4.

This regulation states that the AGREEMENT “shall be effective for such period as the employer and employee MUTUALLY AGREE UPON”, and that either the employer or the employee “MAY TERMINATE THE AGREEMENT prior to the end of such period by furnishing a signed written notice to the other.” Therefore, it is obvious that the withholding must be REQUESTED by the employee, must be AGREED TO by the employer, and MAY BE TERMINATED BY EITHER BY GIVING WRITTEN NOTICE TO THE OTHER. The regulations merely state that the notice terminating withholding must be a signed, written notice — no particular form is ever required!

HOW NON-GOVERNMENT EMPLOYERS ARE DECEIVED AND INTIMIDATED

Because employers have possession and control over their employees’ earnings before the money is paid over to the employees, the key to the operation of the withholding scam is the deception and intimidation of the employers to withhold money from their employees’ pay even if their employees object to the withholding.

Most employers, as well as their accountants and attorneys, have never studied the IRC carefully enough to understand its complexity. They are not aware of the geographical and other limitations in the Social Security (FICA) tax, and upon the withholding provisions in chapter 24 of the IRC. They do not understand (as explained earlier in this article) that the FICA tax and the withholding provisions apply only within Puerto Rico, the Virgin Islands, Guam and American Samoa; that under chapter 24, withholding is not mandatory for either the employer or the employee, and that the withholding provisions apply ONLY to cases where BOTH the employer and the employee voluntarily agree to the withholding.

If a non‑government employer considers NOT withholding when his employees demand their full pay and consults his accountant, tax lawyer or the IRS about the matter, his attention is usually called to IRC section 3403. This section is a psychological bombshell designed to intimidate the non-government employer into ignoring and defying any employee’s refusal to agree to withholding. IRC section 3403 states:

Sec. 3403. Liability for tax.

The employer shall be liable for the payment of the tax REQUIRED TO BE DEDUCTED AND WITHHELD UNDER THIS CHAPTER, and shall not be liable to any person for the amount of any such payment.

This section usually erroneously convinces non‑government employers that they are personally liable to pay to the IRS the amount the withholding tables specify EVEN IF THEY DO NOT WITHHOLD THE MONEY FROM THEIR EMPLOYEES PAY.

Non-government employers rarely understand that the term “employer” used in this section does not apply to them because the term “employer” as defined in the withholding provisions, means ONLY FEDERAL GOVERNMENT RELATED AGENCIES AND INSTRUMENTALITIES (listed in section 3401(c) quoted earlier in this article).

Even then, withholding applies ONLY within the four island possessions and then only when there is a VOLUNTARY MUTUAL AGREEMENT for withholding requested by the “employee” and agreed to by the “employer”. Because of these facts, there is no way a non‑government employer within the 50 states can be required to withhold tax under chapter 24. He cannot be “LIABLE” for payment of the tax unless he voluntarily acts as an unpaid tax collector for the government.

Summary

The provisions of the Constitution cited heretofore, under Article 1, Section 2, Clause 3 and Article 1, Section 9, Clause 4, prohibit any Federal direct tax on the people or their property within the States of the Union. If it were constitutionally lawful for the Federal government to impose upon us a direct tax on our wages in the fifty States of the Union without being in conflict with these constitutional limitations, why would all the above cited sections clearly show the VOLUNTARY nature of all withholding?

Why, in fact, would the Federal government not have a clear and unambiguous single section in the IRC which would simply say that all of us who work for a living in this country are required to give Big Brother whatever portion of our earnings it decides to take? If such a law were constitutional, it would surely be included in the IRC. Why all the convoluted, complicated provisions showing geographical and other limitations and voluntary “requests” for withholding?

The answer is clear: No such simple taxing statute is possible, because it is constitutionally prohibited to lay a Federal direct tax on the fruits of our labor inside the fifty States of the Union. All the provisions of the IRC and the implementing regulations are strictly limited in order to be in conformity with these constitutional limitations.

As shown herein, the FICA tax imposed on workers under the provisions of section 3101 is a territorial income tax which applies ONLY in the four island possessions. The regulations implementing the withholding provisions in the IRC clearly show that all withholding is voluntary for all individuals ‑‑ both government employees, (under 3402(p)(l)(A)) and non‑government workers (under 3402(p)(3)). In order to institute withholding, a voluntary REQUEST must be made by the employee and ACCEPTANCE must be made by the employer.

After studying these Code sections carefully, and understanding that they say what they mean and mean what they say, the complexity of the Code becomes much easier to unravel. Terms such as “United States”, as defined in section 3121(e)(2), show the restricted meaning of “United States” in chapter 21 to mean the four island possessions only.

A student of the Code will find that FIVE other definitions of the term “United States” therein: Sections 638(1), 927(d)(3), 3306(j)(2), 4612(a)(4) and 7701(a)(9), also define the term “United States” for RESTRICTED USE in various parts of the IRC.

Each definition is different, in one or more ways, from the others as to the geographical boundaries included in the meaning of the term. But, as discussed previously, when a particular Code section intends to include “the fifty States” in its definition, it says so — as in section 4612(a)(4). But, the term “United States” as defined in section 3121(e)(2) limits this FICA tax to the four island possessions.

Because of the dispersed placement of Code sections defining COMMON, EVERYDAY WORDS THAT ARE USED AS LEGAL TERMS in the IRC, most people who read the Code without thorough study are unaware of the unique Code definitions of these terms. These definitions limit the applications of the tax laws so that they do not conflict with the Fifth or Thirteenth Amendments, or with the constitutional prohibition against unapportioned direct taxes inside the fifty States of the Union.

The highly paid and well-trained attorneys who write the tax bills which are given to Congress for enactment are not dummies; they know very well the necessity of drafting these statutes in conformity with these Constitutional limitations forbidding direct taxation of the people within the fifty States.

But, through careful framing of statutes and the use of confusing and misleading words, terms and definitions, they make the IRC almost impossible to understand without deep study. Such actions perpetuate the intentionally created and false popular belief that the Federal government has the constitutional authority to tax us directly in these 50 united States.

But once these Code sections are carefully analyzed, one is reminded of the old adage: “Oh what a tangled web we weave when first we practice to deceive!”

INFORM AMERICANS of their rights! Show this to your friends! Copy this article and distribute it.

Police Have NO Duty To Protect Individuals

THE POLICE HAVE NO DUTY TO PROTECT INDIVIDUALS!

There is much ado, particularly where I live in St. Clair County, about budget shortfalls and the resulting lay-offs of police. The media is commenting on possible “safety” issues and residents express concern over lack of protection. In reality, there is no protection by police. That is not their job. If it were, then there would be some remedy at law for their failing to protect anyone. People have made such a claim in the past and the courts have opined on the fallacious belief that police are for anyone’s protection.

People are responsible for their own protection. It is insane to think that another man will respond to a plea for help from someone he has never met in such fashion so as to prevent imminent harm, or to otherwise identify impending harm and prevent it. People disarm themselves and rely upon an emergency phone call to keep them from violence. Government prefers it that way, because for every case where an individual suffered harm, they ask for more money to pay more police; lending to the perception that one day we all will have our own armed guard.

Now, if police actually addressed crime, that being violent acts perpetrated by people against people rather than legislative prohibitions such as drugs, motor vehicles, ordinance violations… there would be less demand for such police and thereby lower budgets. It has gotten to the point where police inject themselves into our private affairs, not because they care for our safety, but because they are looking for any possible transgression for which to arrest someone and reap financial gain for the State through fines. This also applies to roadside checkpoints where they look for seatbelt violations and impaired drivers. It is an illusion of safety, when it is really a revenue generating endeavor. The State profits from the imperfections of people. I am not threatened by unlicensed or un-belted drivers, nor am I threatened by someone who has a .1 blood alcohol level and competently operates their vehicle.

Fewer police does not mean more safety, it means more freedom to non-violent people. More police means a false sense of security by insecure or frightened people who want everyone to pay for their illusory safety.

Forget about police having a duty to protect you. There is no such thing. I’ve linked to court cases which say the same thing.

“Protect and to serve”, is as binding as “Good to the Last Drop”: IT IS ONLY A SLOGAN as the following court rulings clearly indicate:

Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) (no federal constitutional requirement that police provide protection)

Calogrides v. Mobile, 475 So. 2d 560 (Ala. 1985); Cal Govt. Code 845 (no liability for failure to provide police protection)

Davidson v. Westminster, 32 Cal.3d 197, 185, Cal. Rep. 252; 649 P.2d 894 (1982) (no liability for failure to provide police protection)

Stone v. State 106 Cal.App.3d 924, 165 Cal Rep. 339 (1980) (no liability for failure to provide police protection)

Morgan v. District of Columbia, 468 A.2d 1306 (D.C.App. 1983) (no liability for failure to provide police protection)

Warren v. District of Columbia, 444 A.2d 1 (D.C.App 1981) (no liability for failure to provide police protection)

Sapp v. Tallahassee, 348 So.2d 363 (Fla. App. 1st Dist.), cert. denied 354 So.2d 985 (Fla. 1977); Ill. Rec. Stat. 4-102 (no liability for failure to provide police protection)

Keane v. Chicago, 98 Ill. App.2d 460, 240 N.E.2d 321 (1st Dist. 1968) (no liability for failure to provide police protection)

Jamison v. Chicago, 48 Ill. App. 3d 567 (1st Dist. 1977) (no liability for failure to provide police protection)

Simpson’s Food Fair v. Evansville, 272 N.E.2d 871 (Ind. App.) (no liability for failure to provide police protection)

Silver v. Minneapolis, 170 N.W.2d 206 (Minn. 1969) (no liability for failure to provide police protection)

Wuetrich V. Delia, 155 N.J. Super. 324, 326, 382, A.2d 929, 930 cert. denied 77 N.J. 486, 391 A.2d 500 (1978) (no liability for failure to provide police protection)

Chapman v. Philadelphia, 290 Pa. Super. 281, 434 A.2d 753 (Penn. 1981) (no liability for failure to provide police protection)

Morris v. Musser, 84 Pa. Cmwth. 170, 478 A.2d 937 (1984) (no liability for failure to provide police protection)

Understanding how you not only marry your spouse, you marry the State.

For a view of a St. Clair County, Illinois Marriage License Application click here:  St. Clair County Marriage License Application

All passing comments about my “conspiratorial” misgivings aside, if anyone has the time to review this explanation on what implications pertain to procuring a ?marriage license?, I would appreciate any input, particularly from the legally learned. I find this very interesting and illuminating. I hope you do too. I’ve also attached a “marriage license application” for St. Clair County, Illinois.  If someone could explain why, per box number 4, a SSN is needed to procure a marriage license (possibly because this is pursuant to exercising a govt. privilege or receiving a “benefit” where your U.S. citizen number is required for the excisable activity) and why the jurat mentions the word “intermarry” where Black?s has defined the word to mean:

Intermarry – See Miscegenation.

Black’s Law Dictionary (6th Ed):

Miscegenation – Mixture of races. Term formerly applied to marriage between persons of a different race. [Now called “intermarry”.] Statutes prohibiting marriage between persons of different races have been held to be invalid as contrary to equal protection clause of the Constitution.

So, it seems anyone who is “legally married”, even though their ceremony was presided over by a “minister” who was functioning as an agent of  “this State”, had the ecclesiastical aspect negated by the State?s commandeering of the nuptial inferences of “divine blessing” and converting it to a secular, business, licensed and regulated arrangement wherein the two parties are subjugated to the omnipotent arbiter of a union under God?.aka, “this State”.

Does anyone (married of course) feel deceived or defrauded yet? Are we married folks married to those of the opposite race, and who is the black person. Imaginative role playing? Yowza massa govt.!

ATTACHED MESSAGE CONTENTS FOLLOW

How Did Gov’t Get Involved in “Marriage”, a Matter of Religious Tradition?
About 15 years ago, my former wife of 26-1/2 years, filed for divorce. We had seven children, five daughters and two sons. Our youngest at the time, our second son, was five years old.

At the time, I prepared a counterclaim to the Petition for Dissolution her attorney filed in Domestic Relations (DR) court. I met one afternoon with the head of the Maricopa County Superior Court, Marriage License Bureau, in downtown Phoenix. The marriage license bureau was headed by a young woman of about age 25. I asked her to explain to me the general and statutory implications of the marriage license. She was very cooperative, and called in an Assistant, a tall Black man who at the time was working on an Operations Manual for internal departmental use.

She deferred for most technical explanations to her Assistant. He walked through the technicalities of the marriage license as it operates in Arizona. He mentioned that marriage licensing is pretty much the same in the other states — but there are differences. One significant difference he mentioned was that Arizona is one of eight western states that are Community Property states. The other states are Common Law states, including Utah, with the exception of Louisiana which is a Napoleonic Code state.

He then explained some of the technicalities of the marriage license. He said, first of all, the marriage license is Secular Contract between the parties and the State. The State is the principal party in that Secular Contract. The husband and wife are secondary or inferior parties. The Secular Contract is a three- way contract between the State, as Principal, and the husband and wife as the other two legs of the Contract. He said, in the traditional sense a marriage is a covenant between the husband and wife and God. But in the Secular Contract with the state, reference to God is a dotted line, and not officially considered included in the Secular Contract at all. He said, if the husband and wife wish to include God as a party in their marriage, that is a “dotted line” they will have to add in their own minds. The state’s marriage license is “strictly secular,” he said.

He said further, that what he meant by the relationship to God being a “dotted line” meant that the State regards any mention of God as irrelevant, even meaningless. In his description of the marriage license contract, the related one other “dotted line.”

He said in the traditional religious context, marriage was a covenant between the husband and wife and God with husband and wife joined as one. This is not the case in the secular realm of the state’s marriage license contract. The State is the Principal or dominant party. The husband and wife are merely contractually “joined” as business partners, not in any religious union. They may even be considered, he said, connected to each other by another “dotted line.” The picture he was trying to “paint” was that of a triangle with the State at the top and a solid line extending from the apex, the State, down the left side to the husband, and a separate solid line extending down the right side to the wife, a “dotted line” merely showing that they consider themselves to have entered into a religious union of some sort that is irrelevant to the State. He further mentioned that this “religious overtone” is recognized by the State by requiring that the marriage must be solemnized either by a state official or by a minister of religion that has been “deputized” by the State to perform the marriage ceremony and make a return of the signed and executed marriage license to the State.

Again, he emphasized that marriage is a strictly secular relationship so far as the State is concerned and because it is looked upon as a “privileged business enterprise” various tax advantages and other political privileges have become attached to the marriage license contract that have nothing at all to do with marriage as a religious covenant or bond between God and a man and a woman.

By way of reference, if you would like to read a legal treatise on marriage, one of the best is “Principles of Community Property,” by William Defuniak. At the outset, he explains that Community Property law descends from Roman Civil Law through the Spanish Codes, 600 A.D., written by the Spanish juris consults.

In the civil law, the marriage is considered to be a for-profit venture or profit-making venture (even though it may never actually produce a profit in operation) and as the wife goes out to the local market to purchase food stuffs and other supplies for the marriage household, she is replenishing the stocks of the business. To restate: In the civil law, the marriage is considered to be a business venture, that is, a for-profit business venture. Moreover, as children come into the marriage household, the business venture is considered to have “borne fruit.”

Now, back to the explanation by the Maricopa County Superior Court, Marriage Bureau’s administrative Assistant. He went on to explain that every contract must have consideration. The State offers consideration in the form of the actual license itself — the piece of paper, the Certificate of Marriage. The other part of consideration by the State is “the privilege to be regulated by statute.” He added that this privilege to be regulated by statute includes all related statutes, and all court cases as they are ruled on by the courts, and all statutes and regulations into the future in the years following the commencement of the marriage. He said in a way the marriage license contract is a dynamic or flexible, ever-changing contract as time goes along — even though the husband and wife didn’t realize that. My thought on this is can it really be considered a true contract as one becomes aware of the failure by the State to make full disclosure of the terms and conditions.

A contract must be entered into knowingly, intelligently, intentionally, and with fully informed consent. Otherwise, technically there is no contract. Another way to look as the marriage license contract with the State is as a contract of adhesion, a contract between two disparate, unequal parties. Again, a flawed “contract.” Such a contract with the State is said to be a “specific performance” contract as to the privileges, duties and responsibilities that attach.

Consideration on the part of the husband and wife is the actual fee paid and the implied agreement to be subject to the state’s statutes, rules, and regulations and all court cases ruled on related to marriage law, family law, children, and property. He emphasized that this contractual consideration by the bride and groom places them in a definite and defined-by-law position inferior and subject to the State. He commented that very few people realize this.

He also said that it is very important to understand that children born to the marriage are considered by law as “the contract bearing fruit” — meaning the children primarily belong to the State, even though the law never comes out and says so in so many words.

In this regard, children born to the contract regarded as “the contract bearing fruit,” he said it is vitally
important for parents to understand two doctrines that became established in the United States during the 1930s. The first is the Doctrine of Parens Patriae. The second is the Doctrine of In Loco Parentis. Parens Patriae means literally “the parent of the country” or to state it more bluntly — the State is the undisclosed true parent. Along this line, a 1930s Arizona Supreme Court case states that parents have no property right in their children, and have custody of their children during good behavior at the sufferance of the State. This means that parents may raise their children and maintain custody of their children as long as they don’t offend the State, but if they in some manner displease the State, the State can step in at any time and exercise its superior status and take custody and control of its children — the parents are only conditional caretakers.

He also added a few more technical details. The marriage license is an ongoing contractual relationship with the State. Technically, the marriage license is a business license allowing the husband and wife, in the name of the marriage, to enter into contracts with third parties and contract mortgages and debts. They can get car loans, home mortgages, and installment debts in the name of the marriage because it is not only a secular enterprise, but it is looked upon by the State as a privileged business enterprise as well as a for-profit business enterprise. The marriage contract acquires property throughout its existence and over time, it is hoped, increases in value. Also, the marriage contract “bears fruit” by adding children. If sometime later, the marriage fails, and a “divorce” results the contract continues in existence. The “divorce” is merely a contractual dissolution or amendment of the terms and conditions of the contract. Jurisdiction of the State over the marriage, over the husband and wife, now separated, continues and continues over all aspects of the marriage, over marital property and over children brought into the marriage. That is why family law and the Domestic Relations court calls calls “divorce” a dissolution of the marriage because the contract continues in operation but in amended or modified form.

He also pointed out that the marriage license contract is one of the strongest, most binding contractual relationships the States has on people At the end of our hour-long meeting, I somewhat humorously asked if other people had come in and asked the questions I was asking? The Assistant replied that in the several years he had worked there, he was not aware of anyone else asking these questions. He added that he was very glad to see someone interested in the legal implications of the marriage license and the contractual relationship it creates with the State.

His boss, the young woman Marriage Bureau department head stated, “You have to understand that people who come in here to get a marriage license are in heat. The last thing they want to know is technical, legal and statutory implications of the marriage license.”
(Laughter)

I hope this is helpful information to anyone interested in getting more familiar with the contractual implications of the marriage license. The marriage license as we know it didn’t come into existence until after the Civil War and didn’t become standard practice in all the states until after 1900, becoming firmly established by 1920. In effect, the states or governments appropriated or usurped control of marriages in secular form and in the process declared Common Law applicable to marriages “abrogated.”

Tagged , ,

An analysis of how a private individual may swear a complaint in Illinois.

An analysis of how a private individual may swear a complaint in Illinois

By Mark McCoy – mark@markmccoy.com

What do you do when you when you wish to have someone charged with an offense but are reluctant to  call the police, or have called the police and they refuse to act? Often times, the police will begin an inquiry or investigation into the person bringing the complaint as well. The more charges they can bring the better. So, in order to protect your privacy from the police you instead choose to bring charges on your own.

In Illinois, it is possible for a private individual to bring criminal charges against someone, and even then, against a the police. I was subject to criminal act committed by police and when I tried to press charges I was met with obfuscation, confusion, uncertainty, and reluctance from various agencies in pursuing a complaint. I contacted the Illinois State Police who referred me to the FBI. I called the FBI who only wanted to pursue civil rights violations, rights of which I do not claim.  I then went to the State’s Attorney who told me by way of a receptionist screening visitors that the State’s Attorney works for the police and I would have to go talk to the police. Really? The State’s Attorney is  elected by the electors and does not work for the police. I contacted the St. Clair County Sheriff’s department who referred me back to  the State Police. I tired quickly of the runaround. I even approached the St. Clair County

Circuit Clerk about filing the charges and they told me they had to file it along with my criminal charges which I was fighting at that time. During a court appearance in front of an associate judge I was told that any citizen can bring charges against someone else if they swear to a crime being alleged. How to exactly effect this was not clear, but I was told to file the complaints with the Circuit Clerk’s office. When going to the Circuit Clerk’s office the clerks did everything possible to avoid the issue and eventually brought the actual Circuit Clerk out to greet me. He eventually took possession of my complaints and promised to file the complaints, but first needed to speak to the chief judge.  It appears no one knew how to prosecute police.

I turned to the Illinois Compiled Statutes for guidance. I drafted the criminal complaints based upon the requirements identified in the statutes and had them notarized. The statute I refer to is Chapter 725 and is cited as 725 ILCS 5/107-9 (Criminal Procedure – Apprehension and Investigation – Arrest- Issuance of arrest warrant upon complaint).

I will reference the salient parts from the Illinois Compiled Statutes Annotated and then comment on supporting case law. I want to stress the importance of paying particular attention to words such as “shall” and “may”. The language of the law is intended to be very precise and where ambiguity is found then legislative intent is consulted.

725 ILCS § 107-9. Issuance of arrest warrant upon complaint. (a) When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.

Notice the statute does not limit who may make the complaint. It is not reserved for State’s Attorneys or police. A complaint is also presented to a court. That means a judge who has authority to issue a warrant. Most municipal judges are not even attorneys. This statute is referring to an associate judge or higher.

725 ILCS § 107-9(b)(3),(4) State the time and place of the offense as definitely as can be done by the complainant; and Be subscribed and sworn to by the complainant.

The complainant is the person who was injured by the accused. It is not a cop and it is not the People of the State of Illinois. It is a flesh-and-blood individual who was subject to the alleged criminal act. The complainant must be examined by the court and under oath. This is important because not everyone can administer oaths. A ticket signed by a cop where it says under penalty of perjury is not a legally binding oath or affirmation because it is not made before someone lawfully empowered to administer oaths. In Illinois, the authority to administer oaths is found at 5 ILCS 255 (Oaths and Affirmations Act).

So you go into court before a judge and have in your possession a written complaint which states the name of the accused and/or any way of identifying the accused and the offense with which the accused is charged, as well as the time and place of the offense. The complaint must be subscribed and sworn to by the complainant, which means before a notary or other persons indentified in the Oaths and Affirmations Act. The court “shall” examine the complaint, the complainant, and any witnesses. If, after reviewing the foregoing, the court determines that an offense has in-fact been committed it a warrant “shall be issued” for the arrest of the person complained against. This means no discretion. It “shall” issue a warrant, shall being equated with “must”.

Key points to bear in mind:

Examination of complainants and witnesses

Although an arrest warrant may be issued only upon a showing of probable cause, it does not necessarily follow that a demonstration of probable cause must be made in complaint upon which arrest warrant is issued; in issuing arrest warrant, judge is not bound by four corners of complaint, but may base a determination of probable cause upon his required examination of complainant or witnesses. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.

  • What is being said here is that probable cause does not rest solely with the complaint. It is required that the judge examine the complainant or witness, and upon that testimony he may find probable cause. This is because not everyone may possess the faculties required to pen a proper complaint and what may be lacking in the complaint is supplemented by the testimony of the complainant.

In compliance with this paragraph, judge issuing arrest warrants properly examined complainant to determine probable cause prior to issuing warrants over his signature. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.

Where complaint was signed by complainant and was acknowledged before notary public, who was not an associate circuit judge or magistrate, and after complaint was signed and sworn to, it was presented to associate circuit judge, who heard no testimony, and solely on basis of examination of complaint, ordered warrant of arrest to issue, warrant was properly quashed because of failure of associate circuit judge to examine complainant or other witnesses as required by this paragraph. People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241.

  • What is being said here is what illustrates the necessity for the judge to examine the complainant or witness. It is important to keep this in mind when making your complaint because if the judge does not examine the complainant or witness it will prove fatal to your case. I can envision a situation where a judge will sabotage a case by failing to examine the complainant or witness, as in what took place in the above case. I would recommend being adamant about the judge examining you or the witness to ensure no defect in the warrant ensues which would result in a dismissal.

Complaint–In general

Citizen who has knowledge that crime has been committed should go before a magistrate and make a complaint stating that particular crime has been committed and, on information and belief, that the person named is the offender, and magistrate should thereupon issue his warrant for arrest of person named. Lindquist v. Friedman’s, Inc., 1937, 8 N.E.2d 625, 366 Ill. 232.

  • The court doesn’t make it any clearer than this.

Arrest by warrant is unlawful until complaint charging crime has been filed. Housh v. People, 1874, 75 Ill. 487.

Verification of complaint

Defective verification of complaint may be waived. People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161.

  • A  person waives a defective verification or complaint when they appear in court and plea to charges without demanding a verified complaint. This includes traffic and misdemeanor tickets signed by the police. The policeman’s signature is not a verification since it is not signed and sworn to in front of someone empowered to administer oaths by way of the Oaths and Affirmations Act. Does this mean some possible inconvenience? Yes, but I would posit that a majority of cases would not proceed if the State had to actually follow the law as-written. Remember, if you plea to a ticket you waive any defect in the complaint, which is certain if it had not been sworn to.

Where defendant had not moved to quash complaint until after state had rested its case in prosecution for theft and at time of motion complainant had already sworn in open court to all facts alleged therein, defects, if any, existing in verification of complaint had been waived. People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161.

  • Basically, in this case, it was too late to challenge any defects in the complaint. The individual in this case waited until after the State had rested in prosecution. It is best to challenge the complaint at the outset.

Complaint subscribed by complainant and sworn to before notary public is sufficient to meet requirement of this paragraph. People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241. Criminal Law  211(2)

  • Basically, a complaint subscribed and sworn to before a notary public satisfies the requirements for having the complaint sworn to.

Paragraph 111-3 of former chapter 38 providing that complaint shall be sworn to and signed by complainant does not limit or qualify person or officer before whom complaint is to be sworn and signed and allows verification before any officer empowered to administer oaths. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.

  • What is being said here is that a complaint shall (must) be sworn to and signed by complainant. It also does not attempt to limit who the complainant may swear and sign before as long as they are empowered to administer oaths, which refers to the Oaths and Affirmations Act.

Where want of verification was appropriately raised, unverified complaint charging reckless and careless driving on residential street in violation of village ordinance could not sustain guilty judgment and judgment must be reversed. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.

  • What happened in this case is the defendant raised the issue of demanding a verified complaint, but the State refused to comply and proceeded on with a trial. Upon finding the defendant guilty, the judgment was reversed because he was never provided with the verified complaint. Once the issue is raised, and not complied with, everything after that point is a nullity and must be reversed.

Complaint verified before notary public satisfies requirement of ¶111-3 of former chapter 38 that complaint shall be sworn to and signed by complainant and is sufficient to sustain criminal prosecution. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.

  • This confirms and clarifies the requirement that a complaint must be sworn to and signed by the complainant in order to sustain a criminal prosecution. As mentioned above, a complaint not sworn to by a person empowered to administer oaths will not sustain a finding of guilt and must be reversed.

A sworn information or complaint, or an indictment, is a prerequisite to issuance of an arrest warrant. People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147.

  • This does not mean an individual can’t be arrested without an arrest warrant, but it means that in order for there to be an arrest warrant a complaint, or information or indictment, must be sworn to. Again, by appearing in court upon receiving a ticket signed by the policeman waives your right to a verified complaint. If there is no sworn complaint before a person empowered to administer oaths then the warrant is not lawful.

Constitutional provisions relating to searches and seizures should not be extended to require a sworn complaint as a jurisdictional prerequisite to prosecution of a criminal offense. People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147.

An information cannot be verified on information and belief, but the affidavit in support thereof must be sworn to positively so that a charge of perjury would lie in the event of its falsity. People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657.

  • An information is different from a complaint. An information is signed by the State’s Attorney and a complaint is signed by the complainant. What the court said in this case is that for the State to bring a charge by way of information, it must be supported by affidavit which is sworn to the same as with a complaint so that if false, a charge or perjury could be brought against the person if not true.

Form and contents of complaint

Fact that complaint itself may not have stated facts supporting probable cause did not make arrest warrant invalid, where trial court examined complainant under oath and determined that probable cause existed. People v. Hayes, 1990, 151 Ill.Dec. 348, 139 Ill.2d 89, 564 N.E.2d 803, certiorari denied 111 S.Ct. 1601, 449 U.S. 967, 113 L.Ed.2d 664.

  • The court is saying that even if the complaint itself does not contain information to support probable cause, by the court examining the complainant under oath, it determined that probable cause was sufficient for the issuance of an arrest warrant. This illustrates the importance of the court examining the complainant or witness. It is not the written complaint which is important, but that there is a flesh-and-blood individual before the court swearing under oath and penalty of perjury that there has been a crime committed, and the complaint serves as the written instrument for the record which the court will refer to in prosecuting the crime.

Officer seeking arrest warrant is not required to present issuing judge any and all circumstances which may affect finding of probable cause. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142.

Complaints for arrest warrants, which complaints contained names of accused, offense charged, time and place of offense, and signature and oath of complainant, were sufficient under this paragraph. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.

Probable cause necessary for issuance of arrest warrant cannot be made out by mere conclusory statements in affidavit in support of warrant that probable cause exists. People v. Davis, App. 1 Dist.1974, 20 Ill.App.3d 948, 314 N.E.2d 723.

Where arrest warrant was issued on basis of a complaint which merely stated that police officer had just and reasonable grounds to believe that defendant had sold a narcotic drug, warrant was defective under Const. 1870, Art. 2, § 6 (see, now, Const. Art. 1, § 6), and evidence obtained as a result of defendant’s arrest was inadmissible. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257.

Complaint which charged offense of disorderly conduct and which was verified before notary public and presented to court by complainant, who was thereupon examined under oath by court, was sufficient as basis for issuance of warrant of arrest. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.

A complaint in writing subscribed and sworn to, containing a concise statement of the offense charged, the name of the person accused, and averring that the complainant has just and reasonable grounds to believe that the accused committed the offense, is sufficient. People v. United States Fidelity & Guaranty Co., 1925, 238 Ill.App. 112.

Illinois courts may issue an arrest warrant only if complaint shows that probable cause exists to believe proposed arrestee has committed crime in question. Keefer v. Leach, 1979, 597 P.2d 203, 198 Colo. 101.

Information, complaint as

Signature of assistant state’s attorney on complaint for arrest warrant did not automatically convert that instrument into an information. People v. Johnson, App. 5 Dist.1989, 135 Ill.Dec. 678, 188 Ill.App.3d 147, 544 N.E.2d 35.

Same instrument which was used as complaint for arrest warrant was properly used the following day as information charging defendant with offenses. People v. Johnson, App. 5 Dist.1989, 135 Ill.Dec. 678, 188 Ill.App.3d 147, 544 N.E.2d 35.

Warrant–In general

Issuance of an arrest warrant does not, of itself, formally charge individual with a crime. People v. Dockery, App.1966, 72 Ill.App.2d 345, 219 N.E.2d 687. Criminal Law  216 for arrest should not issue except upon information supported by affidavit. Myers v. People, 1873, 67 Ill. 503

Grounds for insurance, warrant

Trial court had authority to issue warrant for defendant’s arrest when he failed to appear personally on hearing date for traffic offenses. People v. Kaeding, App. 2 Dist.1988, 116 Ill.Dec. 237, 165 Ill.App.3d 188, 518 N.E.2d 1058.

Probable cause, warrant

This paragraph did not require that complaint or warrant articulate probable cause for arrest but rather that court, in making determination of probable cause for issuance of arrest warrant, examine complainant or any witness under oath. People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239.

Motion to quash, warrant

With respect to one statement used by police to procure arrest warrant, affiant’s deliberate omission of material fact can be reckless disregard for the truth such as to justify attack on veracity of affiant’s statement. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142.

Where motion to quash an arrest warrant is filed, judge hearing that motion must have before him the same knowledge the judge who issued that arrest warrant had, in order to make a proper and intelligent judgment as to whether probable cause existed, and trial judge must look at the same things the judge who issued the arrest warrant looked at, i.e., both the complaint and the oral testimony heard under oath at that time. People v. Helton, App. 1 Dist.1974, 18 Ill.App.3d 1077, 311 N.E.2d 183.

On motion to quash arrest warrant, trial judge erred in ruling that he could not go beyond four corners of the warrant and in refusing to consider what officer who had signed warrant had testified to under oath before the issuing judge; thus motion should not have been granted on basis that warrant did not state how the officer acquired his knowledge.  People v. Helton, App. 1 Dist.1974, 18 Ill.App.3d 1077, 311 N.E.2d 183.

As one allegedly aggrieved by a claimed unlawful seizure of his person, defendant, by motion to quash arrest, had right to show that arrest, although with a warrant, was illegal because warrant was insufficient on its face, was issued without probable cause or was illegally executed. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.

On motion to quash arrest, burden was on defendant to prove that warrant was invalid. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.

Absent evidence that arrest warrant was illegally obtained or unlawfully executed, trial court did not err in refusing to grant defendant’s motion to quash his arrest. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.

Search and seizure

The right of search without a warrant, as an incident to a lawful arrest, may, in proper cases, extend beyond the person to an area in immediate physical relation to him, although extent is limited by the reasons for its existence, namely, to protect the arresting officer and deprive the prisoner of potential means of escape. People v. Heidman, 1957, 11 Ill.2d 501, 144 N.E.2d 580, certiorari denied 78 S.Ct. 412, 355 U.S. 931, 2 L.Ed.2d 414.

An officer has the right, as an incident of arrest, to search a prisoner without a search warrant, and evidence taken from the person as a result of that search is admissible against him. People v. Heidman, 1957, 11 Ill.2d 501, 144 N.E.2d 580, certiorari denied 78 S.Ct. 412, 355 U.S. 931, 2 L.Ed.2d 414.

Abuse of process

The holding of accused incommunicado by officers of the state before complying with warrant for accused’s arrest which required accused to be taken before magistrate constituted “abuse of process.” People v. Crabb, 1939, 24 N.E.2d 46, 372 Ill. 347.

Review

In passing on validity of warrant, reviewing court may consider only information brought to attention of judicial officer issuing warrant. People v. Lindner, App. 2 Dist.1980, 36 Ill.Dec. 512, 81 Ill.App.3d 15, 400 N.E.2d 1092.

Reviewing courts must interfere with discretional determinations of magistrates with regard to issuing warrants when no basis for probable cause appears on the face of the complaint. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257.

Where no motions to quash or in arrest of judgment were filed or ruled upon prior to the filing of the notices of appeal, the question of the sufficiency of the complaints could not be raised on appeal. People v. DeMarino, App.1966, 72 Ill.App.2d 38, 219 N.E.2d 132.

Interesting

Police officers did not make lawful arrest based on probable cause, accompanied by lawful search incident to such arrest, where defendant was not informed that he was under arrest until after second search was conducted and he was handcuffed, approximately 15 minutes after initial pat-down which produced switchblade knife, and where, throughout this period of time, nothing was said to defendant who remained standing 10 to 15 feet away from squad cars, unrestrained in any way. People v. Vollrath, App. 3 Dist.1981, 51 Ill.Dec. 346, 95 Ill.App.3d 866, 420 N.E.2d 760.

Where defendant, who was stopped by police for driving with a bent license plate, was asked to step out of the car and was subsequently arrested for driving under a suspended driver’s license, search of bag in the back seat of his car was unreasonable as a search incident to arrest, as the bag was not within the immediate control of the defendant once he stepped from the car, and there was no showing that the officer had reason to believe that the incident was anything more than a traffic matter, nor that the search was necessary to insure the safety of the police officer or to prevent the defendant from escaping. People v. Salter, App. 1 Dist.1980, 47 Ill.Dec. 136, 91 Ill.App.3d 831, 414 N.E.2d 1252.

Arrest for minor traffic violation does not justify search of violator. People v. Holze, App. 2 Dist.1977, 13 Ill.Dec. 144, 55 Ill.App.3d 155, 370 N.E.2d 1171.

State Police officer’s uncontradicted testimony that State Police department had standard policy of checking passenger compartment and trunk for valuables and of listing any valuables on tow inventory sheet established that State Police department’s standard policy for conducting an inventory search before towing the vehicle of a motorist arrested for driving on a revoked license included a policy of opening closed containers in which valuables might be found. People v. Gipson, 2003, 272 Ill.Dec. 1, 203 Ill.2d 298, 786 N.E.2d 540, certiorari denied 124 S.Ct. 116, 540 U.S. 844, 157 L.Ed.2d 80.

Roadblock to check for valid driver’s license, insurance and registration was unreasonable “seizure” under Fourth Amendment, even though checkpoint served valid public safety purpose, where police sergeant, rather than policy-making level official, made decision to institute roadblock, no written guidelines governed operation of roadblock, and there was no evidence that roadblock was publicized or that it was effective in advancing public interest. People v. Fullwiley, App. 2 Dist.1999, 237 Ill.Dec. 861, 304 Ill.App.3d 44, 710 N.E.2d 491, appeal denied 242 Ill.Dec. 143, 185 Ill.2d 642, 720 N.E.2d 1098.

In measuring the level of subjective intrusion produced by a roadblock, courts consider whether (1) the decision to institute the roadblock and to select the site is made by supervisory personnel; (2) the method employed to stop the vehicles is preestablished and systematic; (3) the roadblock is operated in accordance with preexisting guidelines; (4) the official nature of the operation is sufficiently apparent, and it is obvious that the roadblock does not in fact pose a safety risk; and (5) the police’s intent to establish the roadblock is publicized in advance. People v. Fullwiley, App. 2 Dist.1999, 237 Ill.Dec. 861, 304 Ill.App.3d 44, 710 N.E.2d 491, appeal denied 242 Ill.Dec. 143, 185 Ill.2d 642, 720 N.E.2d 1098.

Cases cited herein:

  • Housh v. People, 1874, 75 Ill. 487

Keefer v. Leach, 1979, 597 P.2d 203, 198 Colo. 101

  • Lindquist v. Friedman’s, Inc., 1937, 8 N.E.2d 625, 366 Ill. 232
  • Myers v. People, 1873, 67 Ill. 503
  • People v. Crabb, 1939, 24 N.E.2d 46, 372 Ill. 347
  • People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995
  • People v. Davis, App. 1 Dist.1974, 20 Ill.App.3d 948, 314 N.E.2d 723
  • People v. DeMarino, App.1966, 72 Ill.App.2d 38, 219 N.E.2d 132
  • People v. Dockery, App.1966, 72 Ill.App.2d 345, 219 N.E.2d 687
  • People v. Fullwiley, App. 2 Dist.1999, 237 Ill.Dec. 861, 304 Ill.App.3d 44, 710 N.E.2d 491, appeal denied 242 Ill.Dec. 143, 185 Ill.2d 642, 720 N.E.2d 1098
  • People v. Gipson, 2003, 272 Ill.Dec. 1, 203 Ill.2d 298, 786 N.E.2d 540, certiorari denied 124 S.Ct. 116, 540 U.S. 844, 157 L.Ed.2d 80
  • People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147
  • People v. Hayes, 1990, 151 Ill.Dec. 348, 139 Ill.2d 89, 564 N.E.2d 803, certiorari denied 111 S.Ct. 1601, 449 U.S. 967, 113 L.Ed.2d 664
  • People v. Heidman, 1957, 11 Ill.2d 501, 144 N.E.2d 580, certiorari denied 78 S.Ct. 412, 355 U.S. 931, 2 L.Ed.2d 414
  • People v. Helton, App. 1 Dist.1974, 18 Ill.App.3d 1077, 311 N.E.2d 183
  • People v. Holze, App. 2 Dist.1977, 13 Ill.Dec. 144, 55 Ill.App.3d 155, 370 N.E.2d 1171
  • People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239
  • People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142
  • People v. Johnson, App. 5 Dist.1989, 135 Ill.Dec. 678, 188 Ill.App.3d 147, 544 N.E.2d 35
  • People v. Kaeding, App. 2 Dist.1988, 116 Ill.Dec. 237, 165 Ill.App.3d 188, 518 N.E.2d 1058
  • People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241
  • People v. Lindner, App. 2 Dist.1980, 36 Ill.Dec. 512, 81 Ill.App.3d 15, 400 N.E.2d 1092
  • People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69
  • People v. Salter, App. 1 Dist.1980, 47 Ill.Dec. 136, 91 Ill.App.3d 831, 414 N.E.2d 1252
  • People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657
  • People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161
  • People v. United States Fidelity & Guaranty Co., 1925, 238 Ill.App. 112
  • People v. Vollrath, App. 3 Dist.1981, 51 Ill.Dec. 346, 95 Ill.App.3d 866, 420 N.E.2d 760
  • People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257
  • Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809

Table of Authorities:

725 ILCS 5/107-9 (Criminal Procedure – Apprehension and Investigation – Arrest- Issuance of arrest warrant upon complaint)

SAMPLE CRIMINAL COMPLAINT:

Criminal Complaint and Affidavit in Support Thereof

NOW comes (Name of complaining party), a free and independent American and an inhabitant of the state of Illinois, and hereby states the following under oath and in demand to be examined by a sitting Judge of the County where this complaint is sworn to under penalty of perjury pursuant to authority found at 725 ILCS 5/107-9:

That on February 17, 2009, I, (Name of complaining party),, was witness to and possess first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Disorderly Conduct

Statutory provisions violated: 720 ILCS 5/26-1

Nature and elements of the offense (try to use as much of the language found in the statute and include the particular elements of the offense you are alleging): Transmitted or caused to be transmitted in any manner to any peace officer, public officer or public employee a report to the effect that an offense will be committed, is being committed, or has been committed, knowing at the time of such transmission that there is no reasonable ground for believing that such an offense will be committed, is being committed, or has been committed by way of a Fairview Heights Police Department Crime/Incident Report dated 2/17/09, Non-Traffic Complaint 1115419, Illinois Citation and Complaint(s) 1159155, and 1159154,  which transmitted to the Illinois State’s Attorney, a public officer, that the offenses of Fleeing and Eluding and Resisting a Peace Officer, and Improper Lane Usage, had been committed while knowing that there was no reasonable ground for believing that such offense(s) will be committed, were being committed, or had been committed.

Date and County were offense occurred: This offense occurred on February 17, 2009 in St. Clair County, Illinois.

Name of the Accused (If you know the name and address or place of business you should use that as well. You need to provide enough information so the individual may be identified by the arresting officer): Joshua Alemond, known to Mark McCoy as a policeman for the City of Fairview Heights, Illinois


AFFIDAVIT

I, (Your Name), do hereby swear that the information contained in this Criminal Complaint is true and accurate to the best of my knowledge, and it is my true belief that the person(s) named herein are guilty of having committed the aforementioned offenses/criminal acts.

Subscribed and affirmed, under penalty of perjury, to the aforementioned material herein, in Madison County, in State of Illinois, on this 24th day of July, 2010.

_____________________________________

Affiant, (Your Name)

(SIGNATURE)

The undersigned, a notary public in and for the above county and state, certifies that ________________________, known to me to be the same person whose name is subscribed to the foregoing Criminal Complaint and Affidavit in Support Thereof, appeared before me in person and acknowledged signing and delivering the instrument as a free and voluntary act.

Dated: ___________________

(SEAL)

__________________________

Notary Public

My commission expires ______________________________

So you think you're an Employee working for an Employer. A letter I wrote for one of my clients to their so-called "Employer".

XXXXX XXXXX
XXXXXX
XXXXXXXXX, Illinois
[62226]

Friday, March 28, 2008

Mr. XXXXX XXXXX
XXXX XXXXXXXXX XXXXX
XXXXX XXXXX XXXXX XXXX
Earth City, MO 63045

Re: Demand for full compensation and release of unlawfully withheld monies under color of law.

Mr. XXXXXXX,

Ms. XXXXXXX is in receipt of payroll check (Check Number 9521) dated 12/17/2007 for the sum of $676.77 as compensation for Ms. XXXXXXX’s labor, occurring between the dates of XX/XX/2007 through XX/XX/07. I am writing to inform you that the amount reflected on the check as “Net Pay” is incorrect and deficient to the tune of $275.94, which is reflected on the stub of said check under “Taxes”, of which you had no lawful authority to withhold, and still persisted in doing so against Ms. XXXXXXX’s express permission.

I formally demand you to release the withheld monies and return them to Ms. XXXXXXX within 10 (ten) days of your receipt of this letter, to satisfy your obligation to compensate her in full, per your agreement, in her performing labor at your request in exchange for a dollar amount established by your collective bargaining agreement with the IBEW. Failure to comply with this lawful demand will result in your depriving Ms. XXXXXXX of her property by way of the tort of conversion; breaching your contract to compensate Ms. XXXXXXX in full; and intentionally causing undue stress and hardship to Ms. XXXXXXX and her family, recourse for which will be sought through the civil courts.

A number of attempts have been made to reach an agreement in this matter, among which include conversations with your attorney, Carl XXXXXX. Mr. XXXXX was provided with an 18 page fax from me which included a memorandum of law: “Requirements of Employers With Respect to Social Security Numbers”. Mr. XXXXXX never responded to the communiqué’ and refused to return a number of subsequent phone calls from me.

To date, I have not been provided with any legal authority by you or your attorney, both of you which are vocal and capricious with parroting conventional wisdom which reflects ignorant and ill-informed perceptions about the true applicability of the tax code to workers in the private sector exchanging their labor for compensation. I have made every possible attempt to inform all parties involved that there can be no withholding upon a worker without a lawful imposition of a tax (of which none has been shown to exist) or a worker’s permission to submit to withholding by tendering a signed W-4 (of which none has been tendered). Absent such lawful authority or voluntary submission, there can be no withholding.

In your letter dated Nov. 13, 2007, you presume to act under authority of 26CFR31.6011(b)–1(iv) in requiring Ms. XXXXXXX to provide a “Social Security account number”. I have reviewed the regulations and have found no such citation as you referenced within the code. I believe the text you are quoting is from 26CFR31.6011 (b) -2 (b)(iv), which contains similar verbiage as that you quoted. If you read the above referenced citation, you will see that the words “Social Security account number” appear nowhere within the text of that cite. The code only mentions “account numbers”. If you read the beginning of the citation, you will see that it pertains only to “…employment for wages subject to the taxes imposed by the Federal Insurance Contributions Act or which are subject to the withholding of income tax from wages under section 3402…”. Would you please explain under what authority or expertise you claim to define Ms. XXXXXXX’s tax liability or interpret the code as it applies to Ms. XXXXXXX’s status? Can you also provide proof that Ms. XXXXXXX’s earnings from you constitute “wages”, as defined within the code, and MPG is such an “employer” and Ms. XXXXXXX an “employee” under same code?

I also find it difficult to reconcile your apparent hypocrisy in stating that you are abiding by the law, when on Feb. 28, 2007,  Ms. XXXXXXX received a check in the amount $355.58 (number 8808) where taxes were withheld against Ms. XXXXXXX’s wishes, and in violation of the exemption documentation Ms. XXXXXXX tendered. Upon making your payroll department aware of their error, Ms. XXXXXXX was re-issued a corrected check (number 2443) in the amount of $385.04, in which no monies were withheld. It would appear that you either do not know, and apply, the law as well as you purport, as evidenced by your payroll inconsistencies, or are summarily disregarding the law in this latest instance for whatever purpose seems fit to suit your fancy. Regardless, since you issued a complete check, absent withholding, in the beginning of the year, I would expect you to likewise issue the remainder of Ms. XXXXXXX’s pay for the latest check as well.

You are making a presumptive leap to defining Ms. XXXXXXX as an employee and yourself as an employer. My whole point is that the law does not identify, nor apply to, private sector workers. The code has always applied to government workers or others performing “services” in areas under federal jurisdiction, and not to the 50 states. The law has been consistently misapplied. As long as workers continue to claim to be employees and submit to paying “the tax”, the government is more than happy to take their money.

On the other hand, Ms. XXXXXXX chose not to misidentify herself, and instead, apply the law, as written. There is no penalty for not submitting to withholding if the law never applies to Ms. XXXXXXX to begin with. The law most definitely applies to employees and employers of the United States. However, the law takes explicit measures to re-define some terms for use in the law which contradict the every day “Webster” meaning. For example:
Withholding only applies to “Wages”. “Wages” are only earned by “Employees”. The terms “Wages” and “Employee” have a special meaning for the purposes of the law, to wit:
TITLE 26 > Subtitle C > CHAPTER 24 > § 3401
§ 3401. Definitions
(a) Wages
For purposes of this chapter, the term “wages” means all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration (including benefits) paid in any medium other than cash; except that such term shall not include remuneration paid—

So we see that “wages” are paid for services performed by an employee. An employee is defined as:

(c) Employee
For purposes of this chapter, the term “employee” includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation.

Ms. XXXXXXX is not an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia. These are all federal governmental positions under federal jurisdiction. For this to apply to Ms. XXXXXXX, XXX would have to be a part of the federal government or a political extension of it. More word trickery is used to define an “Employer” as you see below:

(d) Employer
For purposes of this chapter, the term “employer” means the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person, except that—
(1) if the person for whom the individual performs or performed the services does not have control of the payment of the wages for such services, the term “employer” (except for purposes of subsection (a)) means the person having control of the payment of such wages, and
(2) in the case of a person paying wages on behalf of a nonresident alien individual, foreign partnership, or foreign corporation, not engaged in trade or business within the United States, the term “employer” (except for purposes of subsection (a)) means such person.

Lawmakers use the word “Employee” as the basis for defining an “Employer”. If an “Employee” only works for a federal entity, then employers must only be federal entities. To illustrate further, the terms “United States” and “State” don’t mean what one may think. They too have a specific meaning under this chapter:

TITLE 26 > Subtitle C > CHAPTER 21 > Subchapter C > § 3121
§ 3121. Definitions
(e) State, United States, and citizen
For purposes of this chapter—
(1) State
The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.

“States”, for the purposes of this chapter apply only to federal territories and possessions. It does not mention the “several states”. XXXX’s office is located in Missouri, not one of the above locations.

(2) United States
The term “United States” when used in a geographical sense includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.
An individual who is a citizen of the Commonwealth of Puerto Rico (but not otherwise a citizen of the United States) shall be considered, for purposes of this section, as a citizen of the United States.

Now we see “United States” means everything mentioned in “State” except for the District of Columbia. Again, XXXX is not located in the “United States” as it applies to this law. To illustrate further, the code even goes on to define an “American Employer”. Sounds like XXXX may be an “American Employer”. Think again. Remember the definition of “State” and “United States”:

(h) American employer
For purposes of this chapter, the term “American employer” means an employer which is—
(1) the United States or any instrumentality thereof,
(2) an individual who is a resident of the United States,
(3) a partnership, if two-thirds or more of the partners are residents of the United States,
(4) a trust, if all of the trustees are residents of the United States, or
(5) a corporation organized under the laws of the United States or of any State.

In other words, it means an employer which is the United States (The Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa) or an instrumentality thereof.

An individual who is a resident of Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.

A partnership, two-thirds or more of the partners are residents of The Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.

A trust, if all the trustees are residents of The Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.

A corporation organized under the laws of The Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa or of the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.

In case you are wondering about the use of “includes” to mean the things listed along with the 50 states or employees meaning those things listed along with you and I, one can’t assume that things not mentioned in the law are included unless they are specifically mentioned. In other words, absent a reference to the 50 states or several states, you should not assume that such are included in the terms defined. When used in law, “includes” and “including” have been held generally be terms of “limited expansion”.  The law even addresses the use of “includes” and “including:

TITLE 26 > Subtitle F > CHAPTER 79 > § 7701

(c) Includes and including
The terms “includes” and “including” when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.

It has to make you wonder why they would even have to address these words, but they use them specially when writing law. If you read the definition closely, it will read like this:

“The terms includes and including when used in a definition contained in this title shall not be deemed to exclude other things that that mean the same thing as the term being defined.”

When the term “employee” is being defined as “…includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation.”, the term is mentioning those working in various capacities for governmental entities. Since private sector workers are not mentioned in the definition, the word “includes” should not be deemed to embrace such workers, because they are not within the meaning of the term being defined, which is “employees” who work for governmental entities.
“Includes” can also be redefined to read, “The term “includes” shall not be deemed to imply other things not within the meaning of the term being defined.”

It is not the burden of the person to prove that the law doesn’t apply to them. The burden is upon the government to show that the law does apply to the person. When reading the actual law, as I have outlined above, there is NO tax imposed, nor duty to withhold, upon Ms. XXXXXXX’s compensation unless done by inference and applying colloquial interpretation to the law.

I would ask that you read the definitions carefully and provide me with the applicable code and regulation that requires Ms. XXXXXXX to submit to withholding or to have XXXX withhold Ms. XXXXXXX’s pay against her will. A W-4 can not be mandatory since it requires Ms. XXXXXXX/s signature. Since Ms. XXXXXXX’s signature is being requested she therefore has the prerogative to decline providing it. Ms. XXXXXXX can not be compelled to sign something against her will. And if the W-4 is necessary for withholding to occur, then absent Ms. XXXXXXX’s submission of a signed W-4, there can be no withholding.

I can respect someone acting according to the law. I can even accept someone applying the law, as they have come to read and understand it, even if that reading and understanding is misperceived. At least, in both situations, there is room for debate and communication in both sides making an argument for their interpretation of the law. However, I cannot accept, nor respect, someone who acts under color of law; who cites snippets of code out of context; and who hides behind colloquial interpretations and disjointed conventional wisdom of what they may have heard or have been told by others no more knowledgeable or informed than themselves. Since you appear to care not about what the law actually says, I have to believe you are hiding behind the law to unjustly deprive Ms. XXXXXXX of her full compensation because you are reluctant or afraid to go against the din of the ignorant cheering you on to remain ignorant like them and curry favor with the status quo.

I would appreciate, and respect, an articulate and logical application of the law, as you understand it through your own reading and research. Absent any evidence that you have applied yourself in reconciling this matter civilly, justly, and lawfully, I will remain resolute and unwavering in demanding Ms. XXXXXXX’s property be returned. Ms. XXXXXXX responded honorably in providing her labor at your request, in exchange for just compensation. I would expect you respond honorably in remitting Ms. XXXXXXX’s property to her in full.

   In closing, I will expect to see the balance of the earnings owed to Ms. XXXXXXX through unlawful confiscation returned within the time specified above. This letter constitutes final demand for payment in full of all said monies. Failure to respond with a remittance of the full amount of monies withheld will precipitate redress through the civil legal process. I await your response.

Sincerely,

Mark McCoy
Private Counsel and Representative for Ms. XXXXXXX

=============================================================================================

MISSOURI CIRCUIT COURT
TWENTY-SECOND JUDICIAL DISTRICT
(City of St. Louis)

XXXXX X. XXXXX            )
XX XXXXXXX XXXXX         )
XXXXXXXXX, XXXXXXXX 62226   )
                  )
         Plaintiff,           )
                  )
vs.                  )   Cause No.
                  )
XXX                  )
and Mr. XXXXXXX                        )
XXXXX XXXXXXX XXXXX XXXXX   )
Earth City, Mo 63045              )
                  )
         Defendant(s).   )

      
COMPLAINT

   COMES NOW the Plaintiff, XXXXX X. XXXXX, and for her causes of action against the defendant, XXX, hereinafter

referred to as XXXXX XXXXXXXXX, states as follows:

COUNT I
(CONVERSION AGAINST DEFENDANT, XXXXX XXXXXXXXX)

   For Count I against the Defendant, XXXXX XXXXXXXXX,

Plaintiff, XXXXX X. XXXXX, states as follows:

   1.   That the Defendant, XXXXX XXXXXXXXX, is a Missouri

   Corporation authorized to do business in the State of

   Missouri.

   2.   That the Defendant did contract with the Plaintiff for

   her labor, where she performed her duties for the Defendant

   on the following dates, and for the number of hours listed:
 
      A.   Sept. 27, 2007, for six hours.

      B.   Oct. 6, 2007, for six hours.

      C.   Oct. 11, 2007, for six hours.

      D.   Oct. 19, 2007, for six hours.
   
      E.   Nov. 2, 2007, for eight hours.

   3.   That the Defendant did contract with the Plaintiff for
   
   her labor, absent any disclosure of a social security number

   or any tendering of tax withholding forms.

   4.   That the Defendant had no lawful authority or

   permission from the Plaintiff to withhold any amount from

   the Plaintiff’s just compensation.
                     
   5.   That the agreed upon rate of pay per hour was $28.97,

   pursuant to a collective bargaining agreement with the

   International Brotherhood of Electrical Workers Local X.

   6.   That the Defendant was indebted to the Plaintiff for

   $952.71 as compensation for her labor.

   7.   That the Defendant did issue a payroll check in the

   amount of $676.77 on Dec. 31, 2007, to the Plaintiff,

   as compensation for her labor performed per paragraph 1.

   8.   That the Plaintiff was denied $275.94 of her just

   compensation, by the Defendant withholding said amount

   against the wishes of the Plaintiff.

   9.   That the Defendant alluded to complying with a law

   requiring him to withhold a portion of the Plaintiff’s
         
   compensation as justification, but failed to fully cite any

   lawful authority for depriving the Plaintiff of her full

   compensation when faced with a demand by the Plaintiff for

   such specific lawful duty.

   10.   That the Defendant did not inform the Plaintiff, upon

   contracting for her labor, that he   would be withholding any

   amount from Plaintiff’s compensation in order to comply with

   any lawful authority.

   11.   That the Plaintiff made repeated demands to the

   Defendant for the $275.71 balance owed to her.

   12.   That the Defendant committed the tort of conversion

   when he intentionally and purposefully withheld $275.94 from

   the Plaintiff’s just compensation for her labor, and

   retained said amount for his own use.

   13.   That as a direct and proximate result of one or more of

   the aforementioned acts by the Defendant, the Plaintiff,

   XXXXX X. XXXXX, was deprived of the use and enjoyment of her

   just compensation and fruits of her labor.

   WHEREFORE, Plaintiff, XXXXX X. XXXXX, prays judgement

against the defendant, XXXXX XXXXXXXXX, for a sum of $275.94 in

compensatory damages, plus $1000 in punitive damages, plus costs

of suit.      

COUNT II
(BREACH OF CONTRACT AGAINST DEFENDANT, XXXXX XXXXXXXXX)

   For Count II against the Defendant, XXXXX XXXXXXXXX,

Plaintiff, XXXXX X. XXXXX, states as follows:

   1.   That the Defendant, XXXXX XXXXXXXXX, is a Missouri

   Corporation authorized to do business in the State of

   Missouri.

   2.   That the Defendant did contract with the Plaintiff for

   her labor, where she performed her duties for the Defendant

   on the following dates, and for the number of hours listed:
 
      A.   Sept. 27, 2007, for six hours.

      B.   Oct. 6, 2007, for six hours.

      C.   Oct. 11, 2007, for six hours.

      D.   Oct. 19, 2007, for six hours.
   
      E.   Nov. 2, 2007, for eight hours.

   3.   That the Defendant did contract with the Plaintiff for
   
   her labor, absent any disclosure of a social security number

   or any tendering of tax withholding forms.

   4.   That the Defendant had no lawful authority or

   permission from the Plaintiff to withhold any amount from

   the Plaintiff’s just compensation.
                     
   5.   That the agreed upon rate of pay per hour was $28.97,

   pursuant to a collective bargaining agreement with the

   International Brotherhood of Electrical Workers Local X.

   6.   That the Defendant was indebted to the Plaintiff for

   $952.71 as compensation for her labor.

   7.   That the Defendant did issue a payroll check in the

   amount of $676.77 on Dec. 17, 2007, to the Plaintiff,

   as compensation for her labor performed per paragraph 1.

   8.   That the Plaintiff was denied $275.94 of her just

   compensation by the Defendant withholding said amount

   against the wishes of the Plaintiff.

   9.   That the Defendant alluded to complying with a law

   requiring him to withhold a portion of the Plaintiff’s
         
   compensation as justification, but failed to fully cite any

   lawful authority for depriving the Plaintiff of her full

   compensation when faced with a demand by the Plaintiff for

   such specific lawful duty.

   10.   That the Defendant did not inform the Plaintiff, upon

   contracting for her labor, that he   would be withholding any

   amount from Plaintiff’s compensation in order to comply with

   any lawful authority.

   11.   That the Plaintiff made repeated demands to the

   Defendant for the $275.71 balance owed to her.

   12.   That the Defendant committed the tort of conversion

   when he intentionally and purposefully withheld $275.94 from

   the Plaintiff’s just compensation for her labor, and

   retained said amount for his own use.

   13.   That as a direct and proximate result of one or more of

   the aforementioned acts by the Defendant, the Plaintiff,

   XXXXX X. XXXXX, was deprived of the use and enjoyment of her

   just compensation and fruits of her labor.

   WHEREFORE, Plaintiff, XXXXX X. XXXXX, prays judgement

against the defendant, XXXXX XXXXXXXX, for a sum of $275.94 in

compensatory damages, plus $1000 in punitive damages, plus costs

of suit.      

COUNT III
(CONVERSION AGAINST DEFENDANT, XXXXX XXXXXXXX)

   For Count I against the Defendant, XXXXX XXXXXXXXX,

Plaintiff, XXXXX X. XXXXX, states as follows:

   1.   That at all relevant times herein, the Defendant, XXXXX

   XXXXXXXXX, was an agent, servant, and/or employee of

   XXX, and was acting in the course of such employment.

   2.   That the Defendant did contract with the Plaintiff for

   her labor, where she performed her duties for the Defendant

   on the following dates, and for the number of hours listed:
 
      A.   Sept. 27, 2007, for six hours.

      B.   Oct. 6, 2007, for six hours.

      C.   Oct. 11, 2007, for six hours.

      D.   Oct. 19, 2007, for six hours.
   
      E.   Nov. 2, 2007, for eight hours.

   3.   That the Defendant did contract with the Plaintiff for
   
   her labor, absent any disclosure of a social security number

   or any tendering of tax withholding forms.

   4.   That the Defendant had no lawful authority or

   permission from the Plaintiff to withhold any amount from

   the Plaintiff’s just compensation.
                     
   5.   That the agreed upon rate of pay per hour was $28.97,

   pursuant to a collective bargaining agreement with the

   International Brotherhood of Electrical Workers Local X.

   6.   That the Defendant was indebted to the Plaintiff for

   $952.71 as compensation for her labor.

   7.   That the Defendant did issue a payroll check in the

   amount of $676.77 on Dec. 17, 2007, to the Plaintiff,

   as compensation for her labor performed per paragraph 1.

   8.   That the Plaintiff was denied $275.94 of her just

   compensation by the Defendant withholding said amount

   against the wishes of the Plaintiff.

   9.   That the Defendant alluded to complying with a law

   requiring him to withhold a portion of the Plaintiff’s
         
   compensation as justification, but failed to fully cite any

   lawful authority for depriving the Plaintiff of her full

   compensation when faced with a demand by the Plaintiff for

   such specific lawful authority.

   10.   That the Defendant did not inform the Plaintiff, upon

   contracting for her labor, that he   would be withholding any

   amount from Plaintiff’s compensation in order to comply with

   any lawful authority.

   11.   That the Plaintiff made repeated demands to the

   Defendant for the $275.71 balance owed to her.

   12.   That the Defendant committed the tort of conversion

   when he intentionally and purposefully withheld $275.94 from

   the Plaintiff’s just compensation for her labor, and

   retained said amount for his own use.

   13.   That as a direct and proximate result of one or more of

   the aforementioned acts by the Defendant, the Plaintiff,

   XXXXX X. XXXXX, was deprived of the use and enjoyment of her

   just compensation and fruits of her labor.

   WHEREFORE, Plaintiff, XXXXX X. XXXXX, prays judgement

against the defendant, XXXXX XXXXXXXXX, for a sum of $275.94 in

compensatory damages, plus $1000 in punitive damages, plus costs

of suit.      

COUNT IV
(BREACH OF CONTRACT AGAINST DEFENDANT,XXXXX XXXXXXXXX)

   For Count II against the Defendant, XXXXX XXXXXXXXX, XXXXX X

XXXXX, states as follows:
            
   1.   That at all relevant times herein, the Defendant, XXXXX

        XXXXXXXXX, was an agent, servant, and/or employee of XXX, and was

        acting in the course of such employment.

   2.   That the Defendant did contract with the Plaintiff for

   her labor, where she performed her duties for the Defendant

   on the following dates, and for the number of hours listed:
 
      A.   Sept. 27, 2007, for six hours.

      B.   Oct. 6, 2007, for six hours.

      C.   Oct. 11, 2007, for six hours.

      D.   Oct. 19, 2007, for six hours.
   
      E.   Nov. 2, 2007, for eight hours.

   3.   That the Defendant did contract with the Plaintiff for
   
   her labor, absent any disclosure of a social security number

   or any tendering of tax withholding forms.

   4.   That the Defendant had no lawful authority or

   permission from the Plaintiff to withhold any amount from

   the Plaintiff’s just compensation.
                     
   5.   That the agreed upon rate of pay per hour was $28.97,

   pursuant to a collective bargaining agreement with the

   International Brotherhood of Electrical Workers Local X.

   6.   That the Defendant was indebted to the Plaintiff for

   $952.71 as compensation for her labor.

   7.   That the Defendant did issue a payroll check in the

   amount of $676.77 on Dec. 17, 2007, to the Plaintiff,

   as compensation for her labor performed per paragraph 1.

   8.   That the Plaintiff was denied $275.94 of her just

   compensation by the Defendant withholding said amount

   against the wishes of the Plaintiff.

   9.   That the Defendant alluded to complying with a law

   requiring him to withhold a portion of the Plaintiff’s
         
   compensation as justification, but failed to fully cite any

   lawful authority for depriving the Plaintiff of her full

   compensation when faced with a demand by the Plaintiff for

   such specific lawful duty.

   10.   That the Defendant did not inform the Plaintiff, upon

   contracting for her labor, that he   would be withholding any

   amount from Plaintiff’s compensation in order to comply with

   any lawful authority.

   11.   That the Plaintiff made repeated demands to the

   Defendant for the $275.71 balance owed to her.

   12.   That the Defendant committed the tort of conversion

   when he intentionally and purposefully withheld $275.94 from

   the Plaintiff’s just compensation for her labor, and

   retained said amount for his own use.

   13.   That as a direct and proximate result of one or more of

   the aforementioned acts by the Defendant, the Plaintiff,

   XXXXX X. XXXXX, was deprived of the use and enjoyment of her

   just compensation and fruits of her labor.

   WHEREFORE, Plaintiff, XXXXX X. XXXXX, prays judgement

against the defendant, XXXXX XXXXXXXXX, for a sum of $275.94 in

compensatory damages, plus $1000 in punitive damages, plus costs

of suit.      
      

                  Respectfully Submitted,
                                             
                  XXXXX X. XXXXX, Plaintiff

XXXXX X. XXXXX
XX XXXXXXX XXXXX         
XXXXXXXXX, XXXXXXXX 62226

Illinois Gun Laws Pamphlet. Marxist Malapropisms, or How to Beat a Concealed Carry Rap.

Illinois Gun Laws Pamphlet. Marxist Malapropisms, or How to Beat a Concealed Carry Rap.

Control! The govt. oozes lies and misleading propaganda to make you believe they control you. I saw a link to the Illinois Gun Laws pamphlet, and decided to take a look at the usual pap disseminated by “Common questions and answers” publications. Let’s take a look at this:

First. we are directed to CRIMINAL OFFENSES
(720 ILCS 5/) Criminal Code of 1961.
We must look to the definitions section to understand what, and whom, we are seeking to regulate or punish:

(720 ILCS 5/Art. 2 heading)
ARTICLE 2. GENERAL DEFINITIONS

(720 ILCS 5/2‑0.5) (was 720 ILCS 5/2‑.5)
Sec. 2‑0.5. For the purposes of this Code, the words and phrases described in this Article have the meanings designated in this Article, except when a particular context clearly requires a different meaning.
(Source: Laws 1961, p. 1983.)

(720 ILCS 5/2‑7.1)
Sec. 2‑7.1. “Firearm” and “firearm ammunition”. “Firearm” and “firearm ammunition” have the meanings ascribed to them in Section 1.1 of the Firearm Owners Identification Card Act.
(Source: P.A. 91‑544, eff. 1‑1‑00.)

The Firearm Owners Identification Act is limited in scope, and falls within the authority of the “Police Power” of the State. I discuss police power in one of my previous posts, but keep in mind that it is NOT constitutionally derived power, but rather assumed power for the state to regulate for the health, safety, welfare, and morals of the citizens as such may pertain to “commercial activities”. For instance, looking at the FOID act, we see that all of the objects of the regulation pertain to the commercial acts of selling or buying firearms. Look at the wording carefully. I’ll emphasize with CAPS:

(430 ILCS 65/1) (from Ch. 38, par. 83‑1)
Sec. 1. It is hereby declared as a matter of legislative determination that in order to promote and protect the health, safety and welfare of the public, it is necessary and in the public interest to provide a system of identifying persons who are not qualified to acquire or possess firearms, firearm ammunition, stun guns, and tasers within the State of Illinois by the establishment of a system of Firearm Owner’s Identification Cards, thereby establishing a practical and workable system by which law enforcement authorities will be afforded an opportunity to identify those persons who are prohibited by Section 24‑3.1 of the “Criminal Code of 1961”, as amended, from acquiring or possessing firearms and firearm ammunition and who are prohibited by this Act from acquiring stun guns and tasers.
(Source: P.A. 94‑6, eff. 1‑1‑06.) — ALL THIS DOES IS PROVIDE FOR A SYSTEM FOR IDENTIFYING, BUT DOES MAKE IMPOSE ANY REQUIREMENT FOR LICENSING OR REGISTERING.
So, who are they addressing?

“Federally licensed firearm dealer” means a person who is licensed as a federal firearms dealer under Section 923 of the federal Gun Control Act of 1968 (18 U.S.C. 923). COMMERCIAL ACTIVITY

“Gun show” includes the entire premises provided for an

event or function, including parking areas for the event or function, that is sponsored to facilitate the purchase, sale, transfer, or exchange of firearms as described in this Section. COMMERCIAL ACTIVITY

“Gun show vendor” means a person who exhibits, sells, offers for sale, transfers, or exchanges any firearms at a gun show, regardless of whether the person arranges with a gun show promoter for a fixed location from which to exhibit, sell, offer for sale, transfer, or exchange any firearm. AGAIN, COMMERCIAL ACTIVITY

The FOID Act does not identify or define OFFENSES commited pursuant to the act, aside from a petty offense.

So, it is clear that the FOID card is a Commercial Firearms License for use within the State of Illinois, and does not apply to private Citizens who possess their own firearms for personal use and protection. Moving on to the criminal statute.

(720 ILCS 5/1‑2) (from Ch. 38, par. 1‑2)
Sec. 1‑2. General purposes. The provisions of this Code shall be construed in accordance with the general purposes hereof, to:
(a) Forbid and prevent the commission of offenses; THE FOID ACT DOES NOT LIST ANY OFFENSES OTHER THAN A PETTY OFFENSE, WHICH IS NOT CRIMINAL IN NATURE AND INAPPLICABALE TO THIS STATUTE.
(b) Define adequately the act and mental state which constitute each offense, and limit the condemnation of conduct as criminal when it is without fault;
(c) Prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders;
(d) Prevent arbitrary or oppressive treatment of persons accused or convicted of offenses.
(Source: Laws 1961, p. 1983.)

(720 ILCS 5/1‑3) (from Ch. 38, par. 1‑3)
Sec. 1‑3. Applicability of common law. No conduct constitutes an offense unless it is described as an offense in this Code or in another statute of this State. However, this provision does not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order or civil judgment.
(Source: P.A. 79‑1360.) AGAIN, THE FOID ACT DOES NOT DEFINE ANY OFFENSES, AND THE COMMON LAW DOES NOT APPLY DUE TO THE LACK THEREOF.

Looking further to the definitions of (720 ILCS 5/Art. 2 heading)
ARTICLE 2. GENERAL DEFINITIONS

(720 ILCS 5/2‑4) (from Ch. 38, par. 2‑4)
Sec. 2‑4. “Conduct”.
“Conduct” means an act or a series of acts, and the accompanying mental state.
(Source: Laws 1961, p. 1983.) SO YOU HAD A CONCEALED WEAPON. WHAT WAS YOUR MENTAL STATE AT THE TIME? TO COMMIT A CRIME, OR EXERCISE A CONSTITUTIONAL, GOD-GIVEN RIGHT? EXERCISING A RIGHT IS NOT A STATE OF MIND CONSISTENT WITH THE COMMISSION OF A CRIME.

(720 ILCS 5/2‑15) (from Ch. 38, par. 2‑15)
Sec. 2‑15. “Person”.
“Person” means an individual, public or private corporation, government, partnership, or unincorporated association.
(Source: Laws 1961, p. 1983.) THIS SHOULD BE INTERESTING. ARE YOU A PERSON? GENERALLY THE WORD INDIVIDUAL WOULD MEAN A REAL PERSON, OR PEOPLE, BUT USED WITH THE OTHER WORDS GIVES IT THE MEANING OF BEING AN ARTIFICIAL ENTITY, SUCH AS A CORPORATION OR OTHER GOVERNMENT-CREATED ENTITY. PERSON DOES NOT ALWAYS MEAN PEOPLE.

So, what constitutes a “crime”?

(720 ILCS 5/4‑2) (from Ch. 38, par. 4‑2)
Sec. 4‑2. Possession as voluntary act.
Possession is a voluntary act if the offender knowingly procured or received the thing possessed, or was aware of his control thereof for a sufficient time to have been able to terminate his possession.
(Source: Laws 1961, p. 1983.)

(720 ILCS 5/4‑3) (from Ch. 38, par. 4‑3)
Sec. 4‑3. Mental state. THIS MUST BE PROVEN IN COURT!!!
(a) A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Sections 4‑‑4 through 4‑‑7.
(b) If the statute defining an offense prescribed a particular mental state with respect to the offense as a whole, without distinguishing among the elements thereof, the prescribed mental state applies to each such element. If the statute does not prescribe a particular mental state applicable to an element of an offense (other than an offense which involves absolute liability), any mental state defined in Sections 4‑‑4, 4‑‑5 or 4‑‑6 is applicable. WE WILL LOOK AT THESE SECTIONS.
(c) Knowledge that certain conduct constitutes an offense, or knowledge of the existence, meaning, or application of the statute defining an offense, is not an element of the offense unless the statute clearly defines it as such.
(Source: Laws 1961, p. 1983.)

(720 ILCS 5/4‑4) (from Ch. 38, par. 4‑4)
Sec. 4‑4. Intent. NOPE, INTENT IS NOT MENTIONED IN THE OFFENSE SECTION.
A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.
(Source: Laws 1961, p. 1983.) OKAY, SO YOU INTEND TO CARRY A CONCEALED WEAPPON UNDER THE EXERCISE OF YOUR CONSTITUTIONALY PROTECTED RIGHT.

(720 ILCS 5/4‑5) (from Ch. 38, par. 4‑5)
Sec. 4‑5. Knowledge. THE CRIMINAL ACT STATES “KNOWINGLY”. LET’S LOOK AT “KNOWINGLY”.
A person knows, or acts knowingly or with knowledge of:
(a) The nature or attendant circumstances of his conduct, described by the statute defining the offense, when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.
(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.
Conduct performed knowingly or with knowledge is performed wilfully, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.
(Source: Laws 1961, p. 1983.)

(720 ILCS 5/4‑ (from Ch. 38, par. 4‑8)
Sec. 4‑8. Ignorance or mistake. (a) A person’s ignorance or mistake as to a matter of either fact or law, except as provided in Section 4‑3(c) above, is a defense if it negatives the existence of the mental state which the statute prescribes with respect to an element of the offense.
(b) A person’s reasonable belief that his conduct does not constitute an offense is a defense if:
(1) The offense is defined by an administrative regulation or order which is not known to him and has not been published or otherwise made reasonably available to him, and he could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him; or
(2) He acts in reliance upon a statute which later is determined to be invalid; or
(3) He acts in reliance upon an order or opinion of an Illinois Appellate or Supreme Court, or a United States appellate court later overruled or reversed;
(4) He acts in reliance upon an official interpretation of the statute, regulation or order defining the offense, made by a public officer or agency legally authorized to interpret such statute.
(c) Although a person’s ignorance or mistake of fact or law, or reasonable belief, described in this Section 4‑‑8 is a defense to the offense charged, he may be convicted of an included offense of which he would be guilty if the fact or law were as he believed it to be.
(d) A defense based upon this Section 4‑‑8 is an affirmative defense.
(Source: Laws 1961, p. 1983.)
IGNORANCE OR MISTAKE IS AN AFFIRMATIVE DEFENSE, BASED ON THE ABOVE CONDITIONS. HOWEVER, BELIEF THAT THE CONSTITUTION ALLOWS FOR THE CARRYING OR POSSESSING OF A FIREARM, EXCEPT WHERE THE POLICE POWER, WHICH APPLIES TO COMMERCIAL ACTIVITY RELATING TO THE HEALTH, SAFETY, WELFARE AND MORALS, APPLIES.

I would go into more detail, but this would make for a very lengthy post. All I can say is, read the law. All of the law. Definitions and intent as well. The law does not provide penalties for open carry, only concealed carry, and then under specific circumstances. I think a weapons charge under this statute, based on open carry, is able to be beaten, with the proper attorney who actually looks at the law and challenges the system based on what the law says, and uses proper case law and precedent, avoiding any mention of United States citizenship or alluding to having engaged in a commercial activity. Once you possess the FOID card, and then violate the statute, you are nailed because possessing the FOID card is the nexus that lends the presumption that you are, in fact, requred to have one and therefore engaged in a commercial activity. Once you place yourself under the autority of the police power, your constitutional rights are gone, and the U.S. citizenship priviledges apply, which do not include the second amendment. If anyone is interested in learning how U.S. citizenship means waiving your second amendment rights just let me know and I’ll show you a PowerPoint presentation detailing this fact. You can also look up 14th Amendment and Incorporation Doctrine. The Incorporation Doctrine says that courts do not consider all of the Bill of Rights to be “fundamental rights”, and have not considered the second amendment to be a right of U.S. citizenship.
Is anyone ready to take up arms yet? It’s about time!

An analysis of the so-called law (625 ILCS 5/12-212)(c) which is claimed to prohibit under-body neon lights in Illinois

An analysis of the so-called law (625 ILCS 5/12-212)(c) which is claimed to prohibit under-body neon lights in Illinois

This is an example of what many cops target as a motor vehicle violation. Of course, I can only speak to Illinois law since that is the only State I’ve researched, but I’m fairly confident that other States with similar laws on their books rely upon equally misapplied reasoning as the State of Illinois.

What is this all about, you may ask, and who really cares? I’m taking no side, specifically, as to the preference or defense of this automotive accessory inasmuch as I am illustrating the often misapplication of the law by police and the complicit fleecing if ignorant and unwitting “Defendants” who are prosecuted for such a contrived offense. This analysis looks at the letter of the law, the authority for its promulgation, the debates relating to its passing, and the intent behind its construction.

If you, or anyone you know, has been fined or threatened with prosecution for displaying similar lighting on their cars then you may want to provide them with this information so they may make an informed rebuttal the next time a revenue collector for the State or corporate municipality confronts them with ignorance and violence for violating nothing other than the regurgitated ramblings of an automaton.

Essentially, the law works like this; the Legislature proposes a Bill, there are debates and a vote, the Bill, if passed, is signed by the Governor and become law. The police then issue tickets based on what they are told the law means. People who receive citations go to court and the judge or prosecutor informs them of the alleged charge and they are asked to enter a plea. If they adopt the more-often-than-not fraudulent portrayal of the law’s application then they have just harmed themselves and plead to a non-existent or insufficient charge. The Statutes are NOT the law. They are prima facia evidence of the law, but they are not the letter of the law. Below is an image of a ticket charging this lighting offense and you’ll notice that they rely upon Section 12-212(c). Subsection (c) merely states that any lighting not authorized by this Statute is prohibited. Is that what the Legislature intended when the law was crafted? You will see, per the House Debate below, that the lights have to be “flashing”. Also, the charge on the ticket does not state an offense, since the language “Improper Use of a Lighting System” is nowhere to be found in that part of the statute.

Again, the entire system is a fraud and intentional misapplication of the law. They rely upon your ignorance and willingness to take the path of least resistance, viz., pay the ticket. I wanted to get this posted for now, and will be following up with more context on what constitutes a charge and how to successfully challenge and defeat this lie.

This is an image of an “information” wherein the “offense” of improper lighting was alleged….improperly. This “information” (ticket) fails to state an “offense”.

Sources of Authority

1. Illinois Compiled Statutes 625 ILCS 5/12-212

Illinois House of Representatives Transcripts

List of House Transcripts available which are responsive to a search for “2651”, the number of the House Bill for Public Act 86-664  http://www.ilga.gov/search/LISGSApage.asp?target=2651&submit1=Go&scope=hsetran86  When viewing any of the documents in pdf format you can perform a search for the text “2651” and go to those sections of the transcripts.

STATE OF ILLINOIS 86th GENERAL ASSEMBLY HOUSE OF REPRESENTATIVES TRANSCRIPTION DEBATE 22nd Legislative Day April 7, 1989 for the first reading of House Bill 2651  http://www.ilga.gov/house/transcripts/htrans86/HT040789.pdf

STATE OF ILLINOIS 86th GENERAL ASSEMBLY HOUSE OF REPRESENTATIVES TRANSCRIPTION DEBATE 35th Legislative Day May 4, 1989 where House Bill 2651 is passed on Short Debate  http://www.ilga.gov/house/transcripts/htrans86/HT050489.pdf

 STATE OF ILLINOIS 86th GENERAL ASSEMBLY HOUSE OF REPRESENTATIVES TRANSCRIPTION DEBATE 39th Legislative Day May 11, 1989 for the second reading of House Bill 2651  http://www.ilga.gov/house/transcripts/htrans86/HT051189.pdf

 2. STATE OF ILLINOIS 86th GENERAL ASSEMBLY HOUSE OF REPRESENTATIVES TRANSCRIPTION DEBATE 43rd Legislative Day May l8, 1989 (Page 232 – 238) Page 239, where more debate takes place, is missing from the transcript.http://www.ilga.gov/house/transcripts/htrans86/HT051889.pdf

Illinois Senate Transcripts

List of Senate Transcripts available which are responsive to a search for “2651”, the number of the House Bill for Public Act 86-664  http://www.ilga.gov/search/LISGSApage.asp?target=2651&submit1=Go&scope=sentran86  When viewing any of the documents in pdf format you can perform a search for the text “2651” and go to those sections of the transcripts.

STATE OF ILLINOIS 86th GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 38th Legislative Day June 13 , 1989 where it is reported that House Bill 2651 is “passed”.  http://www.ilga.gov/senate/transcripts/strans86/ST061389.pdf

STATE OF ILLINOIS 86th GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 38th Legislative Day May 22 , 1989 where the where the House asks for concurrence on the passage of House Bill 2651 by the Senate.  http://www.ilga.gov/senate/transcripts/strans86/ST052289.pdf

STATE OF ILLINOIS 86th GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 38th Legislative Day May 30 , 1989 where the Title of House Bill 2651 is read in the Senate.  http://www.ilga.gov/senate/transcripts/strans86/ST053089.pdf

STATE OF ILLINOIS 86th GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 38th Legislative Day June 1 , 1989 identifying House Bill 2651 as a Transportation Bill.  http://www.ilga.gov/senate/transcripts/strans86/ST060189.pdf

STATE OF ILLINOIS 86th GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 47th Legislative Day June l5, 1989 for the third reading of House Bill 2651, at Page 53 by Senator Topinka. How can the third reading take place on June 15, 1989, and the second reading (next link below) take place a day later on June 16, 1989?  http://www.ilga.gov/senate/transcripts/strans86/ST061589.pdf

STATE OF ILLINOIS 86th GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 48th Legislative Day June l6, 1989 for the second reading of House Bill 2651, even though at Page 55 Senator Lechowicz says it is the third reading. http://www.ilga.gov/senate/transcripts/strans86/ST061689.pdf

STATE OF ILLINOIS 86th GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 52nd Legislative Day June 22, 1989 where House Bill 2651 is declared “passed”.  http://www.ilga.gov/senate/transcripts/strans86/ST062289.pdf

Criminal Procedure

(725 ILCS 5/Art. 111) et. seq. 

3. (725 ILCS 5/11-3)(a)(b)

Taking into account the information found in the statutes, as well as the debates which speak to the “intent” of the legislature, one would be pressed to find where any light is prohibited unless permitted by the legislature. Saying this another way, it is expressed by the police and courts that unless a light is spelled out in the statutes as being permitted, they are otherwise excluded. Saying it yet another way, it is as if the legislature has some Constitutional power to regulate the lighting of vehicles. Can anyone find any such power in the Illinois Constitution? Of course not.

Let’s take the approach I’m sure some courts may take and say that the legislature has expressed an intent to limit “distracting lights”, and not just “flashing lights”. The question would be, is this a reasonable interpretation of the statute? If we focus only on (625 ILCS 5/12-212)(c), it would appear that way. However, (c) cannot be interpreted on its own without considering (a) and (b) as well. As I stated earlier, the statutes are not the law, they are a reflection of the law, but reflections can be distorted. You notice Public Act (P.A. 86-664) as the source for the statute. Public Act 86-664 is the offspring of House Bill 2651. This can be seen here in the Translation Table that ties a Public Act to its originating Bill.  http://www.ilga.gov/reports/static/PA86.pdf Public Act 86-664 can be seen on page 3 in the far upper right corner and 4 lines down the list. This indicates that Public Act 86-664 is tied to all the legislation pertaining to House Bill 2651. That is the Bill we follow for the analysis of this Act.

If one were to take (625 ILCS 5/12-212)(c) literally, as a stand-alone statement, it could be interpreted to mean that if you put any light on your car, that is not already authorized by “this Code”, even if you are not driving it, it would constitute an offense since such a light was placed on a vehicle. This is why the Code must be read in its entirety and “in context”. (625 ILCS 5/12-212)(a) begins with, and is binding upon all subsequent subsections of the act….”No person shall drive or move any vehicle or equipment upon any highway……” (c) makes no statement regarding driving or moving upon any highway. It merely states that any lighting not already authorized is prohibited. Therefore, it is necessary to consider (a) and (b) into the meaning of (c) as well.

The first requirement for a violation to exist is the question of the vehicle being driven or moved upon a highway. If this is on a parking lot or other private property there is no highway. You could put a red spotlight on your car and drive around your yard or a parking lot (with permission) and there would be no violation of this Act.

Second, (a) specified a “red light”. It specifies the color, so we cannot include others that are not red. It also states the light must be “visible from directly in front of the vehicle or equipment”. This is because the legislature has already provided for red lights displayed on vehicles when viewed directly from the front and without this qualification of “as otherwise provided by this Act” the law would contradict itself. This statement reserves the use of red lights when viewed from directly in front of the vehicle for a particular purpose. If it mentions red lights viewable from directly in front, it does not include red lights when viewed from underneath. The specifying or inclusion of a qualification excludes all others.

Subsection (b) provides for “flashing” lights, which are also spelled out in the Code. Since the purpose of flashing lights is to indicate caution or signal for a turn, the use of other flashing lights is prohibited if not communicating caution or signaling for a turn.

Subsection (c), when read in the context of (a) and (b), summarizes the intent and essentially states that “any red lights viewable from directly in front of the vehicle, or flashing lights not used to indicate caution or signal for a turn, not already authorized by this Code, shall be prohibited.” It does not claim domain over ALL lighting on ALL vehicles that is not already authorized in the Code.

So, if we look then to the Debates, we can also phrase the statement this way, “Unless previously authorized, this Code  prohibits the use of multi-colored flashing lights on vehicles other than those allowed under the current law, including red lights viewable from directly in front of the vehicle or equipment.”(Emphasis courtesy the statement by Representative Parcells)

This appears, to me, to be a reasonable reading of the law, taking into account the legislative intent as found within the House Debates. There is still the issue of improperly alleged charges by the police and prosecution, but that is for another post. I would recommend anyone considering to install these lights and “drive” (you really are not driving) upon a highway to print out the PDF of the House Debates and when confronted by the police, introduce this to them and ask them to read it. Once introduced during a traffic stop it is admissible as evidence in trial where it can be presented to a jury or judge. Even though the judge claims to be able to “instruct the jury as to what the law is”, he cannot assign intent not found within the letter of the law or the legislative debates. If you choose to go to court on the first appearance date, confront the prosecuting attorney with this information and see where it goes from there. I would recommend moving for a dismissal for lack of jurisdiction or insufficiency to state a charge.

1. (625 ILCS 5/12-212) (from Ch. 95 1/2, par. 12-212)
Sec. 12-212. Special restrictions on lamps. (a) No person shall drive or move any vehicle or equipment upon any highway with any lamp or device on the vehicle or equipment displaying a red light visible from directly in front of the vehicle or equipment except as otherwise provided in this Act.
(b) Subject to the restrictions of this Act, flashing lights are prohibited on motor vehicles except as a means for indicating a right or left turn as provided in Section 12-208 or the presence of a vehicular traffic hazard requiring unusual care as expressly provided in Sections 11-804 or 12-215.
(c) Unless otherwise expressly authorized by this Code, all other lighting or combination of lighting on any vehicle shall be prohibited.
(Source: P.A. 86-664.)

 

2.  This text has been slightly modified from the online version through some spelling and grammar correction, as well as some formatting. Nothing has been intentionally altered or deleted so as to portray anything different from the original version. Added emphasis is of my doing.

STATE OF ILLINOIS
86th GENERAL ASSEMBLY
HOUSE OF REPRESENTATIVES TRANSCRIPTION DEBATE
13rd Legislative Day May 18, 1989

House Bill 2651, 
Representative Parcells. Mr. Clerk, read
the Bill.

Clerk O’Brien: House Bill 2651, A Bill for an Act to amend the Illinois Vehicle Code. Third Reading of the Bill

Speaker Cullerton: Representative Parcells on House Bill 2651

STATE OF ILLINOIS
86th GENERAL ASSEMBL Y
HOUSE OF REPRESENTATIVE TRANSCRIPTION DEBATE

43rd Legislative Day May18 1989

Parcells: ‘Thank you, Mr. Speaker, Ladies and Gentlemen of the House. This is an Administration Bill of the State Police, and it has two or three different things..it’s literally a
cleanup Bill. It has to do with litter control, prohibits driving vehicles on the shoulder of highways, prohibits unauthorized use of flashing lights, unless they are
flashing lights that are in the law already,
 and it has some provisions for the prevention of…and treatment of those who have squealing tires. There was an Amendment
presented because there was some problem with how much mud and rocks and dirt would be dropped from farm vehicles. We amended that to suit the farm community, and as of now
know of no opposition to this Bill.’

Speaker Cullerton: ‘Lady’s moved for the passage of House Bill 2651. Is there any discussion? On that question, the Lady from Lasalle, Representative Breslin.

Breslin: Thank you, Mr. Speaker. Representative Parcells, one question. Does this Bill still provide that construction debris must be swept off of state highways by construction
companies?

Parcells: No. The mud, dirt, and rocks were removed.

Breslin: And that applies to everyone, that’s not just an agricultural Amendment?

Parcells: No. It applies to everything.

Breslin: ‘Thank you.

Speaker Cullerton: Further discussion? The Gentleman from Dekalb, Representative Countryman.

Countryman: Thank you, Mr. Speaker, will the Lady yield?

Speaker Cullerton: For a question?

Countryman: Does this Bill still provide for squealing tires?

Parcells: Yes it does, but there was a provision made that the squealing tires could be done on race courses and places that squealing tires are an automatic result of
what’s going on, but not for squealing tires of young teenagers.

Countryman: ‘Is that what it says?

Parcells: No, it doesn’t say young teenagers, it just says that they…you see there’s always been something in the law that the police can handle this, but they had to take the
people down to the County Building, they weren’t able to just give them a ticket. This way they will be able to give them a ticket when they’re out there showing off and
perhaps endangering their lives and other lives.

Countryman: Well, would this apply to like when I ride with you in your Camaro down in front of the Capitol Building and you squeal your tires, would you be guilty of an offense?

Parcells: I possibly could be, yes.

Countryman: And if one of my constituents or Representative Hartke had a load of hogs going to market and they squealed would they be guilty of an offense?

Parcells: That could be, yes.

Countryman: I don’t know, this is kind of a squeaker I think. You know?

Speaker Cullerton: Further discussion? Gentleman from Logan, Representative Robert Olson.

Olson,R: Will you yield? Will the Speaker Yield?

Parcells: Yes.

Speaker Cullerton: She…for a question?

Olson R: Yes.

Speaker Cullerton: Yes, indicates she’ll yield for a question.

Olson, R: A short question. There’s a part in here about flashing lights. Does that cover…what color of flashing lights are we speaking of?

Parcells: What has happened in the past was that people could use any color light. This designates that only certain colored lights…it prohibits the use of multi-colored flashing
lights on vehicles other than those allowed under current law. They…the police have discovered that it’s very dangerous when people decide to put pink, purple, lavender
lights on their car and their flashing them. Therefore those that are by law, already in the law are fine, but they don’t want you using other colors because it is a danger.

Olson,R: The yellow flashing lights on construction equipment and farm equipment…

Parcells: I beg your pardon?

Olson, R: The yellow flashing lights that is on construction equipment, farm equipment…would still be legal?

Parcells: Yes, they would.

Olson, R: Okay

Speaker Cullerton: Representative Williams, on the purple lights question.?

Williams: Yes. What is the penalty for violation of the squeaking, squealing and…making of other noises of your vehicle?’

Parcells: It would be at the discretion of the officer, it would probably $50.00 like a regular…

Williams: At the discretion of the officer?

Parcells: I mean he is giving you a ticket instead of taking you downtown and having to tow your car. He will give you regular ticket that would then be at the discretion of the court. Right now it’s a Class A misdemeanor.

Williams: Right now squeaking and squealing your tires is Glass A misdemeanor? You mean if…

Parcells: …You see it’s under the E.P.A. regulations right now, Title 35, sub-title H, Chapter 1, section 902.0125. The only way they can handle this is that way. That’s why
we’re bringing it into this code and they would…otherwise they’d have to file a long form complaint and take you down to the County Building and maybe drag your car down. So
this way the officer could stop you and give you a ticket and it would be…(It is an interesting aside to view the above I.E.P.A. regulation involving tire noise. It should cause you to wonder why the I.E.P.A. would be the source for such violations. Mark McCoy)

Williams: What about…?

Parcells: It’s a petty offense.

Williams: Does it apply to a1l motor vehicles or is it…I mean is it…what about airplanes or any other things of that nature. Is it just for cars or is it apply to other, what about bicycles?

Parcells: This applies only to operation on the highway…of motor vehicles. I suppose if you had your airplane on the highway you could be in trouble.

Williams: Do you deal with other things besides squeaking and squealing? Do you deal with lights and decorations or other things in here? I’m just curious…I’ve been
informed that lights and other things around the tail may be illegal under this, under this Act..it says auto lighting.’

ParcellsIt prohibits the use of multi-colored flashing lights on vehicles other than those allowed under the current law. And as I said this is a safety thing because it’s very
distracting to motorists when you are putting…purple, pink, yellow, orange cruise lights on your car and flashing them.

Williams: If the cab driver like they often do in Chicago were to do that, who would be responsible, the cab company or the driver?

Parcells: The driver.

Williams: …Well to the Amendment…or the Bill…or…what are we vote…the Bill. I understand what we’re trying to do…we’re…I’ve often been awakened by squealing,
screeching light flashing, automobiles riding at extreme speeds emanating all types of nasty noises and things. But, the thought of allowing someone to take and to have a
ticket and to be placed in…I don’t know…the police will maybe take them under custody and lock some guy up for this stuff and half the cabs in Chicago and who knows, low
riders and other people may be a real dangerous species here, which may be a violation of certain people…cultural things. So I would think at this time, that this Bill is
not quite in the perfect form. I think that even though it is not, is an annoying habit, don’t know if it should be a punishable habit and I think that this may not be the
right Bill at the right time.

Speaker Cullerton: Gentleman from Vermilion, Representative Black.

Black: ‘Well, thank you very much, Mr. Speaker, will the Sponsor yield?’ 

Speaker Cullerton: For a question?

Black: Yes, thank you.

Speaker Cullerton: She indicates she will.

Black: I…Representative just have one question to ask you. Is this Bill on Short Debate? Oh, thank you very much; that’s all I wanted to know.

Speaker Cullerton: ‘Representative Homer.

Homer: Question for the Sponsor, please.

Speaker Cullerton: She indicates she’ll yield for a question.

Homer: Representative Parcells, your Bill would prohibit squealing and screeching noises from vehicles tires. think I’ve heard and understand what those are, but it also
says, ‘or such other noise from the vehicles tires.’ Could you either specify and/or emulate what other noise you’re talking about?

Parcells: don’t know how to describe what other noise they might make, but I would like to answer, that answer to previous question, this is already punishable under the E.P.A. Act but there it is a Class A misdemeanor and we’re bringing it into this Act to make it a petty offense, so that a policeman can just write a ticket. But it is already punishable…I mean it is already an offense but a
much more serious one than we would have it in this Act.

Homer: Well, is this a moving violation for which you could lose your license?

Parcells: …if you’ll wait just a moment we’ll look that up.

Homer: While you’re looking notice that you’ve got it follows in sequence of these offenses, you’ve got:…DUI, illegal transportation of alcohol, reckless driving, draq racing and then screeking would be the next one. Are those in order of severity, or what was your thought?

Parcells: is called a reportable violation.

Homer: ‘It’s a what?

Parcells: Reportable violation.

Homer: ‘Reportable violation?

Parcells: Under 6201, and it’s the Secretary of State’s discretion….whether or not to assess points…

Homer: I see. So, if somebody…if somebody accelerated and squealed, screeched or made some other indescribable noise from the vehicle’s tires then that person could be fined up
to five hundred dollars and would receive points against the possible suspension of a drivers license by the Secretary of State.

Parcells: It is a traffic offense, but remember it always could have been punished as a Class A misdemeanor. So, this is a lessor…punishment, if you will, or a lessor offense to
make a petty offense in the Class A misdemeanor.

Homer: Well, what’s the thrust? I mean are you…do you feel that…the current penalties are too strong and your trying to make for lighter penalties for squealers?

Parcells: That’s part of it and the other part is, if the police

(This is the end of Page 238. Page 239.which is supposed to follow, was not included in the online PDF version)

3. (725 ILCS 5/111-3)    
Form of charge. 
    (a) A charge shall be in writing and allege the commission of an offense by: 
        (1) Stating the name of the offense; 
        (2) Citing the statutory provision alleged to have

    
been violated;
(3) Setting forth the nature and elements of the
    
offense charged;
        (4) Stating the date and county of the offense as
    
definitely as can be done; and
        (5) Stating the name of the accused, if known, and
    
if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.
    (b) An indictment shall be signed by the foreman of the Grand Jury and an information shall be signed by the State’s Attorney and sworn to by him or another.
A complaint shall be sworn to and signed by the complainant; Provided, however, that when a citation is issued on a Uniform Traffic Ticket or Uniform Conservation
Ticket (in a form prescribed by the Conference of Chief Circuit Judges and filed with the Supreme Court), the copy of such Uniform Ticket which is filed with the circuit court
constitutes a complaint to which the defendant may plead, unless he specifically requests that a verified complaint be filed.

4. (625 ILCS 5/4-103.2)

(7) a person:
(A) who is the driver or operator of a vehicle and is not entitled to the possession of that vehicle and who knows the vehicle is stolen or converted, or
(B) who is the driver or operator of a vehicle being used to transport or haul a vehicle or essential part of a vehicle and is not entitled to the possession of that vehicle or essential part being transported or hauled and who knows the transported or hauled vehicle or essential part is stolen or converted, who has been given a signal by a peace officer directing
him to bring the vehicle to a stop, to willfully fail or refuse to obey such direction, increase his speed, extinguish his lights or otherwise flee or attempt to elude the officer. The signal given by the peace officer may be by hand, voice, siren, or red or blue light. The officer giving the signal, if driving a vehicle, shall display the vehicle’s illuminated, oscillating, rotating or flashing red or blue lights, which when used in conjunction with an audible horn or siren would indicate that the vehicle is an official police vehicle. Such requirement shall not preclude the use of amber or white oscillating, rotating or flashing lights in conjunction with red or blue oscillating, rotating or flashing lights as required in Section 12-215 of this Code; or

(625 ILCS 5/11-1301) (from Ch. 95 1/2, par. 11-1301)
Sec. 11-1301. Stopping, standing or parking outside of business or residence district. 

(d) Any second division vehicle used exclusively for the collection of garbage, refuse, or recyclable material may stop or stand on the road in a business, rural, or residential district for the sole purpose of collecting garbage, refuse, or recyclable material. The vehicle, in addition to having its hazard lights lighted at all times that it is engaged in stopping or standing, shall also use its amber oscillating, rotating, or flashing light or lights as authorized under paragraph 12 of subsection (b) of Section 12-215, if so equipped.
(Source: P.A. 91-869, eff. 1-1-01.)

(625 ILCS 5/11-1421) (from Ch. 95 1/2, par. 11-1421)
Sec. 11-1421. Conditions for operating ambulances and rescue vehicles. 

2. The ambulance or rescue vehicle shall be equipped with a siren producing an audible signal of an intensity of 100 decibels at a distance of 50 feet from the siren, and with a lamp or lamps emitting an oscillating, rotating or flashing red beam directed in part toward the front of the vehicle, and these lamps shall have sufficient intensity to be visible at 500 feet in normal sunlight, and in addition to other lighting requirements, excluding those vehicles operated in counties with a population in excess of 2,000,000, may also operate with a lamp or lamps emitting an oscillating, rotating, or flashing green light;

(625 ILCS 5/12-215) (from Ch. 95 1/2, par. 12-215)
Sec. 12-215. Oscillating, rotating or flashing lights on motor vehicles. Except as otherwise provided in this Code: 

(a) The use of red or white oscillating, rotating or flashing lights, whether lighted or unlighted, is prohibited except on:
1. Law enforcement vehicles of State, Federal or local authorities;
2. A vehicle operated by a police officer or county coroner and designated or authorized by local authorities, in writing, as a law enforcement vehicle; however, such designation or authorization must be carried in the vehicle;
2.1. A vehicle operated by a fire chief who has completed an emergency vehicle operation training course approved by the Office of the State Fire Marshal and designated or authorized by local authorities, in writing, as a fire department, fire protection district, or township fire department vehicle; however, the designation or authorization must be carried in the vehicle, and the lights may be visible or activated only when responding to a bona fide emergency;
3. Vehicles of local fire departments and State or federal firefighting vehicles;
4. Vehicles which are designed and used exclusively as ambulances or rescue vehicles; furthermore, such lights shall not be lighted except when responding to an emergency call for and while actually conveying the sick or injured;
5. Tow trucks licensed in a state that requires such lights; furthermore, such lights shall not be lighted on any such tow truck while the tow truck is operating in the State of Illinois;
6. Vehicles of the Illinois Emergency Management Agency, vehicles of the Illinois Department of Public Health, and vehicles of the Department of Nuclear Safety;
7. Vehicles operated by a local or county emergency management services agency as defined in the Illinois Emergency Management Agency Act;
8. School buses operating alternately flashing head lamps as permitted under Section 12-805 of this Code; and
9. Vehicles that are equipped and used exclusively as organ transplant vehicles when used in combination with blue oscillating, rotating, or flashing lights; furthermore, these lights shall be lighted only when the transportation is declared an emergency by a member of the transplant team or a representative of the organ procurement organization.
(b) The use of amber oscillating, rotating or flashing lights, whether lighted or unlighted, is prohibited except on:
1. Second division vehicles designed and used for towing or hoisting vehicles; furthermore, such lights shall not be lighted except as required in this paragraph 1; such lights shall be lighted when such vehicles are actually being used at the scene of an accident or disablement; if the towing vehicle is equipped with a flat bed that supports all wheels of the vehicle being transported, the lights shall not be lighted while the vehicle is engaged in towing on a highway; if the towing vehicle is not equipped with a flat bed that supports all wheels of a vehicle being transported, the lights shall be lighted while the towing vehicle is engaged in towing on a highway during all times when the use of headlights is required under Section 12-201 of this Code;
2. Motor vehicles or equipment of the State of Illinois, local authorities and contractors; furthermore, such lights shall not be lighted except while such vehicles are engaged in maintenance or construction operations within the limits of construction projects;
3. Vehicles or equipment used by engineering or survey crews; furthermore, such lights shall not be lighted except while such vehicles are actually engaged in work on a highway;
4. Vehicles of public utilities, municipalities, or other construction, maintenance or automotive service vehicles except that such lights shall be lighted only as a means for indicating the presence of a vehicular traffic hazard requiring unusual care in approaching, overtaking or passing while such vehicles are engaged in maintenance, service or construction on a highway;
5. Oversized vehicle or load; however, such lights shall only be lighted when moving under permit issued by the Department under Section 15-301 of this Code;
6. The front and rear of motorized equipment owned and operated by the State of Illinois or any political subdivision thereof, which is designed and used for removal of snow and ice from highways;
(6.1) The front and rear of motorized equipment or vehicles that (i) are not owned by the State of Illinois or any political subdivision of the State, (ii) are designed and used for removal of snow and ice from highways and parking lots, and (iii) are equipped with a snow plow that is 12 feet in width; these lights may not be lighted except when the motorized equipment or vehicle is actually being used for those purposes on behalf of a unit of government;
7. Fleet safety vehicles registered in another state, furthermore, such lights shall not be lighted except as provided for in Section 12-212 of this Code;
8. Such other vehicles as may be authorized by local authorities;
9. Law enforcement vehicles of State or local authorities when used in combination with red oscillating, rotating or flashing lights;
9.5. Propane delivery trucks;
10. Vehicles used for collecting or delivering mail for the United States Postal Service provided that such lights shall not be lighted except when such vehicles are actually being used for such purposes;
11. Any vehicle displaying a slow-moving vehicle emblem as provided in Section 12-205.1;
12. All trucks equipped with self-compactors or roll-off hoists and roll-on containers for garbage or refuse hauling. Such lights shall not be lighted except when such vehicles are actually being used for such purposes;
13. Vehicles used by a security company, alarm responder, or control agency;
14. Security vehicles of the Department of Human Services; however, the lights shall not be lighted except when being used for security related purposes under the direction of the superintendent of the facility where the vehicle is located; and
15. Vehicles of union representatives, except that the lights shall be lighted only while the vehicle is within the limits of a construction project.
(c) The use of blue oscillating, rotating or flashing lights, whether lighted or unlighted, is prohibited except on:
1. Rescue squad vehicles not owned by a fire department and vehicles owned or operated by a:voluntary firefighter; paid firefighter; part-paid firefighter; call firefighter; member of the board of trustees of a fire protection district; paid or unpaid member of a rescue squad; paid or unpaid member of a voluntary ambulance unit; or paid or unpaid members of a local or county
emergency management services agency as defined in the Illinois Emergency Management Agency Act, designated or authorized by local authorities, in writing, and carrying that designation or authorization in the vehicle. However, such lights are not to be lighted except when responding to a bona fide emergency.
Any person using these lights in accordance with this subdivision (c)1 must carry on his or her person an identification card or letter identifying the bona fide member of a fire department, fire protection district, rescue squad, ambulance unit, or emergency management services agency that owns or operates that vehicle. The card or letter must include:
(A) the name of the fire department, fire protection district, rescue squad, ambulance unit, or emergency management services agency;
(B) the member’s position within the fire department, fire protection district, rescue squad, ambulance unit, or emergency management services agency;
(C) the member’s term of service; and
(D) the name of a person within the fire department, fire protection district, rescue squad, ambulance unit, or emergency management services agency to contact to verify the information provided.
2. Police department vehicles in cities having a population of 500,000 or more inhabitants.
3. Law enforcement vehicles of State or local authorities when used in combination with red oscillating, rotating or flashing lights.
4. Vehicles of local fire departments and State or federal firefighting vehicles when used in combination with red oscillating, rotating or flashing lights.
5. Vehicles which are designed and used exclusively as ambulances or rescue vehicles when used in combination with red oscillating, rotating or flashing lights; furthermore, such lights shall not be lighted except when responding to an emergency call.
6. Vehicles that are equipped and used exclusively as organ transport vehicles when used in combination with red oscillating, rotating, or flashing lights; furthermore, these lights shall only be lighted when the transportation is declared an emergency by a member of the transplant team or a representative of the organ procurement organization.
7. Vehicles of the Illinois Emergency Management Agency, vehicles of the Illinois Department of Public Health, and vehicles of the Department of Nuclear Safety, when used in combination with red oscillating, rotating, or flashing lights.
8. Vehicles operated by a local or county emergency management services agency as defined in the Illinois Emergency Management Agency Act, when used in combination with red oscillating, rotating, or flashing lights.
(c-1) In addition to the blue oscillating, rotating, or flashing lights permitted under subsection (c), and notwithstanding subsection (a), a vehicle operated by a voluntary firefighter, a voluntary member of a rescue squad, or a member of a voluntary ambulance unit may be equipped with flashing white headlights and blue grill lights, which may be used only in responding to an emergency call.
(c-2) In addition to the blue oscillating, rotating, or flashing lights permitted under subsection (c), and notwithstanding subsection (a), a vehicle operated by a paid or unpaid member of a local or county emergency management services agency as defined in the Illinois Emergency Management Agency Act, may be equipped with white oscillating, rotating, or flashing lights to be used in combination with blue oscillating, rotating, or flashing lights, if authorization by local authorities is in writing and carried in the vehicle.
(d) The use of a combination of amber and white oscillating, rotating or flashing lights, whether lighted or unlighted, is prohibited except motor vehicles or equipment of the State of Illinois, local authorities, contractors, and union representatives may be so equipped; furthermore, such lights shall not be lighted on vehicles of the State of Illinois, local authorities, and contractors except while such vehicles are engaged in highway maintenance or construction operations within the limits of highway construction projects, and shall not be lighted on the vehicles of union representatives except when those vehicles are within the limits of a construction project.
(e) All oscillating, rotating or flashing lights referred to in this Section shall be of sufficient intensity, when illuminated, to be visible at 500 feet in normal sunlight.
(f) Nothing in this Section shall prohibit a manufacturer of oscillating, rotating or flashing lights or his representative from temporarily mounting such lights on a vehicle for demonstration purposes only.
(g) Any person violating the provisions of subsections (a), (b), (c) or (d) of this Section who without lawful authority stops or detains or attempts to stop or detain another person shall be guilty of a Class 2 felony.
(h) Except as provided in subsection (g) above, any person violating the provisions of subsections (a) or (c) of this Section shall be guilty of a Class A misdemeanor.
(Source: P.A. 93-181, eff. 1-1-04; 93-725, eff. 1-1-05; 93-794, eff. 7-22-04; 93-829, eff. 7-28-04; 94-143, eff. 1-1-06; 94-270, eff. 1-1-06; 94-331, eff. 1-1-06; 94-730, eff. 4-17-06.)

(625 ILCS 5/12-216) (from Ch. 95 1/2, par. 12-216)
Sec. 12-216. Operation of oscillating, rotating or flashing lights. Oscillating, rotating or flashing lights located on or within police vehicles in this State shall be lighted whenever a police officer is in pursuit of a violator of a traffic law or regulation.
(Source: P.A. 85-830.)

An analysis of the proposed Occupancy Code for Collinsville, Illinois

Collinsville_Proposed_Occupancy_Codes

Detailed Analysis of the Code Here

Related Story Here

So, what is it about a city council that makes them believe they have the right to pass an ordinance requireing anyone to procure a permit to live in their own home? Well, for one, if one claims “residency” within the corporate municipality then are then deemed to be considered to be regulated by the rules (by-laws) and ordinances which pertain only to that corporate body. Likewise, for U.S. citizens, there are no Constitutional protections since much of what regulates their behavior is codes, and regulations.

Most people do not understand what a municipality is. Here is an excerpt from a page I have which explains Municipal Law:

B. [1.2] General Concepts and Definitions

A “municipal corporation” has been defined as a public corporation created by government for political purposes and having subordinate and local powers of legislation. People ex rel.Mortell v. Bergman, 253 Ill. 469, 97 N.E. 695 (1912); BLACK’S LAW DICTIONARY, p. 1042 (8th ed. 2004). As they exist today, these public corporations can be compared with private corporations. Just as private corporations have a charter under which they are organized, so, too, municipalities have a “charter” in the sense that they are organized under the general law as it exists in the Illinois Municipal Code (Code), 65 ILCS 5/1-1-1, et seq. Just as shareholders control the operations of a private corporation by ratifying a charter and electing a board of directors, the citizens comprising the electorate control the workings of the public corporation by opting to form either a city or a village under one of the forms provided in the Code and by electing officials (city council or village board), who in turn carry on the business (government) and affairs of the city or village by passing and adopting ordinances (akin to bylaws passed by the board of directors of a private corporation).

[My Commentary] So, if we look at it in these terms, we could say that Ford is a corporation (municipality) that is owned by the shareholders (Citizens/electors) who in turn elect the Officers, or Board (City Council, Mayor…) to perform the duties set forth in the Charter which were written to control the function of the “body” in achieving the ends of the shareholder/citizen. This body, in turn, passes ordinances (By-laws) that regulate the functions of that body in meeting the objectives of the shareholder/citizen. The shareholders believe that their dividends (benefits) are being wasted on providing health care coverage to workers (City employees) who smoke, and therefore want to make Ford a non-smoking company (municipality). The Board of Ford (City council) passes an ordinance (By-law) that prohibits smoking for employees of Ford (City employees). Now, does that mean that Ford can force the smoking shareholders to quit smoking as well? No. The shareholders are not subject to the regulations governing the operation of the corporate body of Ford, the same way that Citizens are not subject to the regulations (ordinances) of the corporate body (Collinsville).

So, how do we, the People, create a government that is laid out with a charter and by-laws for the purpose of securing our freedoms and liberty, as well as performing in a collective capacity that which would be otherwise inefficient or cumbersome for us to perform individually? Why, you take up “residency”, of course. Normally, Citizens retain all of their natural rights that are protected by the Constitution. However, if you want to derive any of the “corporate benefits” of the “corporation”, you must become a resident of that corporation and therefore subject to the governing by-laws of that corporation. You do not need to be a resident to walk into a public library and read a book. However, in order to take that book out of the library’s control and have it entrusted to you for safe-keeping and return, you must be a resident of that corporate body which subjects you to the ascribed penalties for violating your agreement with the library for the use and safe return of that book. That library card, that you have to sign (give your permission and therein claim the status of resident) your name and claim residency. That contract is then enforceable with fines and punishment for your violating any provision of that agreement.

Residents derive benefits or exercise privileges that Citizens do not. If your tax dollars are going to fund a function of government then you have paid your way and are asking for nothing more than a Citizen is entitled to. However. if you are deriving a benefit that cannot be traced to a service provided through your payment of taxes, then you are acting as a resident. Most of the things provided by government in its proper capacity are paid by our taxes, i.e.., water, sewer, trash, roads…etc. The City gets you to claim the status of resident in order to receive these services, which is a trap, but you are not automatically conscripted to the ordinances unless they specifically apply to a particular benefit derived.

Word trickery

If you read the proposed ordinance you will see a section called Definitions. What happens is, the drafters of the legislation use words which have common meanings, but used in a particular way which possess a “special” or “legal” meaning. They are terms, not words. The legislation imposes a duty, and penalties, upon persons. Are you a person? Look at the definition:

“Person means any natural person; firm; joint venture, including all participants; partnership, including all partners; association, social club, or fraternal organization, including all officers and directors; corporation, including all officers, directors and significant stockholders; estate; trust; business trust; receiver; or any other group or combination acting as a unit.”

Of course, most of you will see the term “natural person” and believe you are natural and therefore a natural person. A natural person is a flesh-and-blood human being, but one which is charged with a fiducary obligation or acting as a representative for an incorporeal entity. All natural persons are flesh-and-blood but not all flesh-and-blood are natural persons.

There is a canon of statutory construction called ejusdem generis which reads:

Ejusdem generis (Of the same kinds, class, or nature)
When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where “cars, motor bikes, motor powered vehicles” are mentioned, the word “vehicles” would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

Look at the definition of the word person above. What follows? Firm, joint venture, partnership, association… these are  not “natural” things. These are organizations of individuals, many of which are formed pursuant to an act found in statutes. Nowhere does an individual human being come into play unless they are part of a legal structure. A natural person is a flesh-and-blood human being who has taken a position or joined as a member of some other incorporeal or fictional body.

So, what does this mean? People have natural, unalienable rights. Corporations, as well as other legal fictions, do not. Constitutions are created by People to create another legal fiction called the State for the purpose of protecting their natural, unalienable rights. The State is nothing more than the People acting in a collective capacity and forming a political body. The State is not some natural manifestation which possesses some supernatural control or authority over the People. The People, being the creators of the Constitution have the power to permit artificial, incorporeal entities like corporations, partnerships, associations… to be created and therefore, make conditional their existence to the will of the people. People cannot make anybody else’s existence or exercise of rights conditional.

Looking at the definition of person in the ordinance, what is being regulated are things owing their existence to a legal construct. If there is a legal nexus between the entity and the State where a registration or permit has been issued or recognized then it is a legal fiction and thereby subject to regulation. In the case of this legislation, a landlord who is a private individual owning and renting property has an obligation to provide a safe abode for his tenants and is subject to any harm caused by his neglect. He has a duty. However, as a tenant, people have the right to rent accommodations which may appear less than desirable to outside observers. Provided the landlord honors his duty to ensure there are no hazards which endanger the health or life of a tenant he has fulfilled his obligation.

I would recommend the following approach should the ordinance pass, and I believe it will because most of the people serving on the Council are ignorant, arrogant, self-serving, Oligarchs. Most of them have probably not even read the Constitution of Illinois or of the United States. What needs to happen is massive civil disobedience. If people do not possess the temerity to assert their liberty then I say they deserve whatever they get. Otherwise, I would take a property owned by a private individual, not one acting in a corporate capacity such as an LLC or other entity, and through a Quit Claim Deed take “ownership” for valuable consideration of $1 with a promise to release the property back after 30 days for the same valuable consideration. What this would do is create a nexus where I would take ownership and thereby be “required” to procure an occupancy permit to occupy the premises. I would then take up “occupancy” and wait for the ensuing litigation. In the mean-time, I would expect an information campaign relating to this matter to be disseminated to the public, as well as promoting the people’s right to exercise jury nullification as their right. Hopefully, a jury would not convict or I would just refuse to comply, relying on legal arguments I have previously confronted various governmental bodies with. In-short, I would not comply.

I will not make myself available for such a tactic without the explicit commitment of others desiring to challenge and confront this ordinance. I will also not put myself in harm’s way for people who prefer their chains, but prefer them under their terms. I favor NO chains. That said, I will await contact……

Mark McCoy

UPDATE:

Since the last post it seemed as though the City was going to mothball the issue. Recently it has come to light that there is another push to pass this ordinance. Not much has changed in the wording. The intent is the same, viz., to deceive the “residents” by claiming an interest in health, safety, welfare, and morals of the people (the so-called Police Power).

I will be updating this post with information as I do more research. I would first like to address the Police Power, it’s limitations, interpretations, and applications.

When a municipality has the power to tax, it may raise revenue through a license fee payable in connection with the taxable subject matter. See, e.g., Rozner v. Korshak, 55 Ill.2d 430, 303 N.E.2d 389 (1973) (sustaining Cook County’s vehicle licensing ordinance as home rule revenue measure). When authorized by statute, a municipality may also charge license fees in connection with the exercise of its regulatory police powers, but it may not use the fees to raise revenue substantially in excess of the cost of regulation. In short, a municipality may license for revenue purposes only when it has the power to tax the subject matter of the license. Under a regulatory ordinance, the license fees must bear some reasonable relationship to the costs of regulation. Quad Canteen Service Corp. v. Ruzak, 85 Ill.App.3d 256, 406 N.E.2d 616, 40 Ill.Dec. 610 (2d Dist. 1980). The mere probability that the license fees may in some degree exceed the cost of administration and inspection under a regulatory ordinance will not render the ordinance invalid. Village of Roxana v. Costanzo, 41 Ill.2d 423, 243 N.E.2d 242 (1968). The costs of printing and issuing the license tags, collecting the license fees, keeping records of the licenses issued and fees collected, and inspecting and testing the subject of regulation have been recognized as elements of the cost of administration and inspection. Larson v. City of Rockford, 371 Ill. 441, 21 N.E.2d 396 (1939).

A licensing ordinance that contains genuine regulatory provisions cannot, on its face, be condemned as a revenue device. Id. However, license fees may be so grossly excessive as to be deemed arbitrary and unreasonable as a matter of law. City of Chicago Heights v. Public Service Company of Northern Illinois, 408 Ill. 604, 97 N.E.2d 807 (1951). Generally, in the absence of proof to the contrary, it must be presumed that a reasonable relationship exists between the license fees and the costs of administration and inspection. Gibbons v. City of Chicago, 34 Ill.2d 102, 214 N.E.2d 740 (1966). The presumptive validity of a licensing ordinance must be rebutted by clear and affirmative evidence. Aladdin’s Castle, Inc. v. Village of North Riverside, 66 Ill.App.3d 542, 383 N.E.2d 1316, 23 Ill.Dec. 289 (1st Dist. 1978). When it is found that the license fees greatly exceed the costs of administration and inspection so as to render the licensing ordinance a revenue measure rather than a regulatory device, enforcement of the ordinance may be enjoined and the license fees paid under protest ordered refunded. Quad Canteen Service, supra.

Compare Quad Canteen Service, supra, with A & H Vending Service, Inc. v. Village of Schaumburg, 168 Ill.App.3d 61, 522 N.E.2d 188, 118 Ill.Dec. 733 (1st Dist. 1988), in which the court held that licensing fees imposed by home rule municipalities have a valid regulatory, as opposed to revenue-generating, purpose even though revenue generated by the fee exceeded by a five-to-one margin the municipality’s cost of inspection. See also Oak Park Trust & Savings Bank v. Village of Mount Prospect, 181 Ill.App.3d 10, 536 N.E.2d 763, 129 Ill.Dec. 713 (1st Dist. 1989), in which the court held that a landlord-tenant ordinance contained genuine regulatory provisions and the license fee assessed pursuant to the ordinance was not an improper revenue raising measure since the purpose of the licensing provision was to ensure that multiunit dwellings in the village met the requirements, rules, and regulations of the village code. Moreover, the license fees were reasonably related to costs of regulation when evidence was presented to indicate that the fees charged were insufficient to cover all necessary costs of regulation.

In Alnoa G. Corp. v. City of Houston, Texas, 563 F.2d 769 (5th Cir. 1977), the Fifth Circuit Court of Appeals held that special assessments are taxes for which no federal court relief may be had if the state provides a plain, speedy, and efficient remedy. However, in Bung’s Bar & Grille, Inc. v. Township Council of Township of Florence, 206 N.J.Super. 432, 502 A.2d 1198 (1985), the Superior Court of New Jersey held that if an assessment exceeds the value of the benefit, is arbitrary, exceeds the limits of the police power, and deprives a person of property without due process of law, it constitutes a violation of the Fourteenth Amendment and, therefore, the plaintiffs could claim attorneys’ fees in defending the action under 42 U.S.C. §1988. In addition, see Bowman v. City of Franklin, 980 F.2d 1104 (7th Cir. 1992), relative to an attack on a special assessment proceeding in federal court.

[A] municipality’s right to regulate its streets “must find basis in the doctrine of overruling necessity, or bear some substantial relation to the public good.” . . . [A] municipality’s regulatory and police powers over its public streets are subject to a reasonableness limitation. . . . A determination of reasonableness must be made in each case by weighing the particular circumstances in light of the aim of the restriction. . . . Further, one who challenges an ordinance as failing this test of minimum rationality bears the burden of proving “by clear and affirmative evidence that the ordinance constitutes arbitrary, capricious and unreasonable municipal action, that there is no permissible interpretation which justifies its adoption, or that it will not promote the safety and general welfare of the public.” [Citations omitted.] 664 N.E.2d at 299.

The “police power” of government is its authority to enact laws, including zoning ordinances, in furtherance of the public health, safety, morals, and general welfare. County of Cook v. Priester, 62 Ill.2d 357, 342 N.E.2d 41 (1976); Sternaman v. County of McHenry, 454 F.Supp. 240 (N.D.Ill. 1978). The police power is an inherent attribute of sovereignty: it is the power necessary to conduct and maintain government. Although the police power defies precise definition, it was described as follows by the court in State Public Utilities Commission ex rel. Quincy Ry. v. City of Quincy, 290 Ill. 360, 125 N.E. 374, 375 – 376 (1919): The police power of the state has never been exactly defined or circumscribed by fixed limits. It is considered as being capable of development and modification within certain limits, so that the powers of governmental control may be adequate to meet changing social, economic and political conditions. In a general way it may be defined “as comprehending the making and enforcement of all such laws, ordinances and regulations as pertain to the comfort, safety, health, convenience, good order and welfare of the public.” Wice v. Chicago and Northwestern Railway Co., 193 Ill. 351; 6 R. C. L. 189. Since the police power is reserved to the states by the Constitution (Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 64 L.Ed. 194, 40 S.Ct. 106 (1919)), local government has no inherent police power. It has only those powers delegated to it by the state constitution or statute. Tuftee v. County of Kane, 76 Ill.App.3d 128, 394 N.E.2d 896, 31 Ill.Dec. 694 (2d Dist. 1979); Cederberg v. City of Rockford, 8 Ill.App.3d 984, 291 N.E.2d 249 (2d Dist. 1972); Park Ridge Fuel & Material Co. v. City of Park Ridge, 335 Ill. 509, 167 N.E. 119 (1929).

In Illinois, the statutory provisions described in §§2.6, 2.8, and 2.9 below constitute the state delegation of zoning powers to non-home rule units of local government (municipalities, counties, and townships respectively). The Illinois Constitution vests home rule units of local government with police power. The Supreme Court in Kanellos v. County of Cook, 53 Ill.2d 161, 290 N.E.2d 240, 243 (1972), explained: The concept of home rule adopted under the provisions of the 1970 constitution was designed to drastically alter the relationship which previously existed between local and State government. Formerly, the actions of local governmental units were limited to those powers which were expressly authorized, implied or essential in carrying out the legislature’s grant of authority. Under the home-rule provisions of the 1970 constitution, however, the power of the General Assembly to limit the actions of home-rule units has been circumscribed and home-rule units have been constitutionally delegated greater autonomy in the determination of their government and affairs. To accomplish this independence the constitution conferred substantial powers upon home-rule units subject only to those restrictions imposed or authorized therein.

“. . . An ordinance will be presumed to be valid, and the one attacking [it] bears the burden of demonstrating its invalidity. The challenging party must establish by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare. [Citations.]” Tomasek v. City of Des Plaines (1976), 64 Ill.2d 172, 179 – 80. In City of Carbondale v. Brewster, 78 Ill.2d 111, 398 N.E.2d 829, 831, 34 Ill.Dec. 838 (1979), the court similarly stated: To be a valid exercise of police power, the legislation must bear a reasonable relationship to one of the . . . interests which is sought to be protected, and the means adopted must constitute a reasonable method to accomplish such objective. . . . Although the determination of reasonableness is a matter for the court, the legislature has broad discretion to determine not only what the interests of the public welfare require but what measures are necessary to secure such interest. . . . The court will not disturb a police regulation merely where there is room for a difference of opinion as to its wisdom, necessity and expediency. [Emphasis added.] [Citations omitted.]

See also Hewette v. Carbondale Zoning Board of Appeals, 261 Ill.App.3d 803, 634 N.E.2d 1223, 199 Ill.Dec. 869 (5th Dist. 1994). Accordingly, the plaintiff must do more than establish that its proposed use is reasonable in order to prevail in a challenge to the constitutionality of a zoning ordinance. Quoting Buhrinaster v. County of DuPage, 16 Ill.App.3d 212, 305 N.E.2d 722, 725 (2d Dist. 1973), the court in Coney v. County of DuPage, 51 Ill.App.3d 980, 367 N.E.2d 152, 153, 9 Ill.Dec. 718 (2d Dist. 1977), wrote: Faced with this presumptive validity of the zoning ordinance, it was incumbent upon the plaintiffs to establish that the legislative decision as to the subject property is clearly unreasonable, rather than that the property could reasonably be classified as plaintiffs wished. Kambich v. Village of Riverwoods, 308 Ill.App.3d 772, 721 N.E.2d 709, 242 Ill.Dec. 430 (2d Dist. 1999).

See also Zeitz, supra; American National Bank & Trust Company of Rockford v. City of Rockford, 55 Ill.App.3d 806, 371 N.E.2d 337, 13 Ill.Dec. 620 (2d Dist. 1977). Even if a municipality admits the invalidity of its zoning restriction, the plaintiff carries the burden of proving by clear and convincing evidence that prohibition of the proposed use is unreasonable. National Boulevard Bank of Chicago v. Village of Schaumburg, 83 Ill.2d 228, 415 N.E.2d 333, 47 Ill.Dec. 328 (1980).In Pioneer Trust & Savings Bank v. County of McHenry, 41 Ill.2d 77, 241 N.E.2d 454, 459 (1968), the court stated that if the gain to the public is small when compared with the hardship imposed upon the individual property owner by the restriction . . . no valid basis for an exercise of the police power exists.

The Wes Ward court relied on People ex rel. Barrett v. Thillens, 400 Ill. 224, 79 N.E.2d 609, 613 (1948): It is a fundamental and well-established rule, both in the United States courts and in the courts of this State, as a firmly settled constitutional principle, that every citizen is guaranteed the right to engage in any lawful, useful and harmless business or trade, and it is not within the constitutional authority of the State legislature, in the exercise of police power, to interfere with the rights of the individual to carry on a legitimate business, where no interest of the public safety, welfare or morals is damaged or threatened. 355 N.E.2d at 136.
The Wes Ward court went on to reason that if an ordinance tends, in some degree, to prevent an offense or preserve the public health, morals, safety, or welfare, then the ordinance is within the police power of the state. The Peoria ordinance met this low level of scrutiny. The court also found no violation of equal protection even though the ordinance contained exemptions for state licensed professions like hospital and nursing home employees, healing arts practitioners, barbers, and cosmetologists.

As noted in §5.4 above, the power of a municipality to license is strictly construed against the municipality. The principle of ejusdem generis — which holds that when general words follow an enumeration of specific things such general words are interpreted as applying only to things of the same general kind as those specifically mentioned — is implicit in any strict construction of the law. However, the courts have not always agreed on when to apply that principle. The courts have, in several instances, applied the principle in interpreting licensing powers under Illinois Municipal Code §11-42-3, which authorizes the corporate authorities of each municipality to license, tax, locate, and regulate all places of business of dealers in junk, dismantled or wrecked motor vehicles or parts thereof, rags, and any secondhand article whatsoever. 65 ILCS 5/11-42-3. In City of Chicago v. Moore, 351 Ill. 510, 184 N.E. 621 (1933), a secondhand store license ordinance was declared invalid as applied to a store selling secondhand books. The court held that this power to license extended only to those secondhand stores that carried on a business similar to junk shops. Identical reasoning in Bullman v. City of Chicago, 367 Ill. 217, 10 N.E.2d 961 (1937), removed various automobile-related businesses from municipal regulation under this section (note that Bullman was decided under a previous version of the statute, and the current statute does allow dismantled or wrecked motor vehicle dealers as a licensable subject), as did City of Chicago v. Stone, 328 Ill.App. 345, 66 N.E.2d 100 (1st Dist. 1946), regarding used musical instruments, and City of Kewanee v. Riverside Industrial Materials Co., 21 Ill.App.2d 416, 158 N.E.2d 86 (2d Dist. 1959), regarding industrial scrap.
On the other hand, Code §11-42-5 reads: The corporate authorities of each municipality may license, tax, regulate, or prohibit hawkers, peddlers, pawnbrokers, itinerant merchants, transient vendors of
merchandise, theatricals and other exhibitions, shows, and amusements and may license, tax, and regulate all places for eating or amusement.

The court in Stiska v. City of Chicago, 405 Ill. 374, 90 N.E.2d 742 (1950), refused to apply the principle of ejusdem generis. The plaintiffs argued that the term “amusements” was within the class of theatricals and other exhibitions, thereby not applying to bowling, billiards, and pool halls. The city, on the other hand, argued that the term “amusements” was not within the class of “theatricals and other exhibitions” since it was not strictly an item of that series in point of syntax. The court held that if the statute was limited to exhibitive entertainment, such an interpretation would render the term “shows, and amusements” superfluous and devoid of meaning, which the court was not willing to do. “The rule of ejusdem generis is only a rule of construction to aid in ascertaining and giving effect to the legislative intent. . . . It cannot be applied to defeat the evident purpose of the statute or to restrict the scope of subjects the legislature intended to include.” [Citation omitted.] 90 N.E.2d at 747. See also Lamere v. City of Chicago, 391 Ill. 552, 63 N.E.2d 863 (1945).

Although statutes authorizing licensing are to be strictly construed against the municipality, it should also be noted that ordinances are presumptively valid. In Aladdin’s Castle, Inc. v. Village of North Riverside, 66 Ill.App.3d 542, 383 N.E.2d 1316, 23 Ill.Dec. 289 (1st Dist. 1978), the court upheld the validity of an ordinance licensing and regulating coin-operated amusement devices. The village relied on Code §§11-42-2 (“The corporate authorities of each municipality may license, tax, regulate, or prohibit pinball, or bowling alleys, billiard, bagatelle, pigeon-hole, pool, or any other tables or implements kept for a similar purpose in any place of public resort.”) and 11-42-5 (quoted above) in passing the ordinance. Among other things, the ordinance contained an age restriction, a space restriction, and a maximum limit on the number of machines per establishment.

One of the plaintiff’s contentions was that its property and liberty rights in the premises and its business were violated. The court acknowledged the existence of the plaintiff’s private rights but stated that a valid exercise of the police power superseded those rights. In determining that the ordinance was a valid exercise of the police power, the court stated: [T]he provisions of Ordinance No. 75-0-16 in issue are clothed with presumptive validity which must be rebutted by clear and affirmative evidence that their adoption constitutes arbitrary, capricious, and unreasonable municipal action; that there is no permissible interpretation which justifies their adoption; or that they will not promote the safety or general welfare of the people of the village. 383 N.E.2d at 1319.

Grants of power to corporate authorities may come from separate sources: “The authority of a municipality to adopt an ordinance may be derived from a single grant or a combination of enumerated powers.” City of Chicago v. R. & X. Restaurant, Inc., 369 Ill. 65, 15 N.E.2d 725, 726 (1938). The power to license may be inferred from several sources of statutory power, even though none of them grants explicit authority to license. The leading case for this proposition is Father Basil’s Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805 (1946). The court sustained a Chicago ordinance regulating nursing homes although it was based on no explicit grant of
authority.

In so doing, the court relied on several sections of the Code, including §§11-30-4 and 11-8-2 dealing with the construction of buildings and prevention of fire hazards (65 ILCS 5/11- 30-4, 5/11-8-2) and §11-20-5 (65 ILCS 5/11-20-5) dealing with the general maintenance of health and suppression of disease. The court ruled that under these delegations of police power from the state, a city may regulate any occupation or business that the unrestricted pursuit of might either injuriously affect the health of the citizens or subject them to danger from fire. The court went on to state: If the regulation of certain conditions affecting the public safety has been delegated to a city and the efficient regulation of such conditions requires the conduct of a business peculiarly affected by them to be controlled by the limitations of a licensing ordinance, the power of the city to adopt such an ordinance will be necessarily implied. 65 N.E.2d at 812.

On the other hand, an attempt to license an occupation unnamed in the statutes by pooling authority from a combination of powers to license related businesses was invalidated in Ives v. City of Chicago, 30 Ill.2d 582, 198 N.E.2d 518 (1964). In Ives, the city attempted to sustain an authority to license general contractors by referring to the power to license particular kinds of contractors under numerous sections of the Code, including air conditioning and refrigeration contractors (§11-32-1), electrical contractors (§11-33-1), persons in charge of steam boilers (§11- 34-1), plumbers (§11-35-1), and masonry contractors (§11-36-1). The court ruled that the existence of the enumerated statutory powers had just the opposite effect by precluding the imposition of regulation and licensing on contractors in fields other than those to which cities have expressly been given regulatory power.

If the city has the power by implication to fill the gaps between contractors enumerated by statutes for regulation and all other contractors, there was little purpose in the legislature’s selectivity in choosing certain contractors for regulation. . . . The authorization to regulate certain classes of contractors other than building contractors neither authorizes nor permits licensing of the latter. 198 N.E.2d at 520.
NOTE: Like many of the cases cited in this chapter, this case was decided prior to the enactment of the 1970 Constitution, which granted home rule authority. See §§5.21 – 5.25 below for a discussion of home rule licensing powers. The authors further note that despite the court’s holding in Ives a number of non-home rule municipalities have adopted or are considering the adoption of ordinances licensing and regulating general contractors. While passage of such an ordinance is without lawful authority, there seems to be little objection in the construction industry to date. The careful practitioner should, however, advise any municipal client of the risks involved with such action.

The grant that “[t]he corporate authorities of each municipality may pass and enforce all necessary police ordinances” (65 ILCS 5/11-1-1) may be used to effect other statutory provisions granting the power to license, but it cannot stand alone as authority for a licensing ordinance. The court has held in City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N.E. 753 (1910), that Illinois Municipal Code §11-1-1 is intended to give cities and villages the power to pass and enforce all necessary police ordinances with respect to those subjects and occupations the regulation and control of which are expressly delegated to such municipalities by other specific clauses. Code §11-1-1 is not a general delegation of all police power of the state, which if given to them, would authorize cities and villages to pass and enforce all police ordinances on any and all subjects without regard to any other specific delegation of power.

Similarly, in Lowenthal v. City of Chicago, 313 Ill. 190, 144 N.E. 829 (1924), the city argued that its police powers authorized an ordinance licensing and regulating the sale of drugs and such articles as are commonly sold in drug stores. The court stated that “[i]f the business sought to be regulated has no tendency to injure the public health or public morals or interfere with the general welfare it is not a subject for the exercise of the police power.” 144 N.E. at 831. The court struck down the ordinance, noting that there was no statutory authority granting the city the right to regulate or license drug stores and that drugs and medicine were already subject to direct state regulation. The other aspects of operating a drug store were no different from other retail stores, which presented no public health hazards; therefore, the licensing ordinance could not be imposed on the plaintiff. As discussed in §5.9 below, the power to regulate also means the power to license. Conversely, the courts have held that the power to license not only implies the power to regulate,
but mandates it. In R. & X. Restaurant, supra, 15 N.E.2d at 727, the court stated: “An ordinance providing for a license, without regulatory provisions of any kind, is solely a revenue measure and not within the police power.” See also City of Chicago Heights v. Western Union Telegraph Co., 406 Ill. 428, 94 N.E.2d 306, 310 (1950) (“A licensing ordinance which does not regulate in any degree must be considered to be a revenue measure, and, unless the power to tax has been expressly conferred by the legislature, the ordinance is void.”); Lamere v. City of Chicago, 391 Ill. 552, 63 N.E.2d 863 (1945); Ward Baking Co. v. City of Chicago, 340 Ill. 212, 172 N.E. 171 (1930).

Since licensing for revenue only is not permitted, municipalities do not have unfettered discretion in fixing the amount of license fees. City of Bloomington v. Ramey, 393 Ill. 467, 66 N.E.2d 385 (1946); Ward Baking, supra. However, a license fee for regulatory purposes will be sustained as long as the license fee bears some reasonable relation to the cost of regulation. In R. & X. Restaurant, supra, the court upheld a licensing ordinance that based the annual license fees for food-dispensing establishments on seating capacity. In response to the defendant’s contention that the license fee did not bear a reasonable relation to the burdens placed on the city because of the regulatory provisions, the court stated:

When the legislative department of a city has exercised its power of regulation upon a subject within the police power, unless there is a palpably arbitrary exercise of
such power, the courts will not declare the regulatory provisions void. . . . [A] license fee which will legitimately assist in the regulation of the business may be exacted, and it is not essential that it be confined to the exact expense of issuing a license and regulating and inspecting the business. 15 N.E.2d at 728. In A & H Vending Service, Inc. v. Village of Schaumburg, 168 Ill.App.3d 61, 522 N.E.2d 188, 118 Ill.Dec. 733 (1st Dist. 1988), the court upheld a regulatory ordinance resulting in a five-to one ratio of revenue to cost of enforcement; the enforcement scheme involved administration of records and physical inspection of vending machines by licensing and health inspectors. In reaching its decision, the court stated: [I]t is clear that a license fee for regulatory purposes can be sustained as long as the license fee bears some reasonable relation to the cost of regulation. (Arends v. Police Pension Fund (1955), 7 Ill.2d 250, 253, 130 N.E.2d 517, 519.)

The burden of proof is upon those seeking to invalidate the fees to show the lack of any reasonable relation between the fee and the cost of enforcement. (Village of Roxana v. Costanzo (1968), 41 Ill.2d 423, 425, 243 N.E.2d 242, 243.) Unless that fee is arbitrary or in great excess of the cost of enforcement and as long as the ordinances contain genuine regulatory provisions, the courts have been generous in sustaining a licensing fee for regulatory purposes. See Larson v. City of Rockford (1939), 371 Ill. 441, 444, 21 N.E.2d 396. See also Village of Roxana v. Costanzo (1968), 41 Ill.2d 423, 243 N.E.2d 242; City of Chicago v. Schall (1954), 2 Ill.2d 90, 116 N.E.2d 872. 522 N.E.2d at 190. See also Oak Park Trust & Savings Bank v. Village of Mount Prospect, 181 Ill.App.3d 10, 536 N.E.2d 763, 129 Ill.Dec. 713 (1st Dist. 1989). For a case that found no reasonable relation between the fee and the cost of regulation, see Quad Canteen Service Corp. v. Ruzak, 85 Ill.App.3d 256, 406 N.E.2d 616, 40 Ill.Dec. 610 (2d Dist. 1980), in which the court found a revenue versus cost ratio of ten to one unconstitutional when no inspections were done until after the lawsuit was filed and the inspections were minimal.

Thus, although many municipalities have a licensing ordinance that merely lists business categories and respective fees, the legally proper ordinance should contain some regulatory provisions regarding health, safety, or registration for each business that the municipality desires to license. However, it is not a valid attack on such an ordinance that the actual personnel available may not be able to carry out the full regulatory scheme contained in the ordinance. In American Banking Co. v. City of Wilmington, 370 Ill. 400, 19 N.E.2d 172 (1938), the court upheld an ordinance licensing vehicles used for the storage or delivering of food. The ordinance provided for inspections to determine compliance with its provision, but the plaintiffs argued that there was only one police officer to make such inspections and that the provisions for inspection were not being enforced. The court rejected this argument and stated: “This is wholly irrelevant as to the validity of the ordinance. It relates only to its enforcement. An ordinance is not rendered void by failure of the city to enforce it.” 19 N.E.2d at 174. See §5.11 below for a discussion of how the power to tax affects the validity of the amount of license fees.

As with the power to license, the power to regulate can be implied from various sources. Father Basil’s Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805 (1946). See also Alarm Detection Systems, Inc. v. Village of Hinsdale, 326 Ill.App.3d 372, 761 N.E.2d 782, 788, 260 Ill.Dec. 599 (2d Dist. 2001). In addition, the power to regulate includes the power to license. Therefore, a licensing ordinance can be authorized by either the implied or express authority to regulate. Some examples of cases applying this rule include the following: The power to regulate the storage of flammable liquids was held to authorize the licensing of dry cleaners in Klever Shampay Karpet Kleaners v. City of Chicago, 323 Ill. 368, 154 N.E. 131 (1926). The power to prevent fire hazards and to protect the public health was construed to permit the licensing of cosmetic manufacturers using alcohol and toxic materials in Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N.E.2d 495 (1940).

The power to regulate the storage of lumber justified an ordinance licensing furniture manufacturers who maintain over 5,000 board feet of lumber in connection with their business in City of Chicago v. Churchill Cabinet Co., 379 Ill. 351, 40 N.E.2d 518 (1942). The power to establish and improve streets and sidewalks, to regulate the use of streets, and to prescribe the strength and manner of constructing all buildings allowed building contractors and those engaged in laying streets and sidewalks to be licensed in Concrete Contractors’ Association of Greater Chicago v. Village of La Grange Park, 14 Ill.2d 65, 150 N.E.2d 783 (1958). The power to prescribe the strength and manner of constructing buildings and to prevent fire hazards, among other powers, authorized a licensing ordinance regarding carpenter contractors in Village of Maywood v. Weglarz, 24 Ill.App.2d 495, 165 N.E.2d 362 (1st Dist. 1960). However, in Chicago Coin Meter Co. v. City of Rolling Meadows, 6 Ill.App.3d 418, 286 N.E.2d 22 (1st Dist. 1972), the court held that the statutory power to locate and regulate the use and construction of laundries was insufficient to authorize a license requirement for companies that leased coin-operated washing machines and dryers to owners of apartment complexes. See §5.8 above for a discussion of other cases in which various grants of statutory authority were held insufficient to authorize licensing. As with licensing ordinances authorized by the express or implied power to license, licensing ordinances authorized by the express or implied power  to regulate must actually contain regulatory provisions. In Aberdeen-Franklin Coal Co. v. City of Chicago, 315 Ill. 99, 145 N.E.  613 (1924), the court struck down an ordinance requiring coal dealers to be licensed, noting that the ordinance contained no regulatory provisions. In doing so, the court stated: “While the power to license is an incident of the power to regulate, and a regulatory ordinance may require a license and the payment of a license fee as an incident to regulation, to sustain the power to license as an incident to regulation the ordinance must be a regulatory ordinance.” 145 N.E. at 615. Again, however, the fact that the regulatory provisions are not actually enforced will not necessarily invalidate the ordinance. See discussion in §5.8 above.