Red Book Second Edition January

WINNING WAYS TO FIGHT TRAFFIC TICKETS

ALL MATTERS OF VEHICLE CODE ARE ADMINISTRATIVE PROCEEDINGS

TRAFFIC TICKETS ARE VIOLATIONS OF CIVIL RIGHTSTRAFFIC TICKETS ARE VIOLATIONS OF BILL OF RIGHTSTRAFFIC TICKETS ARE FALSE ARRESTTRAFFIC TICKETS ARE FALSE IMPRISONMENTTRAFFIC TICKETS ARE UNLAWFUL TAKING OF MONEY

ARRESTS FOR D.U.I ARE ADMINISTRATIVE SCHEMES UNCONSTITUTIONAL UNDERBILL OF RIGHTS AND USC ARTICLE ONE, SECTION EIGHT - THREE, 14THAMENDMENT, CALIFORNIA CONSTITUTION ARTICLE ONE

MAILING OF BENCH WARRANTS FOR FAILURE TO APPEAR ARE FRAUDULENT USEOF MAIL TO EXTORT MONEY

TWENTY EIGHT CHAPTERS OF KNOWLEDGE AND HOW TO USE ITEIGHT YEARS OF COURT ROOM EXPERIENCE AND THE GROUNDS FOR A CIVILRIGHTS ACTION WHEN APPLIED TO THE MOTORISTS, TRAVELERS AND DRIVERSON THE PUBLIC'S COMMON HIGHWAYS

The Public Interest School of Law exists as one of the rightsretained by the people under the Ninth Amendment of the UnitedStates Constitution and recognized in the UNIVERSAL DECLARATION OFHUMAN RIGHTS. Resolution, United Nations General Assembly 217 A(III) OF 10/12/48

Article 13.1, Everyone has the right to freedom of movement....INTERNATIONAL COVENANT OF ECONOMIC, SOCIAL AND CULTURAL RIGHTSUNGA Resolution 2200A (XXI) of 16/12/66, EIF 3/1/76

Article 13.4, No part of this article shall be construed so as tointerfere with liberty of individuals or bodies to establish anddirect education institutions. "A state legislature cannot deprivea person of the inherent constitutional rights to conduct a schooland to teach for compensation any system of learning not inherentlyinjurious, or harmful to the public health, welfare, or morals, andto do all things necessary or expedient for the explanation,

demonstration, or application of the principles and processesinvolvement-" Colorado - Hurley vs People, 63 P2d 1227; 99 Colo 510

This School is not an instrument of the Corporate State ofCalifornia; it is not established- as a public service agency; itis not a corporation created and approved by the Corporate State ofCalifornia; it takes no benefit from the state and so no liabilityattaches to it for it has no legal obligations due the State thusthe State may not impose liabilities upon the School.

PREFACE

The author became enmeshed with the Corporate State's Vehicle Codewhen he moved to California on November of 1954. From that dateuntil 1984, he was as gullible and naive as are the majority of thenow readers of this study and the research results publishedherein. He believed that dignity and honor was the foundation ofthis Country which set it aside as a special unique form ofgovernment, previously unknown in the annals of man's history; asa society functioning under a set of laws by which the Peoplewere the creators for the People, not for the People. Better thatten guilty men go free, unpunished, than that one innocent man beunjustly punished by a tyrannical government. That the power andmight of the chosen government not be abused by amoral men, instations of power, by the weight of the sword and thundering gun-powder but, that the government of the Nation/States be by Bills ofLaw, not amoral men serving their own selfish purposes and those oftheir ilk striving only for power. The author became involved inthe abuse of Vehicle Code, a private business code, and of itsmisuse, misrepresentation and application to a class of individualsnot encompassed by the intent of private statutes; it is used as ameans of control of the individual, the unlawful taking ofproperty, money, liberty and rights, privileges and immunities byregimentation. By false use of licensing laws/permits it haspermeated and crumbled the very foundation of our rights bycolorable law corporate statutes under color of robes / office /uniforms.

Our right to be let alone, when we do no harm to our fellow man,has disappeared by deceitful imposition of contractualrelationships with the Corporate State of California. By ourignorance of the nature of the statutes, unwillingness to challengefigures of authority, because we are "sheep-le" happily followingthe black sheep [think judicial robes, uniforms of a police

officer], believing all is well, after all, look about you and seeyour fellow happy sheep in the flock. All unaware that we are beingled to fleecing pens, [tribunal courts] where in we are fleeced andnever know that we have been fleeced, subjected to an unnaturalfleecing by men functioning outside the scope of their duty aspublic officials. That the taking of our natural coat ofprotection, Our Laws, under guise of Corporate Administrative Lawwhich excludes us from their juris-diction, and is not to be takenby onerous deceit, without our voluntary, knowing surrender of aright for a special privilege for which we have no need, will notenjoy, nor participate, nor any benefit gained in the future by ourignorant compliance. Others, as myself, who have raised their headsabove the flock, to learn what is happening to the flock, havediscovered themselves to be in the position of the turkey who does,so someone is going to take a shot at it because it disrupts theserenity of those who do not know they are going to be plucked.Fortunately, those who have learned of our status/power, have thelarge gonads, will take a stand to fight the deceitful applicationof compelled nexus.

That knowledge is available; it enables that type of individual touse the knowledge herein to strike back, fight CorporateAdministrative Agencies, Article I Tribunals, use Article IIICourts for damages for deprival of immunity from CorporateAdministrative Law which harms us. To the fighter goes the spoils.Wars are not by a single battle won, nor by a single defeat.Battles are learning experiences. Defeats are teachingexperiences., Survive enough battles/defeats and you have gainedthe knowledge and experience of how a war is fought and won. It isthe belief of this author that the courts, agencies people'sprosecutors, review courts have directly and indirectly taughthim a significant number of battle plans and tactics which he wouldotherwise never have become aware by research and study on his ownsolitary time in the law library.

Understand the massed are never going to rally round your flag. Themasses are followers. They do as they are told to do and believewhat they are told to believe. Theirs is not to question why,theirs is but to comply, comply to the lie, suffer the knifeplunged into their backs while being assured that all is right, andfor the common goodwill, safety and security of the People, or isit the People? Read, read, read some more. Study and learn foryourself for whom the bell tolls. the bell tolls for the reader.It will be you for whom the bell dolefully tolls by yournon-combativeness, or it can be a government which takes from you

all that was fought for by those slaughtered / maimed in theirRebel's War in the name of freedom and rights from tyranny.

The Rodney King episode is a classic example of how the VehicleCode is used by the police/peace officers of local municipalities,county municipalities, and the California Highway Patrol TrafficOfficers, [CHiP traffic officers are not first peace/policeofficers but, traffic officers with alternative peace officerpowers as employees of an administrative agency, within theBusiness, Transportation and Housing Agency] who by abuse ofprocess and color of uniform deceitfully write civil notices namingindividuals using the common highways, citing sections of VehicleCode when the individual noticed is not within the jurisdiction oflocal municipalities police power [local police powers of countiesand cities does not extend to enforcing state statutes] Departmentof Motor Vehicles itself has not police power as a Public ServiceAgency, which is composed of private individuals functioning asCorporate Agencies for the Corporate State, thus cannot delegatepolice power to arrest for civil actions, special in nature undercode enforcement, which is maritime summary procedure, not criminalprosecution.

RODNEY KING, now world known as a victim of aggravated assault andhis near death; while traveling upon an inter-state federalhighway, outside the jurisdiction of Department of CaliforniaHighway Patrol, Department of Motor Vehicles, local police, may notbe heard in County municipal courts under Vehicle Code. A CHiPTraffic Officer took off in pursuit of Mr. King because it was hisbelief that King was traveling at an unlawful rate of speed on acommon highway but he as State Traffic Officer had no jurisdiction,nor the State by its Vehicle Code, nor the Department ofMotor Vehicles hearing by magistrates in municipal tribunals foradministrative agencies.

MR. KING at some off-ramp exited the Inter-state and continued onthe city streets. Because he refused to pull over and stop on theside of the street, the CHiP radioed that they were in hot pursuitof a speeding automobile. The Los Angeles Police Departmentresponded to the message and joined the pursuit of Mr. King. Atsome location King was stopped. Assuming CHiPs had jurisdiction andwere in legitimate "hot pursuit", Mr. King was theirs. But, thealleged unlawful speed was not committed within the geographicaljurisdiction of the LAPD, they were intruders when they told theCHiPs they would take over and then brutalized him with clubs,kicks, tasers, to a critical need for hospital-ization, treatment

of broken bones, fractures and contusions. LAPD had no jurisdictionto arrest Mr. King under color of State Vehicle Code for StateDepartment of Motor Vehicles. As an alleged speeding violation isnot a arrestable offense, being an infraction of the Vehicle Code,not a substantive crime, and no penal code misdemeanor had beencommitted in the knowing presence of the LAPD, the LAPD wasperforming a false arrest and false imprisonment. Such an arrestwithout the force of law is an act of kidnapping (Pen C S207 (a)Every person who forcibly ..... arrests any person in this state,and carries the person into another country, state, or county, orinto another part of the same county, is guilty of kidnapping.)

The Department of Motor Vehicles and magistrates sitting to hearand set an adminis-trative record for possible review for DMV haveblind eyes when they permit/condone abuse of process ofadministrative law procedure by state/local agencies. But, suchis the method of procedure which unconstitutionally sweeps into agiant net all individuals merely because they are using a wheeledconveyance/automobile/truck upon the common highways/streets, notof a class supervised by the DMV, or subject to the jurisdiction ofthe Statutes 1959, Vehicle Code are falsely arrested, falselyimprisoned and fined and suffer fines and assessments where nostate money of account exists.

It is the author's opinion that the cop on the street in his blackand white actually believes that he is functioning as a peaceofficer when he writes civil notices and that all individuals usingstreets and common highways are subject to his jurisdiction andVehicle Code and Department of Motor Vehicles. As the "cop" is noteducated to know the truth, he is being used by the DMV and themagistrates in municipal tribunals to violate the rights of themotorist using the common highways for personal or businessuse, who cannot be compelled to be licensed and pay "use taxes"when the conveyance is not dedicated to the use by the generalpublic for its benefit.WITHOUT THE DUMB COP THE DMV WOULD BE LIMITED BY THE NATURE OFSPECIAL PROCEEDING REQUIREMENT UNDER ADMINISTRATIVE LAW AND THETRUTH WOULD BE KNOWN TO ALL MOTORISTS THAT THE COP IS NOTFUNCTION-ING AS A PEACE OFFICER BUT AN INFORMER FOR THE DEPARTMENTOF MOTOR VEHICLES AS NO POLICE POWER CAN BE ATTACHED BY THE LEGIS-LATURE TO ANY RESOLUTION FOR ENACTMENT OF A PRIVATE STATUTEAS TO A CLASS OF PEOPLE.

CALIFORNIA IS A REPUBLIC. THE FLAG OF CALIFORNIA BEARS ONLY THEWORDS "CALIFORNIA REPUBLIC ". THERE IS NO FLAG FOR THE STATE OF

CALIFORNIA ONLY A CORPORATE SEAL OF THE STATE OF CALIFORNIA. [TheRepublic was created by the representatives of the People to do forthe People that which they could not do themselves. Run thebusiness of government; Article I Legislative Department "Alllegislative powers herein granted .... Sec 7 Mode of passing laws"Every bill .. before it becomes a law [No law shall be passedexcept by bill]. Article II Executive Department .... Executivepower shall be vested in... Article III Judicial Department - Thejudicial power shall be vested... [When California applied forStatehood in 1850 it agreed that it would write a Constitution forCalifornia which would be in complete compliance with theNational Constitution and would guarantee a Republic form ofgovernment for the people of California and that the NationalConstitution was the Supreme Law of the Land, that all laws enactedby the Legislature would be in accord with the NationalConstitution]

STATE OF CALIFORNIA IS A BUSINESS CORPORATION [Because the NationalConstitution prohibits the Republic from engaging in privatebusiness with the People, and from passing any "Law impairing theObligations of Contracts" see Article I S10, paragraph 1, U.S.C.an interesting paradox now exists in the relationship of the Peopleof the Republic and the People of the State of California]

OF: A term denoting that from which anything proceeds; indicatingorigin, source, descent, as "he is of a race of kings". The wordhas been held equivalent to at, or belonging to; Davis vs State 38Ohio st 506; Associated with or connected with, usually in somecasual relation, formal or final. Black's 4th p1232. A "State" asin State of California is a "corporate fiction" existing only inthought, created and sustained only and purely in the minds of men.A freewill body politic. [This is because the Constitution does notempower any state legislature to create "corporations byconstitutional powers" but only by consent of parties incorporated][All corporations function by an administrative procedure andare without police power when they perform as business agencies.Administrative agencies are so prolific and reach into so manyaspects of the citizens lives that they are now considered to bethe Fourth Branch of Government] [As agencies without theauthority to exist, they are legal fictions, organizations used todo and perform functions/roles/purposes which a Republic Governmentcannot do under constitutional authority. Do engage in privatebusiness activities and thereby regulate business activities andregulate/control individuals by licensing law, enjoying the rightto earn a livelihood, or deceive individuals to ask to be

incorporated/licensed/organized as part of a Corporate Statebecause they believe they have a need for special privileges but,the constitutional right/privilege exists without the"make-believe" entity which has no constitutional power to grant aconditioned right/privilege when the right and privilege isrecognized antecedent to the constitution.

BOTTOM LINE QUESTION. When and how did the People in theirsovereign capacity, in the Constitution [a contract withlimitations clearly defined within the Articles and Bill of Rights]grant the power for the Republic Government to create CorporateEntity Federal Government and those Corporate State Entities whichcreate other private corporations and grant members privileges notconstitutional? [If the author is in some way mistaken in theabove, absent the voluntariness of the individual, how can anyindividual be compelled to ask for "privileges" when he has the"right" under the Constitution?]

MINI - BIO OF THE AUTHOR/PUBLISHER

The author is a natural born rebel of the mature age of 70. Hisyears of experience in society, in the job market, in marriages,etc. have given him an insight not available to the individualinexperienced, whose knowledge may be acquired by reading, etc.,but until it has been experienced and emotionally impactedpersonally, it is merely book lore. His attitudes and beliefs wereingrained at birth by New England traditions and parentageand a school system far more demanding of the student, than today'ssystem. More was expected of the individual scholastically, dresscode of personal pride, image of self. We were conditioned by theneed to perform to a standard which had to be attained by effort,taught that the mind must be probing, questioning, asking why. Theauthor, Arthur Frank Sanford, is not a text book teacher. What hehas learned from the text books have been taken into the courts andtribunals of this state since 1984, in the Superior Courts andReview Courts as well as numerous municipal courts/tribunals.

Issues run the gamut from "traffic" Civil Notices in municipaltribunals sitting as magistrates for the Department of MotorVehicles, to Superior Court actions for false arrest/impris-onment by defendants as Judges/magistrates, Deputy Sheriffs and theSheriff and District Attorney of San Bernadino County and theirspouses.

Author currently has an action for false arrest/imprisonment naming

Ira Reiner, District Attorney of Los Angeles County and a DeputyDistrict Attorney of that county as defendants remanded back toFederal District Court by the Federal District Court of Appeal fora cause of action showing by author. That was a case wherein I wasalleged to be an evil person practicing barratry because I hadfiled 11 actions suing public officials for false arrest/imprisonment and 3 of the suits named Mr. Reiner as defendantacting under color of law and misuse and malicious abuse of hisoffice. Needlessly to say, it has been a long, tough experiencetrying to get an elected public officer to stand in a court underoath to account for his malicious prosecution of my right to"petition the Government for redress of grievances" when he is adefendant.

Pro per and pro se litigants are led down a rocky road to deterthem from reaching the goal at the end of the road. The victoryis always sweeter when won the hard way. Trite but true, "when thegoing gets tough the tough get going."

TABLE OF CONTENTS

Chapter 1 PEACE OFFICER DEFINED

Chapter 2 PEACE OFFICER TRAFFIC ENFORCEMENT UNCONSTITUTIONAL

Chapter 3 LEGISLATIVE POWER LIMITATIONS

Chapter 4 VEHICLE CODE UNCONSTITUTIONALLY PROMULGATED

Chapter 5 JURISDICTION CHALLENGE TO COURT/TRIBUNAL MAGISTRATE

Chapter 6 ASSEVERATION; AFFIDAVIT; DECLARATION

Chapter 7 NOTICE TO APPEAR IS EXTRA-JUDICIAL CIVIL PROCEDURE

Chapter 8 DEPARTMENT OF MOTOR VEHICLES PART OF ADMINISTRATIVE AGENCY

Chapter 9 COMMERCE IS CONSTITUTIONAL RIGHT TO EARN A LIVELIHOOD

Chapter 10 VEHICLE CODE IS CONSTITUTIONALLY AMBIGUOUS

Chapter 11 DRIVER'S LICENSE UNNECESSARY

Chapter 12 VEHICLE CODE IS UNCONSTITUTIONALLY APPLIED IN PARTS

Chapter 13 VEHICLE CODE IS BILL OF ATTAINDER/BILL OF PAIN & PENALTIES

Chapter 14 ADMINISTRATIVE ESTOPPEL PROCEDURE

Chapter 15 DRIVING UNDER INFLUENCE; IMPLIED CONSENT BY DECEIT VOID

Chapter 16 NO PROSECUTION LACHES APPLIES

Chapter 17 INABILITY TO PAY FINE; STATE WITHOUT MONEY OF ACCOUNT

Chapter 18 PROSECUTOR MUST IDENTIFY ACCUSED BY EYEBALL WITNESS

Chapter 19 MOTION TO QUASH FOR WANT OF SUBJECT MATTER JURISDICTION

Chapter 20 MUST DENY ACCUSATION BY OFFICER'S NOTICE TO APPEAR

Chapter 21 HOW TO BAR COURT/TRAFFIC COMMISSIONER

Chapter 22 CALIFORNIA ATTORNEYS ARE DE FACTO ATTORNEYS

Chapter 23 BENCH WARRANTS BY MAIL ARE FRAUD/EXTORTION BY MAIL

Chapter 24 NATURAL PERSON? SUBJECT? REPUBLIC? SOVEREIGN STATE?

Chapter 25 BAIL FOR RELEASE ON TRAFFIC TICKETS ARE RANSOM

Chapter 26 DMV ENFORCEMENT SCHEME IS ABUSE OF VEHICLE CODE PROCESS GROUND FOR US 42 S1983 CIVIL ACTION

Chapter 27 LICENSE AND LICENSE FEES ARE BUSINESS TAXES

PEACE OFFICERS JURISDICTION DEFINED DOES NOT EXIST WITHIN VEHICLECODE

PEACE OFFICER. This term is variously defined by statute in thedifferent states; but generally it includes sheriffs, and theirdeputies, constables, marshals, members of the police force ofcities, and other officers whose duty is to enforce and preservethe public peace. Black's 4th p 1287

s830.2 Members of highway patrol

(a) Any member of the California Highway Patrol, provided that theprimary duty of the peace officer shall be the enforcement of theprovisions of the Vehicle Code or any other law relating to the useof vehicles upon the highways, so as that duty is set forth in theVehicle Code.

Penal Code. s830.3 Particular officers

The following persons are peace officers whose authority extends toany place in the state for the purpose of performing their primaryduty or when making an arrest pursuant to s836 of the Penal Code asto any public offense, with respect to which there is an immediatedanger to person or property, or of the escape of the perpetratorof such offense, or pursuant to ss859.7, 859.8.....of GovernmentCode

s830.3 (d)

Department of Motor Vehicles; employees.Employees of the DMV designated in s1655 of the Vehicle Code,provided primary duty of such peace officer shall be theenforcement of the law as that duty is set forth in s1655 of suchcode.

s1655 VC Peace Officer Powers.

(a) The director, a deputy director, the chief and assistant chiefof the Division of Compliance of the Department and investigatorsof the department shall have the powers of peace officer for thepurpose of enforcing provisions of law now or hereafter committedto the administration of the department.

(b) Any person designated in subd. (a) may inspect any vehicle ofa type required to be registered under this code, or any componentpart thereof, in any garage, repair shop, parking lot, used carlot.......... or any other establishment engaged in the business ofselling, repairing ........ for the purpose of investigating thetitle and registration of the vehicles.....[So, it is obvious that the peace powers of the DMV is limited tonon-criminal activities]

POLICE OFFICER. One of the staff of men employed in cities andtowns to enforce the municipal police, i.e., the laws and goodorder of he community. Otherwise called "police man" Black's p 1317

DEPARTMENT OF THE CALIFORNIA HIGHWAY PATROL

Administration

2100. There is in the Business, Transportation and Housing Agencythe Department of California Highway Patrol

2103. The department is the successor to and is vested with theduties, powers, purposes, responsibilities, and the jurisdiction ofthe former Division of Enforcement of the Department of MotorVehicles, known as the California Highway Patrol.

Article 3. Powers and DutiesLaw Enforcement

s2400 VC. Commissioner shall administer [then follows all thevarious duties, none of which include private persons traveling,driving, transporting for self or other private parties]

s2401.1 VC. The commissioner shall enforce all laws regulating theoperation of vehicles and the use of the highways, [this sectionthen proceeds to define the limitations of the commissioner][The pertinent paragraph herein is " ... city police officers whileengaged primarily in general law enforcement duties mayincidentally enforce state and local traffic laws and ordinances onstate freeways within incorporated areas of the state" [No mentionis made that those powers extend to private persons who travel,drive or transport for personal reasons or for such person whotransports for another private person]

DEPARTMENT. Generally, a branch or division of governmentaladministration. Black's Revised 4th Ed p524

With reference to state or municipal administration, a "bureau" ismerely a division of a department. supra2256. State Traffic Officer of the California Highway Patrol.

[So, a highway patrol officer is a "traffic officer" whoseauthority is the enforcement of traffic rules and regulations asdelineated clearly in Vehicle Code, a private civil code(legislative private statute limited to "traffic" conducted by theuse/operation/driving of commercial motor vehicles on the statehighways. His peace officer power is limited to the enforcement ofcrime, does not reach private travelers and motorists]

TRAFFIC. Commerce, the subjects of transportation, on a route, aspersons or goods; the passing to and fro of persons, animals,vehicles along a route of transportation, as along a street.Black's p 1667The peace officer's power is limited to the enforcement of crime,to wit: s830.1 Sheriffs, police, marshals, constables, inspectorsand investigators of district attorneys and designated departmentof justice personnel.[Such peace officers, supra, have no power to enforce Vehicle Code]

s830.2(a) Any member of the California Highway Patrol, provided that theprimary duty of the peace officer shall be the enforcement of theprovisions of the Vehicle Code or of any other law relating to theuse or operation of vehicles upon the highways, as that duty is setforth in Vehicle Code.

[Such members have no authority to enforce the vehicle code, as topersons who are not using or operating vehicles under theprovisions of the Code as they are "motorists"]

MOTORIST. A person who drives an automobile or travels byautomobile; especially one who does so frequently but, not as anoccupation. Webster's Dict, Unabridged 2nd Ed.

OPERATOR. To "operate" any motor vehicle proscribes [forbids]illegal operation of "transportation business" rather than physicaloperation of the vehicle itself. Statute imposing penalty foroperation of motor vehicle without first obtaining a license shouldbe strictly construed "in favor" of one against whom imposition ofa penalty is sought "Kramer vs Haley", 439 P2d 1968, 573, 574

USE. "Use means, among other things, "to carry out a purpose oraction by means of" to "make instrumental to an end of purpose orprocess" and to "apply to an advantage" People vs Chambers (1972)Cal3d 666,672

[So, if an automobile or truck is not being used as a means ofoperating in the business of trafficking on state or city highwaysthe user of that vehicle is not subject to the authority ofDepartment of Motor Vehicles or any peace officer or "trafficofficer" employee of the California Highway Patrol or municipality][It is implied within civil Vehicle Code, a private businessstatute, by reading the context in its entirety that an individualnot within the jurisdiction of Department of Motor Vehicles or a

Traffic Officer of the California Highway Patrol is "exempt" fromarrests under the code, absent the public offense, by personalprivilege under the constitution, National and State.

[However, such a person if brought into a tribunal before amagistrate, that immunity must be asserted and claimed by a motionto quash, otherwise it is waived]

In Ex Parte Emmett 7 P2d 1096, 120 CalApp 349 the court was rulingon immunity from arrest of public officials when engaged in theirofficial capacity and members of the legislature while legislaturewas in session, such immunity was recognized a common law ofEngland and is observed under the constitution of this country asto the rights, privileges of the Individual and by the civil codesof the state when an individual is not engaged in regulatedbusiness activity of particular code.

WHEN POLICE OFFICERS ABUSE THEIR OFFICES, "ACTIONS FOR DAMAGES MAYOFFER ONLY REALISTIC AVENUE FOR VINDICATION OF CONSTITUTIONALGUARANTEES"

Harlow vs Fitzgerald (1982) 457 US at 814[Police officers stopping a vehicle under guise of alleged VehicleCode violations and color of uniform are acting outside the scopeand duty as police officers and violate the Fourth Amendmentrestraints imposed on the States by the Fourteenth amendment of theFederal Constitution, to the harm of the people stopped] "TheFourth Amendment forbids stopping a vehicle even for the limitedpurpose of questioning its occupants unless the police officer hasa founded suspicion of criminal conduct"

United States vs Ramirez-Sandoval, 872 F2d 1392"Founded suspicion must exist at the time the officer initiates thestop"

United States vs Thomas 863 F2d 622, 625"In evaluating whether founded suspicion exists, the totality ofthe circumstances should be considered"

United States vs Sokolow, 490 US 1, 8United States vs Hernandez-Alvarado, 891 F2d 1414"founded suspicion exists when the officer is aware of specificarticulable facts, that, together with rational inferences drawsfrom them, reasonably warrant a suspicion that the person to bedetained has committed or is about to commit a crime"

United States vs Cortez, 449 US 411, 416United States vs Robert L., 874 F2d 701, 703"The Unites States Supreme Court has defined and limitedinvestigative detentions. Any restraint of a person for thepurposes of checking identification and asking questions ordetaining him or her briefly while obtaining is such a detention;it comports with the Fourth Amendment only when based onarticulable facts supporting a reasonable suspicion that the personhas committed a criminal offense. The mere presence with someonewho has outstanding arrest warrant is not sufficient"

United States vs Hensley, 469 US 221, 83 L Ed2d 604"In a unanimous decision the United States Supreme Court held, "Ademand for identification is an intrusion on the interestsprohibited by the Fourth Amendment and requires a reasonablesuspicion based on articulable facts relating to the person or hisor her conduct, in order to be lawful"(3) When police officers, with or without arresting an individual,detain the individual for the purpose of requiring him to identifyhimself, they perform a seizure of person subject to therequirements of the Fourth Amendment........that the defendant's conviction requiring identificationupon a lawful police stop was improper, the police officer'sstopping the defendant's First, Fourth and Fifth Amendments was inviolation of the Fourteenth Amendment of the Unites StatesConstitution when the police officer has no reasonable suspicion tobelieve that the defendant was engaged or had been engaged incriminal conduct"

Brown vs Texas (1979) 443 US 46; 61 L Ed2d 357"A person driving an automobile cannot be stopped to see if he orshe is licensed to drive unless there is reasonable suspicion theperson he engaged in criminal conduct"

Delaware vs Prouse (1979) 440 US 648, 59 L Ed2d 660"The demand to produce a Driver's License to a police officer ispermitted in California when the officer is enforcing provisions ofVehicle Code s12951 (b)"

People vs Hinton-Walton, Cal Ct Appeal, 2nd Appellate Division Six,1991 DJ DAR 1725Possession of Licenses12951 (b) The driver of a motor vehicle shall present his licensefor examination upon demand of a peace officer enforcing theprovisions of this code.

[Understand that the police officer is not acting within his scopeand duty as a police officer, but as an officer acting as aninformant for the Department of Motor Vehicles, a private PublicService Agency, itself without police power, thus the officercannot act as police officer which only has jurisdiction over itslicensees while they are engaged in some activity within the scopeof the DMV's jurisdiction]

"A law enforcement officer who observes a person engaged in anyactivity for which a license is required may demand to see thelicense certificate, with no other "probable cause" than theobservation"

People vs Nun (1968) 264 CalApp2d 919, 922Kennett vs Municipal Court, 290 F. Supp 746, 747[The "law enforcement officer" would be a "traffic officer" asclearly defined in Vehicle Code under California Highway PatrolOfficer. This is patently clear from the limitation in DELAWARE(supra) that there must be a reasonable suspicion of criminalactivity by a police officer. So, if a "law enforcementofficer/traffic officer" has no articulable facts that a person isengaged in any commercial business activity and the person is alicensee of the Department of Motor Vehicles at the time of theobservation, it is outside his power as a "law enforcementofficer/traffic officer"]

Broussard, Justice, United States Supreme Court in ruling againstroving stops cited Almeida-Sanchez vs Unites States (1973) 413 US166, which stated:

"Court rejects the argument that driving is a persuasivelyregulated activity subjecting motorists to roving stops. Courtexplains that a roving stop of a motorist was unreasonable, driverwas not in the same position as the gun manufacturer or liquordistributor who had in effect consented to the inspection byentering a heavily regulated industry"

Common highway."A road to be used by the community at large for any purpose oftransit or traffic"

Ham. NP 239; Railway Co vs State, 23 Fla 546; 3 So 158, 11 Am StRep 395[Thus, the motorist using the "common highways" without thecommission of a crime is not the subject of

investigation/supervision and arrest by "police officer/lawenforcement officer/traffic officer][So, on a traffic stop by a uniformed officer with a badge, gun,club, and mace, because you do not know in which capacity he isstopping you, civil vehicle code enacted as a statute, or peaceofficer with arrest power under Penal C s836 for enforcement ofpublic offenses, misdemeanors & felonies, before you answer anyquestions or produce any licenses, registration certificate, youmust ask him and get an answer;

"is this a "civil arrest" or is

this a "criminal arrest?"

[If he states that he is arresting you asa police officer then Fourth Amendment procedure must be obeyed byhim as he has taken an oath to uphold the Constitution. There andthen inform him that he must read Miranda rights and if there areno witnesses that Miranda has been read there must be asubscription that they have been read and understood. The right toan attorney must be permitted before any further action by thepeace officer] [If he informs you that he is arresting you pursuantto Vehicle Code, then inform him that you are not engaged in anylicensed activity defined within the Vehicle Code and does he haveany evidence that you are so engaged.] [If he writes a Civilextra-judicial notice to appear then under s40300 it constitutes awarrantless arrest]

[As he was not acting in capacity of peace officer then he must beacting as a private citizen] [But, as a private citizen he is stillrestricted to citizen's arrest only where public offense wascommitted in his knowing presence] "Officer outside hisjurisdiction believing probable cause for arrest existed, suchcircumstances was the same as that of private citizen arrest"

People vs Monson (1972) 28 CalApp3d 935People vs Martin (1964) 225 CalApp2d 91People vs Alvarado (1962) 208 CalApp2d 629cert denied 83 s. Ct 1891, 374 US 840, 10 L ed2d 1060"Where peace officer acting as private citizen was authorized toarrest person who committed a public offense in his presence theseizure was legal"

37 CalApp3d 952[Do not overlook 'committed public offense' and understand that

mala prohibitas are not public offenses. Under Vehicle Code, thatperson within jurisdiction of Department of Motor Vehicles hasagreed, unknowingly, that certain violations of code would carrypenal penalties. A citizen's arrest without the commission of apublic offense is a false arrest unless citizen can justify thearrest]

"Defendant makes a prima facie case of unlawful arrest when heestablishes that arrest was made without a warrant, and burdenrests on prosecution to show proper justification"

People vs Holguin (1956) 302 P2d 635, 145 CalApp2d 520PC s 837 Private persons; authority to arrestArrests by private persons. A private person may arrest another:1. For public offense committed or attempted in his presence.

s841. Formalities in making arrest; exceptionsThe person making the arrest must inform the person to be arrestedof the intention to arrest him, of the cause of the arrest, and theauthority to make it, except when the person making the arrest hasreasonable cause to believe that the person to be arrested isactually engaged in the commission or attempt to commit an offense,or the person to be arrested is pursued immediately after itscommission or after an escape. The person making the arrest must,on request of the person he is arresting, inform the latter of theoffense for which he is being arrested. [So, if the peace officeris outside his jurisdiction to arrest, functioning as a privateperson (citizen) and starts to write a Civil Notice ask him "Areyou arresting me and if so for what public offense?"

s847 Arrest by private person; duty to take prisoner beforemagistrate or deliver him to peace officer; liability for falsearrest.

A private person who has arrested another for the commission of apublic offense must, without unnecessary delay, take the personarrested before a magistrate, or deliver him to a peace officer.There shall be no civil liability on the part and no cause ofaction shall arise against peace officer, acting within the scopeof his authority, for false arrest or false imprisonment arisingout of any arrest when,

(a) Such arrest was lawful or when such peace officer, at the timeof such arrest had reasonable cause to believe such arrest was

lawful. [Right to use highways for private business, pleasure,transportation, family use, is outside police power as it is aninterference with fundamental personal liberty] "Personal libertyis a fundamental interest second only to life itself, protected-under both California and United States Constitutions"

Re S (1977) 19 Cal3d 921, 141 Cal Rprt 1286"The term 'liberty' as used in state and federal constitutionsconsist partially of the right to be free from arbitrary restraint;for example, the right of a citizen to drive on public street withfreedom from police interference, unless he is engaged insuspicious conduct associated in some manner with criminality is afundamental constitutional right"

People vs Horton (1971) 14 CalApp3d 930, 92 Cal Rprt 666[Thus, when a peace officer stops a motorist or Driver whilewearing a peace officer's uniform and is acting underquasi-authority of vehicle code, it is his duty to inform that heis acting outside this role/scope/duty of peace officer. Hisfailure to do so constitutes the impersonation of a peaceofficer and is a misdemeanor]

[Author takes the position and argues that where the followingsection of Penal Code states "Any person", then, because the peaceofficer at the time of an unlawful stop, is acting outsidehis role of peace officer, at that time he is that "Any personother than an officer ..." and so because of his failure to inform,allows himself to be believed to be a 'peace officer' byintentional fraudulent misrepresentation]

Penal s 538 e Impersonating an officerAny person, other than an officer... who willfully wears, exhibits,or uses the authorized badge, insignia, emblem, device, label,certificate, card, or writing of an officer, ... of fraudulentlyperson-ating an officer.... with the intent of fraudulentlypersonating an officer... or of fraudulently inducing the beliefthat he is an officer.... is guilty of a misdemeanor... as woulddeceive an ordinary reasonable person into believing that it isauthorized for use as an officer.... is guilty of a misdemeanor.

Amended by Stats 1959 c 431 s 1

ADDENDUM"Thus, first issue to be determined by trial court was whether thepolice officer's initial stop was reasonable with in meaning of

Fourth Amendment, for if not, the Fourth violation might infectany purported consent..."

US vs Mendenhall (1980) 446 US 544, 557, 64 Led2d 497Wong Sun vs US (1963) 371 US 471, 487, 9 Led2d 442

LEGISLATIVE POWERS OF CALIFORNIA REPUBLIC ARE LIMITED BY THENATIONAL AND STATE'S CONSTITUTION

[State governments like National government can claim only treekinds of subjects (citizens)

1. Members or agents of their government

2. Violators of Law

3. Government creations; administrative agencies which are calledFourth Branch of government and are business corporations which ofthat which the Republic cannot, regulate individuals][The part of which we only consider here is the legislature when itsits as an Article I s7 para.3 body. The concern here is thelimited power of enacted 'resolutions', 'joint resolutions' and'simple resolutions']

BILLS OF LAW have the Force of Law on all members of the generalcitizenry and cannot be created by 'resolutions, orders and Vote.[Note that all references herein as to authority are taken fromthe National Constitution as all powers of the States are limitedas those of the National Government] "The power to makeResolutions. Article 1, s7 para 3 the Rules of Limitationsprescribed in the case of a Bill"

Resolution. Black's 3rdJOINT RESOLUTION. A resolution adopted by both houses of congressor a legislature. When such a resolution has been approved by thePresident (Governor) or passed with his approval, it has the effectof law.

6 Opinions Attorney General 680[However, HD 95-259 defines "JOINT" ....... resolutions neither ofwhich arise from any Constitutional- Authority brings up anotherform of legislation not authorized by the Constitution:the STATUTE]

"Joint resolutions may originate either in the house of

Representatives or in the Senate - not, as may be supposed, jointlyin both Houses. There is little practical difference between a Billand a Joint resolution, [if not, why don't they call it a Bill?]and, although the latter are not as numerous as Bills, the twoforms are often used indiscriminately. Statutes that have beeninitiated as Bills have later been amended by Joint Resolution, andvice versa [p7]

[HD 95-259 concludes its definition with what appears to be anunconstitutional statement] "JOINT RESOLUTIONS become law in thesame manner a Bills" [But it is not unconstitutional.Notice who wrote the sentence; Dr. Charles Zinn, author of theHouse Document 95-259 is a licensed agent of the House ofRepresentatives. As a lawyer, he is a licensed also by the SupremeCourt. As an agent of government, he is its subject, bound by itsresolutions. For him, resolutions are Law.Remember, a bill is a petition given by a nobleman [governmentofficial] or his subject to the legislative body to be made into alaw benefiting the petitioner without binding other nobleman. So,look to see if a statute accomplishes the same purpose]

STATUTE: Black's 4th p 1581:An act of the legislature declaring, commanding, or prohibitingsome thing; law enacted and established by the will of thelegislative department of government; the written will of thelegislature, solemnly expressed according to the forms necessary toconstitute it the law of the state.

Statutes are two in nature.

PRIVATE STATUTE: A statute which operates only upon particularpersons, and private concerns 1 Bl. Comm 86 An act which relatesto certain individuals, or to particular classes of men. Statevs Chambers, 93 NC 600

PUBLIC STATUTE: A statute enacting a universal rule which regardsthe whole community, as distinguished from one which concerns onlyparticular individuals and effects only their private rights. CodeCivil Proc, Calk s 1898

STATUTES " at large" Black's 5th:Open to discussion or controversy; not precluded. [So, "Statutes atLarge" are in fact merely exercises of the legislature's will, thesolemn declarations, commands and prohibitions of governmentalsubjects, all of them open to discussion and controversy. they are

merely "the law of the state" or law applicable to members of thestate. (members are "One of the persons, constituting apartnership, association, corporation, guild, etc. In re Sixth WardBuilding and Loan Ass. of Newark, 134 NJ Eq. 98, 34 A2d 292, 294;one of the persons cons-tituting a court, a legislative assembly,etc. In re Heafy, 247 AppDiv 277, 285 NYS 188, 193;Members of Congress (legislature) A member of the senate or houseof representatives of the United States (state legislature)

So, further limitations and restrictions of the state powers as toprivate individuals who have no nexus with the state as 'members','public officials', any branch of the Republic or anyAdministrative Agency do not come within the provisions of the'private statutory law' Vehicle Code absent the knowing, freevoluntary application for such privileges as the individual wishesto enjoy in lieu of rights under the Commerce Clause of theNational Constitution as in the words of HD 95-259 "Statutes arenot law but 'legal' evidence of the laws contained in them and willbe accepted as proof of those laws in any court in the UnitedStates. Evidence is rebuttable. Proof is challengeable. And it isproved in the clear, unambiguous language of the Constitution. thatstatutes and resolutions are not Bills, they are not Laws of theUnited States (California Republic) [When the CaliforniaLegislature enacted Vehicle Code and established Department ofMotor Vehicles, a private department within Business,Transportation, and Housing Agency no police power could attachedby California Plenary Power] "Legislature cannot delegate power todefine crime or impose penalty to administrative- agency"

Ex parte Cox 63 Cal 21; In re Mclain 190 Cal 376, 379[Thus, violations of Vehicle Code are not substantive crimes underPenal Code subject at law to penalty of fines and assessments andincarceration/encagement]

ADDENDUM 1

"The police power-the power to make laws secure the comfort,convenience, peace and health of the community- is an extensiveone, and in its exercise a very wide discretion as to what isneedful or proper for that purpose is necessarily committed to thelegislative body in which the power to make such laws is vested (Exparte Tuttle 91 Cal 589)" "But, it is not true that when this poweris exerted for the purpose of regulating a business or occupation,which in itself is recognized as innocent and useful to thecommunity, the legislature is the exclusive judge as to what is

reasonable and just restraint upon the constitutional right of thecitizen to pursue such business or profession As the right of thecitizen to engage in such a business or follow such a profession isprotected by the constitution, it is always a judicial questionwhether any particular regulation of such right is valid exerciseof legislative power (Tiedman's Limitation of Police Power secs 85,195; State vs New Jersey, 47 NJL 286; Commonwealth vs Robertson 5Cush 438; Austin vs Murray 16 Pick 121) This principle is statedvery forcibly in the case of Mulger vs Kansas 123 US 661, in thefollowing language:

"The courts are not bound by mere forms, nor are they to be misledby mere pretenses. They are at liberty-indeed, are under solemnduty-to look at the substance of things when ever they enter uponthe inquiry whether the legislature has transcended the limits ofits authority. If therefore, a statute purporting to have beenenacted to protect the public health, public morals, or publicsafety, has no real or substantial relationship to those objects,or is palpable invasion of rights secured by fundamental rightssecured by fundamental law, it is this duty of the courts to soadjudge, and thereby give effect to the constitution"

"And so also in the MATTER OF JACOBS 98 NY 108; 50 Am Rep 636,Earl, J., in delivering the opinion of the court in that case, saidin relation to the power of the legislature to make policeregulations: "The limit of the power cannot be accurately defined,and the courts have not been able or willing definitely tocircumscribe it. But the power, however, broad and extensive, isnot above the constitution. When it speaks its voice must beheeded. It furnishes the supreme law and the guide for the conductof legislators, judges and private persons, and so far as itimposes restraints, the police power must be exercised insubordination thereto" And the necessary limitation upon the powerof the legislature to interfere with the fundamental rights of thecitizens in the enactment of police regulations, was recognized bythis court in Ex parte Sing Lee 96 Cal 354, in which case we saidthat the personal liberty of the citizen and his rights of propertycannot by invaded under the disguise of a police regulation.

[Thus, all provisions in Chapter 2 Procedure on Arrests ofCalifornia Vehicle Code are not lawful arrests by a peace officerin this scope and duty as a peace officer as no police powerattaches to any vehicle code or any civil code enacted by alegislature of any state and must be challenged as such SeeChapter 2

Remember, all alleged violations of any code are mala prohibita,not true crimes, mala in se] [Setting aside the settled question ofpolice power, obviously no man/person is the subject of arresteither while engaged in business of trafficking on the publichighway of which that man is a member of the general public inpursuit of happiness for himself and his family by using the rightto earn a livelihood in some commercial activity thereon , absentthe crime mala in se]

STATUTES ARE NOT PRESUMED TO ALTER COMMON LAW AS IN STATUTES 1959,VEHICLE CODE, CHAPTER 3

"Statutes are not presumed to alter common law except to the extentthey expressly so provide" In re: Elizalde, Citing Siminoff vsGoodman, infra "Civil code was not designed to embody thewhole law of private and civil regulations, rights, and duties; itis incomplete and partial; except in those instances where thelanguage clearly, unequivocally discloses the intent to depart fromand later or abrogate the common law rule concerning theparticulate subject matter, a section of code purporting to embodysuch doctrine or rule will be construed in light of common lawdecisions on the same subject:

Siminoff vs Goodman, 18 CalApp 5, 11[Vehicle Code of 1959 is unconstitutional as enacted resolution ofthe legislature of the State of California, thus void in toto.Vehicle Code cannot be applied to any private business traveler/motorist or motorist or motorist acting privately for another onthe 'common highways' or upon the chauffeur/operator of motorvehicles, commercial in nature, engaged in commercialtrafficking as a livelihood] "If an act embraces two or moresubjects, and two or more of the same expressed in the title, thewhole act is void 'in toto'.

Simms vs Sawyer, 101 SE 467"But, if the title to the act actually indicates and the act itselfactually embraces, two distinct objects, when the constitution saysit shall embrace but one, the whole act must be treated as void,from the manifest impossibility in the court choosing between thetwo, and holding the act valid as to one and void as to the other"

Judge James M. Cooley in "Constitutional Limitations" page 278"Formerly, it was held to be discretionary in California but, courtdecisions were apparently so unsatisfactory to the people that theconstitution were at once amended, so by its terms to make

the provision mandatory, since which time the California court haveheld the strict compliance with it is necessary to the validity ofthe act"

Simms, supraCalifornia Constitution, Article 4 s24Acts: Single subject, title; amendmentSec. 24; Every act shall embrace but one subject, which subjectshall be expressed in its title. But if any subject shall beembraced in an act which shall not be expressed in its title suchact shall be void only as to so much thereof shall not be expressedin its title. "The purpose of this section declaring that everyact shall embrace but one subject, expressed in its title, was notto hamper legislation, but to prevent deception"

People ex rel, Chapman vs Sacramento Drain Dict(1909) 155 Cal 373"The object of this section that statute shall embrace but onesubject expressed in its title are to prevent legislativeabuse and passage of acts bearing deceitful and misleading titlesto protect members of Legislature, as well as public, againstfraud"

People vs Superior Court In and For San Bernardino County (1937) 10Cal2d 288

Statutes at Large, 1959, Chapter 3, page 1523Approved by Governor, February 25, 1959Filed with Secretary of State February 25, 1959PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS,An act to repeal and re-enact Vehicle Code of 1959 and to addChapter 6.5 to Title 14, Part 4, Division 3 of Civil Code relatingto vehicles. [Re-enactment 1959 has plurality of subjects and itsreal object is not expressed in its title, the regulation of motorvehicles used as commercial motor vehicles for hire to the publicand thus violates the Constitution of California] [Must becondemned and fall for failing to comply with Constitution ofCalifornia] "A statute or ordinance must be constitutional not onlyin its objectives but also in the means of administration andenforcement provided, which must conform to the limitations imposedby federal national, and state constitutions"

Vissering vs Annuzio, 1 Illinois2d 108Sec 1. The state of California is an inseparable part of the UnitedStates of America, and the United States Constitution is the

Supreme Law of the Land.

1 Am Jur2d s32 ClassificationThe well settled rule that a state may classify persons and objectsfor purpose of legislation and pass laws applicable only to thosepersons or objects within a designated class, provided theclassification is not arbitrary or capricious, but reasonable, hasbeen applied to statutes creating administrative agencies.

[Department of Motor Vehicles is a department within Business,Transportation and Housing Agency created by California Legislatureto regulate those businesses which are licensees of the departmentand thus subjects pursuant to the Vehicle Code and subject to therules and limitations of the code and subject to enforcementpenalties while so engaged for mala prohibita violations butStatute as passed fails to comply with the one subject in itstitle]

TO COURT/TRIBUNAL/ADMINISTRATIVE AGENCY AND TO ANY PERSONS SITTINGTHEREIN,

IF NO VERIFIED CRIMINAL COMPLAINT WITH WARRANT OR ARRESTIS PART OF THE RECORD,

OR VERIFIED CIVIL ACTION FOR DAMAGES OR INFORMATION OR COMPLAINTOTHERTHAN CIVIL EXTRA JUDICIAL NOTICE TO APPEARADDRESSED TO A DEPARTMENT OF MOTOR VEHICLES

LICENSEE DOES NOT EXIST

COURT IS WITHOUT SUBJECT MATTER JURISDICTION

[Jurisdiction of tribunals means no more than the power to hear thematter presented to the tribunal and to make a determination of theissues before it. It is the power lawfully conferred todeal with the subject matter brought before it and does not dependupon the existence of a good cause of action worthy of a judgmentnor of the right of the parties to avail themselves of thejurisdiction of the particular court hearing] "Where a statuterequires a court/tribunal to exercise its jurisdiction in aparticular manner, or subject to certain limitations, and to followcertain procedure, any act beyond those limitations is in excess ofits jurisdiction"

Los Angeles County vs Surety 208 Cal Rptr 194[If only a Civil Extra judicial notice exists then a responsibilitylies to challenge the court's lack of jurisdiction when thedistrict attorney has not filed a verified complaint. A challengemust be made to the court's lack of subject matter jurisdiction]

"Once jurisdiction is challenged, the court cannot proceedwhen it clearly appears that the court lacks jurisdiction, thecourt has no authority to reach merits, but, rather, should dismissthe action" Melo vs Us 505 1026

"There is no discretion to ignore that lack of jurisdiction"Joyce vs US 474 F2d 215

"The burden shifts to the court to prove jurisdiction"Rosemond vs Lambert 469 F2d 416

"Court must prove on the record, all jurisdiction facts related tothe jurisdiction asserted"Lantana vs Hopper 102 F2d 188Chicago vs New York 37 F Supp 150

(This author has on two occasions appeared before a quasi-criminalarraignment court/tribunal and informed the magistrate that as noverified complaint had ever been served him; that he had checkedwith the Clerk of the Court before his special appearance and thefile of the record of the case failed to show one had been filedwith the clerk, he was present only to inform the court of the lackof process and thereby the court/tribunal's magistrate of his lackof jurisdiction. I then read the above case cites and stated thatthe forum should sua sponte dismiss, no prosecution] {The forum inboth cases replied that the court did have jurisdiction acquired bythe Notice to Appear and proceed to enter a plea of 'not guilty'and called the issuing officer to take the stand and testify]

[Because this author takes the position that when a court proceedsforward without stating on the record the due process of law bywhich it has complete jurisdiction, he cannot assume the role ofactor in the proceedings. He then turned his back to the bench,refused to cross-examine the witness. Refused to take the stand andtestify or defend. When the bench/magistrate asked why I would notspeak in my defense, my response was, "This matter is before astranger to the bench, a stranger who has assumed the robe ofoffice to which he has no right"] [Once a magistrate or any publicofficial renders a judgment and sentence, the sentence being the

fine, that judgment and order that a fine be imposed on thedefendant, it becomes appealable.] [Both cases were appealed onground that the magistrate was without subject matter jurisdictionand because of that fact, magistrate had no personam by my mereappearance in the court room] [One case was reversed and dismissed;second case judgment was sustained by appellate court on the groundthat a verified complaint pursuant to 40513(a) had been filed. I did not ask for rehearing or appeal to theCourt of Appeal as I had more important cases pending and the finewas only forty dollars] [This was before the days I knewabout false arrest and false imprisonment by malicious abuse ofprocess]

ABSENT A COMPELLING STATE INTEREST AND WHERE PRIVATE PERSON DOESNOT FIT, COME WITHIN A STATUTORY CLASS, AND TAKES NO BENEFIT NOTOTHERWISE HIS UNDER THE CONSTITUTION THAT PERSON ENJOYS RIGHTS,PRIVILEGES AND IMMUNITIES FROM PROSECUTION BY THE PEOPLE IN THISCOURT AND SO THIS COURT DOES NOT HAVE AND CANNOT HAVE JURISDICTIONOF THE SUBJECT MATTER AND PERSONAM OF THIS PERSON

USC 14th Amendment"Without reference in the history of the amendment, thecircumstances under which and the special purpose for which it wasadopted, it is manifest that it does not create any new oradditional privileges or immunities. It operates on those alreadyexisting, and which may be conferred or recognized by the states -the privileges and immunities meant and embraced by thesame terms as elsewhere, and previously used in the Constitution"

Sailer vs Leger 403 US 365, 29 L ed2d 534[So, where the person is not engaged in some activity regulated andtaxed under a particular private statute, as in case of VehicleCode, and subject of the jurisdiction of Department ofMotor Vehicles, any act while using a private automobile forpersonal business and pleasure or private contract between privateindividuals is not subject to the police power of the state.Absent the commission of a mala in se crime and absent the malaprohibita violation, while privately using any conveyance,any stop by a peace officer under color of statutory law, withoutthe arrest warrant, demands the protection of the Bill of Rightsprivileges and immunities of the individual as imposed upon thestates by the 14th amendment. "Rights, privileges and immunitiesnot derived from the federal Constitution or secured thereby areleft to exclusive protection of the states"

Paschal vs Perdue 320 F Supp 1274[This is true because the rights, privileges and immunities areimposed by the 14th amendment as to citizens of a state whileenjoying, partaking of long recognized common law right to thepursuit of happiness, enjoyment of liberty and the right to earn alivelihood without restraint] [The procedure now used by thearresting officer fail to articulate a reasonable belief of thecommission of a crime, mala in se, and fail to articulate areasonable belief that this individual was a party subject to thejurisdiction of the Department of Motor Vehicles and subject topenalties as a licensee thereto] [For the above reasons and groundsthis court does not have jurisdiction as a court of generaljurisdiction nor as a court set to hear and adjudicate by trafficreferee or traffic commissioner as there is no overwhelminginterest by the state absent the public good and welfare and theparticipation or involvement of state as to this cause]

"Fact that conduct of business is subject to state regulation willnot covert its private activity into a state action under thisamendment, unless state has become entangled in activity"

Melara vs Kennedy C.A. 1976, 541 F2d 802"Factors to be considered in determining whether state is'significantly' involved in statutorily authorized private conductso that restrictions amendment apply are: source of authority forprivate action, whether regulation of private conduct by astute isso pervasive as to entangle state in the activity, whether state isjoint participant in activity or mutual benefits are conferredbetween state and private actor; existence of contract which makesprovision for the challenged activity and whether there has beendelegation of what has traditionally been state function throughenactment of stature"

MELARA, supra[Obviously where that nexus is not established between the stateand some private individual by THE PEOPLE OF THE STATE OFCALIFORNIA, this court, in any capacity, cannot deny theindividual- without the nexus rights, privileges and immunities asit is without jurisdiction when there is no compelling relationshipby the state] "A universal principle as old as the law is that aproceedings of a court without jurisdiction are a nullity and itsjudgment therein without effect either on person or property"

Norwood vs Kenfield 34 C 329; Ex parte Giambonini 117 C 573, 49 P732

"Jurisdiction is fundamental and a judgment rendered by a courtthat does not have jurisdiction to hear is void ab initio"Re Application of Wyatt 114 CA 557; 300 P 132Re Cavitt 47 CA2d 698, 118 P2d 846

"Thus, where a judicial tribunal has no jurisdiction of the subjectmatter on which it assumes to act, its proceedings are absolutelyvoid in the fullest sense of the term:Hahn vs Kelley 34 C 391 Belcher vs Chambers 53 C 635;Thaxter vs Finn 178 C 270, 173 P 163 Taliaferro vs County etc 182CA2d 587, 6 Cal Rptr 231

"In this connection, jurisdiction of the parties is as necessary asjurisdiction of the subject matter Before the rights of anindividual can be bound by judicial determination, he must bebrought within the jurisdiction of the court by actual orconstructive notice of the proceedings against him"Brown vs Campbell 100 C 635, 35 P 433First National etc vs Eastman 144 C 487, 77 P 1043

"Since jurisdiction is fundamental, and it is jurisdiction alonethat gives a court power to hear, determine, and pronounce judgmenton the issues before it, jurisdiction must be continuingin the court throughout the proceedings"Re Cavitt 47 Ca2d 698, 118 P2d 846

"When it appears that the court has no jurisdiction of a case, ithas no power to proceed in any manner, but should dismiss theaction" Smith vs Chin Chew 81 CA 704; 254 P 599

"A court will vacate or set aside a judgment void on its face, orone rendered without jurisdiction over the person or subjectmatter, on motion, and without affidavit of merits"California Casket vs McGinn 10 CA 5, 100 P 1079

"Since jurisdiction is fundamental to any valid judicialproceeding, the first question that must be determined by a trialcourt in any case is that of jurisdiction"Carrett 5 C 195; Clary vs Hoagland 6 C 685;Dillon vs Dillon 45 Ca 191, 187 P 27

[A reminder, all matters of vehicle code enforced by a MotorVehicles agency/department are civil actions and the same rulesapply as though criminal action] [If you intend to argueconstitutional- questions, such as the vehicle code is in part,

unconstitutional and being unconstitutionally applied in the matterbefore it, read very closely the following]

"If statute on which court's jurisdiction- depends isunconstitutional, the court has no jurisdiction in the proceeding,and since it may determine whether or not it has jurisdiction, itmay inquire into the constitutionality of the statute and appealfrom the judgment compelling it to proceed"Mendoza vs Small Claims Court 49 C2d 668, 321 P2d 9

"A court has jurisdiction to determine its own jurisdiction, for abasic issue in any case before a tribunal is its power to act, anda court must have the authority to decide that question in thefirst instance"Rescue Army vs Municipal Court of Los Angeles 28 C2d 460, 171 P2d8; 331 US 549, 91 L ed 1666, 67 S Ct 1409

"The inquiry here is whether the case presented is of the nature ofthose wherein the particular tribunal is authorized to render abinding judgment or decree"Palermo etc vs Railroad Comm 173 C 380, 160 P 228(determination of whether facts brought case within jurisdiction ofthe railroad commission)Scott vs Pacific etc 140 Ca2d 173, 249 P2d 1039(determination of whether facts brought case within exclusivejurisdiction) [Reminder, a question which must be presented to thecourt for its ruling, so that the status in which it sits isestablished Question, "Is this court sitting judicially on acivil action, or it this court sitting judicially on a criminalaction?

If the answer is 'judicially', ask "Where is the process andservice in my name? Does the court have the original filing in itsrecords? This is a must; whether the court answers 'criminal' or'civil' If it answers 'criminal' start screaming 'no fourthamendment rights read' as demanded under Cal Const Art I s13]

"To ascertain in what court a right may be settled or a remedyenforced, it is necessary to consider the nature of the demand inquestion, together with the limits of jurisdiction of the severaljudicial tribunals, for which purpose the tribunals are chargedwith judicial knowledge as to the extent of their jurisdiction"Southern Pacific vs Superior Court etc 27 CA 240 150 P 397James etc vs Superior Court etc 135 CA2d 352Fitzpatrick vs Sonoma County 97 CA 588, 276 P 113

NATURE OF DEMAND

"With respect to the nature of the demand in question, the test fordetermining jurisdiction is ordinarily the nature of the case asmade by the complaint and the relief sought. In this connectionthe jurisdiction of the court usually depends on the sufficiency ofthe averments and not on their truth"Newlove vs Mercantile etc 156 C 657, 105 P 971

"Furthermore, in the determination of the subject matterjurisdiction, the courts are not bound by the labels put on thepleading, nor by the caption of the pleading or prayer, but by thesubstance" Benson vs Sales Corp 238 CA2d Supp 937, 48 CalRptr 123

[Never forget, the nature of a 'traffic ticket' is civil and all ofthe foregoing is applicable When a magistrate informs that theNotice to Appear is a complaint, then the complaint, standingalone, has only given the magistrate subject matter juris, and asummons standing alone without a complaint, cannot give themagistrate 'subject matter juris; not personam without thecomplaint] [The notice/summons fail to show substance Fail toshow a controversy, judicable in nature, are nullities for purposesof due process] "As a general rule it has been stated that toinvoke the jurisdiction of a court, an actual or judicablecontroversy must be presented to it. An action not foundedupon an actual controversy between the parties to it and broughtfor the purpose of securing a determination of a point of law iscollusive, and will not be entertained"First etc vs Eastman 144 C 487, 77 P 1043

["actual controversy between parties" raises question of "realparty in interest?" Can the district attorney of a County or cityattorney appear for the People of the State when the issue is oneof Vehicle Code mala prohibita, and the DMV is not a constitutionalState Agency and the Real Party in Interest is the Department ofMotor Vehicles, and no real controversy exists between the peopleand the man, in or out of the jurisdiction of the Department?]

[In OK Corp vs Williams the review court said that if agovernment agency had standing and status to appear beforeadministrative agency, which has original jurisdiction to hear onenforcement of its own rules and regulations, then that governmentagency must, first instance go to the administrative agency, not tothe judiciary, otherwise, it denies the administrative agency itspower to enforce its rules and regulations, to the harm of the

agency and the defendant] [Obviously, the controversy exists onlybetween the administrative agency and its licensees and prosecutingattorneys for the people are limited to mala in se crimes] [for thepeople to be a Real Party in Interest, the people appearing asplaintiff and represented by a prosecuting attorney must have aninterest because they have been harmed]

"Plaintiff in a suit is not 'the real party in interest' unlesshe is a party who may be benefitted or injured by the judgment inthe case" Jackson vs McGilbray 148 P 703, 705; 166 P 1077, 1078

"Real party is one having actual and substantial interest in thesubject matter"Carey etc vs Sisco 64 SW 2d 430Mosher vs Hines 154 P2d 372, 373

[So, if by some quirk of which the author is ignorant, the people'sprosecuting attorney is actually appearing for the people, then,shouldn't he show the Department of Motor Vehicles as the RealParty in Interest?] [Author has stated within the RED BOOK thatmunicipal courts sit as ministerial officer in the municipal court,as an 'arm' of the DMV, and thus is bound by the proceduresdemanded in vehicle code for purposes of hearing, etc]

"Where the legislative scheme of delegation of power to an agencymakes a court the 'arm' of the agency in recording its order andaffording execution thereon, the agency and not the court retainsjurisdiction to modify or stay the order, and to determine thesufficiency of the performance thereunder"Vickich vs Superior Court 105 CA 587, 288 P 127;Independent etc vs RR Comm 70 CA2d 816, 161 P2d 827

[Now , assuming you have appeared before the municipal courthearing for DMV and unhappy with the order, which has been sent tothe DMV for its records, because you did not choose the alternativeavailable infra, appeal would be a review by Court of Appeal, along, long process. Best to go for a Writ/mandate/prohibition,which the author has found to be effective when the trial court hasbeen challenged as to a want of jurisdiction] "Where remedies areavailable to a party in both the judicial and administrative forum,he may choose either" SP Co vs Spring etc 173 C291, 159 P 865

"Where administrative agency has exclusive jurisdiction, forfeitureof rights to relief before it cannot confer jurisdiction upon

another tribunal" Dominguez vs Pendola 46 CA 220

[See the form for transferring the matter to the agency from themunicipal court a part of this RED BOOK] [It is the opinion of theauthor that when the court sits as an 'arm' of the DMV,and uses the sham tactics of a notice to appear constitutes acomplaint, and uses the ploy of the quasi-criminal procedure, toput the fear of arrest into your mind and no warrant of arrest isissued then the procedure is summary. See Chapter 28 SUMMARYPROCEEDINGS

ADDENDUM[The author of RED BOOK is constantly becoming aware of new issuesand means of attacking the lack of juris of courts regardless ofthe manner in which they sit] [Now we come to the issue of venueof cops/sheriffs/prosecuting attorneys for the People, and thecourt, for there are many courts; Courts within counties, withinprovinces, within judicial districts, within municipal courts sit;appellate courts which sit only to review judgments and orders andlaw within districts of a County, and Supreme Court of the State ofCalifornia, the only actual STATE COURT sitting for the STATE, notcounties, districts, municipalities.

This Court, in essence, sits to control the appellate courts withindistricts and trial courts within counties or municipalities.][All prosecutions for mala prohibita are tried by a quasi-criminalprocedure, although the court or prosecuting party will not use theprefix quasi, but criminal, in any nature, demand due process oflaw under Amendment Six.

"All criminal prosecutions ... and thedistrict wherein the crime shall have been committed, whichdistrict shall have been previously ascertained by law...."[Veh Code is statutory law, as such, it has force of law uponlicensees of DMV while engaged in inter-state commerce only withinthe state, on state highways. It's force of law does not extendinto incorporated or unincorporated venues, as, towns/cities/counties.

Local municipalities have their own business ordinances requiring alicense, so, State Veh Code, cannot intrude into their geographicalvenue/jurisdiction. Any notice to appear issued within those entitiesjuris/venue which cites sections of Veh Code is void/null.

Thus, the individual employee of a particular entity in issuing amala prohibita notice, must file it with the enforcement agency

within that municipal entity; the Sheriff of a County, with theCounty enforcement agency; the police officer of a particulartown/city with the enforcement agency therein.

[So, the only issue here is, what courts have venue to hearmatters of mala prohibita vehicle code; does any local enforcementagency have venue to enforce Vehicle Code; if the enforcementagency is the California Department of Highway Patrol, whereenforcement venue is restricted to state highways, can enforcementpower lie to file a Veh Code Notice to appear in or go before alocal district court, whose general juris is limited to mala in seand civil actions within that district?

Can a district court, county or justice, whose juris is limited tothe district within which it exists, entertain Veh C Notices whichare limited to state property highways by the local constabulary ora sheriff of the county citing State Law?] [Legislative statutesare only as to the corporate state and have no force of law otherthan to a class of citizens engaged in commerce on state highways;so what court may sit as 'arm' of the DMV? Can any court sit as'arm' of DMV?]

[Can the DMV delegate its state power to a local entity for purposeof enforcing its rules and regulations?] [Can any district courtof appeal, municipal court of a judicial district, or justicecourt of a district, have the original jurisdiction of a StateStatute when the mala prohibita was committed within their judicialdistrict?] [Is it not, in fact, error by local districtprosecuting attorney's for the People to initiate any action withinany court of this State, first instance, for the People, when thePeople of the State have no interest in administrative mattersregardless of the nature of the penalties]

READ AGAIN, OK Corp vs Williams[State Legislature may only enact statutes of the State, cannotenact statutes/ordinances for local entities, municipalities,districts, or unincorporated areas] [Legislature recognizes itslimitations as to regulations of traffic within municipalcommunities and so permits them to adopt rules and regulations forlocal traffic control]

Article 3 Local Regulation Vehicle CodeRules and Regulations; subject matter s21100 Local authorities mayadopt rules and regulations by ordinance or resolution regardingthe following matters:

(b) Licensing and regulating the operation of vehicles for hireand drivers of passenger vehicles for hire and drivers of passengervehicles for hire

(c)Regulating traffic by means of traffic officers Regulating ofHighways; Vehicle Code s21101 Local authorities, for thosehighways under their juris, may adopt rules and regulations byordinance or resolution on the following matters:[The subsections refer only to vehicular TRAFFIC]

[So, if you are a man, not using a vehicle for hire or a driver notfor hire, not a licensee of the local entity, how, in what manner,can the local entity have the juris to bring you under charges, intheir local court citing the State of California Vehicle Code?Should it not, if it has juris of the man, take him before thelocal enforcement agency?]

AFFIDAVIT BY AFFIRMATION OF ASSEVERATION AFFIDAVIT: A written orprinted declaration or statement of facts, made voluntarily, andconfirmed by oath or affirmation of party making it.....

AFFIRMATION: In practice, a solemn and formal declaration orasseveration that an affidavit is true, that the witness will tellthe truth, etc. this being substituted for an oath....."A solemn religious asseveration in the nature of an oath"1 Greenl. Ev. s371

Quakers, as a class, and other persons who have conscientiousscruples against taking an oath, are allowed to make affirmation inany mode which they may declare to be binding upon theirconsciences, in confirmation of the truth of testimony which theyare about to give.1 Atk 21, 46; Cowp 340; 1 Leach CrCas 64; 1 Ry&M 77

ASSEVERATION: An affirmation, a positive assertion; a solemndeclaration. This word is seldom, if ever, used for a declarationmade under oath, but denotes a declaration accompanied with solemn-ity or an appeal to the conscience, whereas by an oath one appealsto God as a witness of the truth of what one says. Black's 4thpage 152

[It is the author's opinion that Affidavits under CivilCode of Procedure s2003, affirmed under penalty of perjury underthe laws of the State of California, [corporate entity] and oathand must be sworn on testimony, are commercial law affidavits made

only by parties with a commercial nexus with the State ofCalifornia. Cannot be mandated upon a person without thatrelationship, without any obligation or liability, when she/he isnot a licensee, or is a licensee not enjoying any privilegeat the time of a traffic stop.

Nowhere in Vehicle Code is the word 'privilege' used or impliedor defined as to its nature. It is the author's opinion that uponreceipt of a Notice to Appear by some person using the commonpublic highways of the state, immediately an Asseveration should befiled with the District Attorney of the County and with the Clerkof the Municipal Court]

YOUR NAMEC/0 ADDRESSCITY, CALIFORNIA

TUOLUMNE JUSTICE COURT, CENTRAL JUDICIAL DISTRICTCOUNTY OF TOULUMNE

PEOPLE OF THE STATE OF CALIFORNIA

Plaintiff vs YOUR NAME (Defendant)

Case No. AFFIDAVIT BY AFFIRMATION AND ASSEVERATION

.................................................................

.............................................................

I, (defendant's name), the affirmation herein, does so state bythis solemn and religious asseveration:

1. That I am competent to state as to the matters herein2. That I have personal knowledge of the facts stated herein3. That all the facts of stated are true and correct and admissible as evidence in this matter.

[Here state all the facts of the stop, as to date, time, policeagency, officer's name and ID number.

State as to whether you are a licensee, not a licensee; whether youwere enjoying any privilege, special in nature and clearly defined,or implied that you are/were a person within the jurisdictionof the Department of Motor Vehicles and its Vehicle Code at the

time of the stop.

State whether you were using a conveyance, automobile, truck, orwhatever. Whether you were using it for personal benefit, pleasure,transportation, family use, business, or private business of anynature as to private business with any other private party, etc.State that, accordingly, you were not a person within the scope andduty of the named officer or a person within the jurisdiction ofDMV; if applicable, that you were on a federal interstate commonhighway and outside the jurisdiction of any state municipal courtwhere they could obtain subject matter jurisdiction for purposes ofenforcement of Vehicle Code]

I so solemnly assert/asseverate that the above is true and ifcalled upon as a witness will tell the truth as to the above factsand confirm by truth the testimony which I may give.

Your nameAffirmant & Declarant

ARTHUR FRANK SANFORD5894 Villa DriveRancho Cucamonga, Ca714 980 8559Plaintiff

SUPERIOR COURT OF CALIFORNIACOUNTY OF SAN BERNARDINO

ARTHUR FRANK SANFORDPlaintiffvsDefendant

NO.AFFIDAVIT OFARTHUR FRANK SANFORDIN SUPPORT OF

[CCP s2003]State of CaliforniaCity of Rancho Cucamonga ss.County of San Bernardino

Arthur Frank Sanford, on his oath deposes and says:

I, Arthur Frank Sanford, affirm under penalty of perjury under thelaws of the State of California, that this affidavit is true andcorrect and if sworn, can competently so testify.

DatedArthur Frank SanfordAffiant

Notarization is only necessary to make affidavits cognizable inforeign jurisdictions or venues.

Since this affidavit is only meant to be cognizable in law, and notin commercial matters and not in a foreign jurisdiction, no seal ofa notary public is needed at law.See Black's Law Dictionary, Revised Fourth, page 1209

NOTICE TO APPEAR IS EXTRA-JUDICIAL CIVIL/ADMINISTRATIVE

[A notice to appear is an extra-judicial civil notice forinitiation of civil procedure. Before it may compel appearance itmust issue by a court sitting with magistrate hearing foradministrative agency and person named is within jurisdiction ofthe administrative agency]

"Notice to appear is an invitation to appear in court. An accusedmay not wish to accept officer's invitation to appear in court"8 Misc2d 140

"The issuance of a traffic ticket is not an arrest, rather it is achoice to appear in a given court on a given day, at which time acharge may be made"Jones vs State, 167 NYS2d 53699 Ohio App 165 131 NE2d 682[In California, any issue of a traffic ticket is considered to bean arrest]

s40300 The provisions of this chapter shall govern all peaceofficers in making arrests for violations of this code withoutwarrant for offenses committed in their presence, but any procedureprescribed herein, shall not otherwise be exclusive of any othermethod prescribed by law for the arrest and prosecution of a personfor an arrest for an offense of like grade. [Remember, the offensecommitted in his presence must be while engaged in an activityregulated by the Department of Motor Vehicles.]

"Officer was not duly sworn at the time of issue of notice andnotice was not verified, therefore, the notice is null and void,and has no legal binding in this court or in this cause"Federal, 34 US 969Gleason, 32 Kansas 245Balard, 43 Ohio 340

"Held, that a uniform traffic ticket is not sufficient informationto be used as a pleading, and held that the absence of verifiedinformation was a jurisdictional defect which could not be waivedby plea of guilty" 3 NY2d 148

"A notice is not ordinarily to be considered a process for allwrits and process shall be under the seal of the court which theyshall issue, shall be signed by the clerk thereof, and shall bearthe teste of the judge or the Clerk"Chisholm vs Gilmer 299 US 99, 299 US 623

"As the notice does not allege or show any probable cause for anarrest and the fact that the petitioner was released on a promiseto appear before a committing magistrate for an arraignment, thatfact is circumstance, to be considered in determining whether infirst instance there was a probable cause for the arrest"Monroe vs Pape, Illinois 1963, 221 F Supp 635

[Here the United States Supreme Court has agreed that a Notice toAppear is an arrest, and in nature is a false arrest as when doubtexists that there is a probable cause. So, a person signing thatNotice, "Without admitting guilt..... " has

1. been released from physical custody arrest, Is in the'constructive custody' of the magistrate sitting as administrativeofficer of the administrative agency (here Department of MotorVehicles),

2. has not denied guilt of committing some cited section of VehicleCode and so it is not a plea of not guilty and cannot be a plea ofany nature and does not give subject matter jurisdiction to acourt. Such a compelled extra-judicial plea cannot be made on anextra-judicial civil process Notice to Appear, nor to a court bysuch a Notice/traffic ticket, or to a 'magistrate' even whensitting in a 'quasi' [that which seems but is not in fact] criminalprocedure.

A plea cannot be accepted from party named on a Notice nor entered

by a 'magistrate' until a formal verified complaint is filed,pursuant to Pen C. s948 et seq, and authority to so do, andprobable cause evidenced to some prosecuting officer, who files theverified complaint with a magistrate of the court and upon which awarrant may and must issue for the court to acquire completejurisdiction.

Traffic Offenses - Judge in Capacity of MagistrateArresting officer must file a complaint under oath stating offensecharged and copy of the Notice to Appear to the officer's lawenforcement agency. VC sss40500-40505-40506. The failure toappear mandates regular verified complaint.

Penal Code sss948, 963, 11.36 filed with court.MAGISTRATE. Person clothed with power as a public civil officer.

State ex rel Miller vs McLeod, 194 So 628, 630

"The word 'magistrate' does not necessarily imply an officerexercising any judicial functions"Schultz vs Merchant's Inur Co. 57 Mo 336

"A public officer belonging to the civil organization of state,invested with powers and functions which may be either, judicial,legislative, or executive."Martin vs State 32 Ark 124 Ex parte Whitle 15 Nev 146State vs Allen 83 Fla 655

[Remember, any officer of a court, regardless of how he sits in ahearing, has taken an oath of allegiance to uphold the Constitutionof the United States and is bound by the limited authority grantedto him by the people in its Bill of Rights to the government. TheFourteenth Amendment controls all administrative notice, hearingand adjudication proceedings where the party accused is a licenseeand was engaged in the activities under the jurisdiction of theagency on the date of the accusation initiated by a Notice toAppear]

"An action by the Department of Motor Vehicles, whetherdirectly or through a court sitting administratively as the hearingofficer, must be clearly defined in the statute before it hassubject matter jurisdiction. Without such jurisdiction of thelicensee, all acts of the agency, by its employees, agents, hearingofficers, are null and void"Doolan vs Carr, 125 US 618 City vs Pearson, 181 Cal 640

"Agency, or party sitting for the agency, (which would be themagistrate of a municipal court) has no authority to enforce as toany LICENSEE unless he is acting for compensation. Such an act ishighly penal in nature, and should not be construed to includeanything which is not embraced within its terms. (Where) there isno charge within a complaint, no evidence to prove a charge ifit were in a complaint, that the accused was employed forcompensation to do the act complained of, or that the actconstituted a part of a contract."Schomig vs Keiser, 189 Cal 596

"When acting to enforce a statute and its subsequent amendments tothe present date, the judge of the municipal court is acting as anadministrative officer and not in a judicial capacity; courts inadministering or 'enforcing' statutes do not act judicially, butmerely 'ministerially'"Thompson vs Smith, 154 SE 583

"A judge ceases to sit as a judicial officer because the governingprinciple of administrative law provides that courts are prohibitedfrom substituting their evidence, testimony, record, arguments,and rationale for that of the agency. Additionally, courts areprohibited from substituting their judgments for that of theagency. Courts in administrative issues are prohibited from evenlistening to or hearing arguments, presentation or rationale."ASIS vs US, 568 F2d 284

"Ministerial officers are incompetent to receive grants of judicialpower from the legislature. Their acts in attempting to exercisesuch powers are necessarily nullities"Burns vs Superior Court, SF, 140 Cal 1

[Thus, if you appear for arraignment on the date noticed on thetraffic ticket, you must inform the magistrate that a municipalcourt cannot hear the matter on the Notice as there has been nodetermination and claim by the issuing officer, or the districtattorney, that you are a person within the jurisdiction of theDepartment of Motor Vehicles.] [Author has exhaustively researchedMotor Vehicle Statutes from 1905 to the present date of 1992 forthe form of Notice to Appear. He has searched the Code of CivilProcedure, but nowhere can he find a NOTICE TO APPEAR.

The root word of NOTICE is defined in Black's 4th page 1211 asfollows:

NOTICE. Information; the result of observation, whether by sensesor the mind; knowledge of the existence of a fact or state ofaffairs; the means of knowledge. In another sense, "notice" meansinformation, an advise; written in more or less formal shape,intended to apprise a person of some proceeding in which hisinterests are involved, or informing him of some fact which it ishis right to know, and the duty of the notifying party tocommunicate. [In all of the notices to appear seen by the author,all have been written and given to some motorist by a quasi-peaceofficer, all were extra-judicial and had no seal or teste of anofficer of the court] [Author would suggest the followingprocedure when a person named on a Notice to Appear goes to theclerk of the court, and before appearing in the court room beforethe magistrate:

Question: Is a notice to appear a penal code process?Question: Is a notice a civil procedure under Vehicle Code?Question: Will this matter be heard as a crime?Question: Will this matter be heard by a quasi-criminal procedure?Question: Is this matter a special civil procedure, and will it be heard by a magistrate or judicial officer?

[If the clerk will not answer the questions, then ask for acontinuance so that you will have time to hire an attorney.

When a trial date is set, never ask for a jury trial, even if youare entitled to same. Why? You may ask. Because juries rarely finda defendant 'not guilty', and will always be told the law as thejudge determines it. The only questions you may want answered, arethe law as it does or does not apply to you. When you appeal, youcan only take forward for review the law of the case.

So, you want to be found guilty on the law, not the facts. In thisway, the magistrate cannot argue that he did not find you guilty,the jury did.] [Take note, listen carefully when they call yourcase. You will hear,

The People of the State of California, Plaintiff.

Understand that the People of the State of California areGovernment agents, and agencies of the Corporate State ofCalifornia, are not the People who created California State, arepublic.]

[Agents/employees/judicialofficers/magistrates/administrativejudges, are the People of the State of California, a CorporateEntity]

[District attorneys, police officers, cannot prosecute unless thePeople have been harmed. They can only defend or prosecute when thePeople of the Corporate State of California are named as defendantsin civil suit, and the People of the Republic California cannot besued without permission of the People, as they are the sovereign.

[Prosecuting attorney for the People of the State of California,Plaintiff, cannot appear on a Notice to Appear when there has beenno 'public wrong', as the violations of Vehicle Code are privatestatutory 'wrongs', and the People nor the people have an interestin private relationships to which neither is a party an no crimecommitted harming the people]

WRONG: "A violation of the legal rights of another; an invasion ofright to the damage of the parties who suffered it, especially atort" State ex rel 134 SW2d 132, 133

"It usually signifies injury to person, property, or in a moreextended sense, includes violation of contract."Daurizo vs Merchants 274 NYS 174

"The idea of RIGHTS naturally suggests the correlative one ofWRONGS; for every right is capable of being violated. A right tolive in personal security, a wrong on the part of him who commitspersonal violence; and the law is intended for the establish-ment and maintenance of RIGHTS, we find on closer examination, tobe dealing both with rights and wrongs. It first fixes thecharacter and definition of rights and then, with a view to theireffectual security, proceeds to define wrongs, and to devise themeans by which the latter shall be prevented or redressed.1 Steph Comm 126 (Black's 4th page 1788)

[Notice to appear merely cites sections of Vehicle Code, does noteither allege or charge a public wrong or a private wrong by theindividual named on the caption]

PRIVATE WRONG: "The violation of public or probate rights, whenconsidered in reference to the injury sustained by the individual,and consequently as subjects for redress or compensation"Huntington vs Attrill 146 US 657; 36 Led 1123

State vs Magee 224 P 1028, 1031 ALR 142

PUBLIC WRONGS: "Violations of public rights and duties which affectthe whole community considered as a community; crimes andmisdemeanors" 3 Blackstones's Commentaries 2. 4 Bl Comm 1Black's 4th p 1788

[Re-reading the above case law, can any reader find a ground forredress when a notice to appear is issued and not engaged in aregulated activity within the jurisdiction of the Department ofMotor Vehicles or the commission of a substantive mala in se crimewithin Penal Code as a wrongful act?]

WRONGFUL ACT: "Any act which in the ordinary course will infringeupon the rights of another to his damage, unless it is done in theequal or superior right "Victor vs Lewis, La App 157 So 293, 295

"No act is 'wrongful' unless the probability of injury to somedeterminate person or class of persons raises the duty as to thosepersons to refrain from such act"Harper vs Remington Arms 280 NYS 862

[A quasi-cop giving a civil extra-judicial notice to appear in acourt before a magistrate and therein the person given the noticeis harmed/injured when taken to a trial without subjectmatter jurisdiction by the magistrate and thereafter suffering afine or jail time has certainly been the victim of a wrongfulconduct wherein no duty attached to the person/individual affected]

WRONGFUL CONDUCT: "Conduct which contravenes some duty which lawattaches to relationship between parties affected"Duncan vs Lumbermen's Mutual 91 NH 349, 23 A2d 325, 326

[Certainly the law attaches a relation between the peace office andthe private citizen wherein the duty to the private citizen who hasnot committed a mala in se crime or a mala prohibita violationpeace officer has a duty not to arrest]

[If the notice to appear was written by a CHiP on a federalInter-state highway giving an appearance date before a countymunicipal court then it is without force for three reasons;

1. Department of Transportation has exclusive Federal Legislative jurisdiction of inter-state highways;

2. CHP has no jurisdiction other than on state highways;3. Municipal courts have no subject matter jurisdiction where federal jurisdiction exists]

s41401 VC. No person shall be prosecuted for a violation of anyprovision of this code if the violation was required by a law ofthe federal government, by any rule, regulation, directive or orderof any agency of the federal government, the violation of which issubject to penalty under an act of Congress, or any valid order ofmilitary authority.

[In this situation the particular officer, either traffic officerof peace officer is not only outside the scope and duty of hisoffice, but is outside the area of his jurisdiction even if withinthe scope and duty of his office]

[Here is a case where if the traffic officer is informed of s41401and then writes a Notice to Appear where he cannot, even if theperson given the ticket is trafficking, and an appearance is madeto the magistrate of the court and he is told of the faulty natureof the notice, fails to refuse the matter as being without thecourt's jurisdiction and then accepts a plea of guilty or enters aplea and thereafter renders judgment and imposes a fine, he fallswithin the wrongful conduct making a ripe party for a civil tortact in an individual capacity, was not functioning within hisofficial capacity as officer of the court]

ADDENDUM

[Author has searched Civil Code of Procedure and no where is the a'notice to appear' as part of that procedure]

[Further research on Chisholm produced this. The notice to appearis seemingly being used as a Notice of Motion as used in civilcauses, but fails as a Motion in civil causes as it does notconform, with practice,.pleadings forms and modes of proceedingexisting at this time in like causes in courts of record of Stateas it does not present issues and does not issue pursuant toverified complaint]

[The magistrate informs that a mere notice to appear constitutes acomplaint but 40513(a) clearly states that a notice may only beused as a complaint with permission of a person pleading guilty,any plea of not guilty demands the filing of a formal verifiedcomplaint by a prosecutor as the person issuing the notice is

merely a witness of the prosecutor and even the prosecutor musthave a verified complaint provided him by the witness]

[By a plea of not guilty by a person named on a notice, court doesnot obtain subject matter jurisdiction and no trial date may be setbased on a plea of not guilty until a formal verified complaint isfiled with the magistrate]

[Any warrant issued because a person fails to appear for a trial,based only on notice and not guilty plea is an abuse of lawfulprocess and firm ground for action of false arrest and falseimprisonment as to all parties]

[Never enter a plea absent the service of a verified complaint andsummons/warrant. A service of complaint only does not give personamjurisdiction. Absent the warrant/summons no need lies to appear andno violation of a lawful court order exists. Any bench warrant forfailure to appear is an absurdity and void without force of law.Ground for action]

In the case of People vs Domagalski, 89 Daily Journal DAR 12878,court of appeal stated; "This opinion is not intended as anendorsement of the People's delay in filing the subject complaintwith the court. We feel in most cases it would not place an undueburden on the prosecuting agencies to assure that complaints areprepared by the time defendants are scheduled to appear forarraignment. Failure to file the complaint in time for a noticedarraignment, or, in the alternative, to notice the court anddefendant of the need for a continuance, undermines the integrityof judicial process"

[This case cite is presented only so that when a magistrate statesthat the matter before him is a criminal procedure and not a civiland he is sitting as a judge the above ruling does bind him. Butremember, supra, a complaint must be served with thesummons/warrant.]

[The Court of Appeal tells it as it is, one cannot enter a pleawithout being informed of the allegations/charges against thedefendant and the showing of a prima facie and corpus delictiprobable cause]

[The trickery here is that if you stand before the bench and askfor a complaint and warrant and they hand it to you, you are inpersona jurisdiction because there you are, in the flesh. In the

trap. If as in the case of Karen, a complaint is asked and thecourt says, "come back in two weeks and we will have on for you"What course of action will be taken by you?]

[Do not go back until the complaint with warrant is served as themagistrate will argue that subject matter jurisdiction merelybecause a complaint has been filed with the court]

"Court cannot engage in any action which deprives a party before itof his constitutional rights. It has long been recognized that itis a proper function of courts to act as check on improper use ofboth executive and legislative powers.Powell vs McCormack 395 US 486, which quoted Kilborn vs Thompson103 US 168, to whit,

"Especially is it competent and proper for this court to considerwhether proceedings are in conformity with constitution and laws,because, living under a written constitution no branch ordepartment of government is supreme; it is the province and duty ofjudicial and administrative departments in cases regularly broughtbefore them, whether powers of any branch of government have beenexercised in conformity to the constitution; if they have not, totreat their acts as null and void."

Speaking by Mr. Justice Strong in ex parte Virginia,

we said, "A state acts by its legislative, executive or itsjudicial authorities. It can act in no other way. TheConstitutional provision, therefore, must mean that no agency ofthe State or offices or agents, by whom its powers are executed,shall deny any person within its jurisdiction the equal protectionof the laws. Whoever, by virtue of public position under the Stategovernment deprives another of life, liberty or property withoutdue process of laws, violates the constitutional inhibitions, as heacts in the name of and for the State, and is clothed with theState's authority his act is that of the State. This must be, orthe constitutional prohibition has no meaning"

"The only 'judicial' activity which can be instituted upon petitionby government is 'enforcement' review, which is summary procedurewith summary judgment, which is more in the nature of appeal by thegovernment, for no new record can be made. No new evidence may betaken for the record can be made. The administrative record is the'exclusive record for review'. No rationale may be supplied byagents of government or by the court itself hearing. Nor by

imaginative government counsel for the same is a devious deviceknown as 'post hoc' rationalization which is prohibited as a matterof law. Judgment by the court cannot be substituted for that of theadministrative agency"Abelliara vs District Court of Appeal (1941) 17 Cal2d 280,287-288; 109 P2d 942

[As court informs matter is criminal procedure, which would bejudicial procedure, court would move precipitously to harm ofindividual if it does not dismiss for want of record for review]

ADDENDUM

[Notice to appear is statutory procedure and is without force oflaw when the man/person named on the caption of the notice is notwithin jurisdiction of the DMV unless he is engaged in someactivity regulated by vehicle code and is a man/person subject toendorsement by DMV and further fails because it fails to plead thestatute]

"Pleading a statute is stating the facts which bring the casewithin it; and 'counting on it' in the strict language if pleading,is making express reference to it by apt terms to show the sourceof right relied upon"McCullough vs Clofax County 95 NW 31

"Every ingredient of which an offense is composed must beaccurately and clearly alleged. It is an elementary principle ofpleading that where the definition of an offense, whether it be atcommon law or statue, includes generic terms, it is not sufficientthat the pleading shall charge the offense in same generic terms asin the definition; but it must state the species, it must descendto the particulars. The objective is, first, to furnish the accusedwith such description of the charge against him as will enable himto make his defense and avail himself of his conviction ofacquittal for protection against a further prosecution for the samecause; second, to inform the court of the facts alleged, so that itmay decide whether they are sufficient in law to support aconviction, if one should be had. For the facts are to be stated,not conclusions of law alone. An offense is made of acts andintent; and these must be set forth with particularity of the time,place and circumstances" US vs Cook 17 Wallace 174

[Remember, although the above citation is addressing mala in seviolations, the same standards of law demand the same in statutory

law, mala prohibita]

"Offenses created by statute, as well as offenses at common law,must be accurately and clearly described, and, if the offensecannot be described without expanding the allegations beyond merewords of the statute, then it is clear that the allegations must beexpanded to that extent, as it is universally true that no chargeis sufficient which does not accurately and clearly allege all theingredients of which the offense is composed, so as to bring theaccused with in the true intent and meaning of the statute definingthe offense. Every offense consists of certain acts done orcommitted under certain circumstances; and, in the charge of theoffense, it is not sufficient to charge the accused generally withhaving committed the offense, but all circumstances constitutingmust be specially set forth" Arch Cr Pl 15th Ed 43

ADDENDUM

[When ever a ticket/summons/notice to appear is issued by aquasi-peace officer and he checks only 'traffic' box on the captionof the ticket, etc., that is your evidence that the matter beforethe court will be 'civil in nature', thus must be administrativeprocedure]

[When on the appearance on only a ticket etc., the court magistratecalls People of the State etc., Plaintiff, versus 'whomever'defendant, a question now arises; how do the People have aninterest in the mala prohibita?]

[If the People are represented by city/county attorney, as theyspeak only as a prosecutor acting on behalf of the Attorney Generalof the State, then the attorney general can only act to prosecutemala in se crimes, or in civil actions where the state has aninterest and are classified as Real Party in Interest.

The real party in interest must be noticed in all actions when thestate has an interest. So in all papers filed with the prosecutingattorney a copy must be filed with the attorney general, if thestate has an interest, if there is no interest by the state, thenlocal prosecuting attorney can not appear as plaintiff for thePeople, and the People must be excluded, be barred from the action,even assuming it was properly brought before the magistrate byfollowing mandated procedure clearly outlined in the vehicle code]

So! let's read how the state acquires a Real Party in Interest inan action before a magistrate:

"For the state to be 'interested' as a party, the state must havea direct and substantial interest of a monetary character"In re Kaindel 104 NE2d 619, 621Keplinger vs Lord 192 NE 549, 550

"State is interested in a suit only when it has a direct andsubstantial interest in the outcome and not where only concern isto see that citizens are protected in their rights"People vs Mitchell 148 NE 242, 243

"Real party interest is one having actual and substantial interestin the subject matter of suit" Carey vs Sisco 64 SW2d 430

"Real party in interest is that party who would be benefitted orinjured by judgment, or party entitled to avails of the suit,'interest' meaning material interest, interest in issue, or to beeffected, was distinguished from mere interest in question involvedas against mere incidental interest"Weber vs City etc., 97 P2d 667, 669

[Now here is an interesting sample of real party not being anattorney speaking for the state. Remember the two parties in anaction begun by Vehicle Code alleged mala prohibita is between theDepartment of Motor Vehicles and its licensees while they areengaged in some business activity which comes within the purview ofthe Vehicle Code]

[In such a situation, then the prosecuting attorney becomes anintervenor]

"Attorney has not interest in matter in litigation or success ofeither of parties or interest against as would entitle attorney tointervene in action or proceeding, and court acted beyond itsjurisdiction in permitting attorney to intervene"Meadow vs Superior Court Los Angeles County (1963)381 P2d 648, 59 Cal2d 610

[Read that again. An intervenor is a third party permitted in theaction as he has some collateral, implicit, or ulterior right,adverse to that of either or both of the others or to defend aresponsibility involved in the controversy. Black's fourth definesIntervenor p 956: An intervenor is a person who voluntarily

interposes in an action or other proceeding with leave of thecourt, citing MEADOW is grounds for dismissal of the action asmagistrate acted in excess of its jurisdiction, to your harm]

[As all prosecuting agencies function as arm of the AttorneyGeneral and he only has jurisdiction to act in the name of justicein a mala in se action or where the state has a direct involvementby some contractual nexus with some contractee performing acontract for the state, and the state has no relationship with theDepartment of Motor Vehicles, an independent corporation, privatein nature, and the only party with the power to enforce vehiclecode and its licensees the magistrate cannot, at law, permit aprosecuting attorney to intervene in the matter of anotice/summon/ticket, all traffic in nature.

"The courts will determine who is the 'real party in interest' inan action, by reference, not merely to the name in which the actionis brought, but as to facts as they appear on the record"Eastern etc. vs Grave's etc. 52 SE 837, 838

[So, intervenor without interest defined in supra cites must bebarred from the case when you so inform the magistrate the natureof the facts of the case of record]

[David Mayo of Oregon sent me some fascinating material which isapropos to the issue of a summons as notice is deemed by OregonCourts under their vehicle code]

[A notice is a civil extra-judicial notice, and so without force ofcompetent court with subject matter jurisdiction and bears no sealof the court or is it subscribed by the magistrate or the clerk ofthe court]

[A notice or summons issued without accompanying complaint is nulland void as they fail to inform the recipient of the nature of thecomplaint upon which a man/person named on the mere notice/summonsmust defend.]

[A notice/summons further is not binding on a recipient as therewas no proper service by a person not a party to the notice/summons,as at best the cop will only appear as a witness for someprosecuting agency, is not a party]

[Notice/summons further fails as quasi-officer cannot certify thata copy is a true and correct copy of the original as that may only

be done by a clerk of the court, who makes a true and correctcertified copy from the records of the court]

[As notice/summons is not a complaint verified by thequasi-officer, and is functioning as a private person at the timeof the stop, matter being civil in nature, and pursued underadministrative code regulatory/enforcement agency scheme, there isno delegated authority, by the enforcement agency, for thequasi-peace officer to act for or on behalf of the agency, as acomplainant, an if there were, the complainant must file hiscomplain/accusation, first instance with the enforcement agency]

[The above challenge to the incompetency of the merenotice/summons, standing alone, should be part of the Motion toQuash for Improper Service and want of jurisdiction by the officer]

Arthur Frank Sanford5894 Villa DriveRancho Cucamonga, CAQuasi-defendant

MUNICIPAL COURT, WEST VALLEY DIVISIONCOUNTY OF SAN BERNARDINO

People of the Republicof CaliforniavArthur Frank Sanford,Quasi-defendantSui Juris

NO. 55688NOTICE OF MOTIONMOTION TO DISMISSLACK OF PERSONAM JURISDICTION BYDISTRICT ATTORNEY OR MUNICIPAL COURT[United States Constitution Art. VI;4TH, 5TH, 6TH Amends;Cal. Penal Code s16; Cal Penal Code s 19d;Vehicle Code of 1959]

.................................................................TO THE JUDGE OF THE ABOVE ENTITLED COURT:

Quasi-defendant, Arthur Frank Sanford, Sui Juris, will appearspecial at a law & motion hearing at above entitled court, locatedat 8303 Haven Avenue in Rancho Cucamonga, California, at 8:30 am,at which time he will motion the district attorney and themunicipal court to dismiss the above cited case No. 55688 for alack of subject matter jurisdiction and personam of defendant.

The motion to dismiss will be based upon the following; History ofthe Case, Legal Status of the Quasi-defendant, United StatesConstitution Article VI, United States Constitution Amendments 4,5, and 6, Penal Code s 16, 19d; California Statute Vehicle Code of1959 and the included Memorandum of Points and Authorities, made apart of this motion, within this motion to dismiss for want ofjurisdiction by the law and case citations of California Court ofAppeals, State Supreme Courts of California and the several statesof the Union within the United States of America and the UnitedStates Supreme Court.

Quasi-defendant asks the court to take judicial notice that aNotice to Appear issued in his name, and notices being civilprocess in nature, void on its face when is merely certified andfurther void on their face when they fail to identify/state thenature of the action as one of admiralty, Maritime, contract,fraud, negligence, tort or true criminal or quasi-criminal, asquasi-criminal is a procedure used only where criminal penaltiesattach to a licensed activity under statutes regulating businessesand professions which are private in nature. Without the face ofthe notice stating the nature of the case the person named on thenotice has no way of knowing the jurisdiction nature of the man onthe bench and the manner in which the person named has been broughtinto the jurisdiction of the court and if the plaintiff has thestanding to petition the court and therefore the manner in which aperson may prepare a defense or denial of the matter.

Arthur Frank SanfordQuasi-defendant

HISTORY OF THE CASE

On June 22, 1989, quasi-defendant, Arthur Frank Sanfor, at the timenot engaged in commercial traffic in the business of transportationof goods or people upon the highways and streets, a licensedprivilege granted by the Department of Motor Vehicles to that classof persons who wish to hire their services and vehicles to the

public for gain profit and or compensation;

While traveling as a motorist for personal business andtransportation, south bound on Hermosa Avenue in the city of RanchoCucamonga, California, was stopped at the corner of Lemon Avenueand Hermosa Avenue, by a deputy of the San Bernardino CountySheriff. Quasi-defendant asked the Deputy the probable cause forthe stop at the time of his detainment.

Deputy Sheriff (hereinafter named 'deputy') informed thequasi-defendant (hereinafter named 'accused')that the probable cause was that the accused had failed to stop ata STOP sign posted at the above described intersection.

Accused, at that time, informed the deputy that he had made a stopand denied the accusation and that he was not engaged in thebusiness of transportation and asked the deputy if he had anyevidence that the accused was engaged in the business oftransportation. Deputy did not respond to the questions of theaccused. Accused then told the deputy to look at section 260(a) (b)of Vehicle code and section 10751 of the revenue & Taxation Code asthey showed that the accused was not a person within the specialclass named as a class of persons regulated, supervised whileengaged in business of transportation. Deputy responded that he didnot know about the code sections and refused to read the sectionsas demanded by the accused.

Deputy then asked to see the registration certificate and thedriver license and the evidence of proof of insurance of theaccused.

When the accused did not show proof of insurance to the deputy,deputy told accused that he must have insurance while 'driving' or'operating' a motor vehicle. Accused denied the accusation that hewas in violation of code as he was not 'driving' or 'operating' amotor vehicle.

Deputy then issued a mere certified civil notice to appearcaptioned with name of accused, citing sections 22450 and 16028(a)of Vehicle Code without any charge or allegation that the accusedwas in violation of the code or naming the accused in the body ofthe notice.

Accused then signed the notice "Without admitting guilt, I promise

to appear at the time and place below". Accused signed the noticeprotesting that his signature was obtained under threat of thetaking into custody of his body if he would not sign, the signatureof the accused was obtained by coercion and because the signatureof the accused is a plea of 'not guilty' and the notice is aconfession obtained under duress it is not admissible evidence ina prosecution of the accused at a lawful trial

STATUS OF THE QUASI-DEFENDANT

"The status of an individual, used as a legal term, means the legalposition of the individual in or with regard to the rest of thecommunity.

L.R. 4 P.D. 11.

The rights duties, capacities and incapacities which determine aperson to a given class, constitutes his status; Campbell Autin137...........

The Action of Assumpsit must be reckoned a technical instrument,which gave no help to the forces which were making the transitionfrom status to contact;

3 Hold. Hist. E.L. 349"

Bouvier's Volume 3, page 3129

The accused has not sworn an oath to support the Constitution ofthe United States, as he is not a member of a military organizationof the State or of the United States. He is not a member of apolitical organization which requires members to swear by oath tosupport the Constitution of the United States, nor is he anenfranchised voter. He is not a public or municipal employee, noran employee of the federal government which requires all employeesto swear by oath to support the United States Constitution. He isnot an employee of a corporation contracted to do business with orfor, any branch of government, be it military or civil, and he isnot engaged in maritime or admiralty commerce. Nor does anyevidence exist which show a 'joint adventure' or a 'limitedpartnership'. He is not a member of a judicial branch of the Stateof California, or of the United States. He is not an attorney atlaw, who is an officer of the judicial branch, required to take anoath to support the constitution of the United States. He is notan elected official of a local municipality, the State of

California, any of the several states of the Union or of the UnitedStates Federal government. He is not a member of a public Trust,whereby he must take an oath to support the United StatesConstitution. He is not an elected official of the legislature ofthe State of California, nor of a local Municipal Council or Boardof Supervisors. See attached Declaration of Status filed withpublic official and agencies as exhibit "A" and Amended declarationof Status filed with public officials and agencies as exhibit "B"

MEMORANDUM OF POINTS AND AUTHORITIES

I

CONSTITUTION WAS ENACTED WITH THE INTENT TO CREATE A GOVERNMENT OFTHE PEOPLE (sic) CONSTITUTIONS BY NATURE ARE CONTRACTS WHICH AREVOLUNTARILY ENTERED BY THE INDIVIDUAL BY OATH AND SWEARING OFFEALTY IN RETURN FOR THE BENEFITS OF A GOVERNMENT. WITHOUT THE OATHBY THE INDIVIDUAL TO THE CONSTITUTION OF THAT GOVERNMENTTHEREUNDERCREATED IT IS NOT BINDING ON THE UNSWORN INDIVIDUAL. HE IS OUTSIDETHE JURISDICTION OF THE CONSTITUTIONAL GOVERNMENT FROM WHICH HETAKES NO BENEFIT. THE QUASI-DEFENDANT IN THIS CASE IS SUCH A PERSONWITHOUT OATH TO THE CONSTITUTION.

Chief Justice Story in the court decision in Martin vs Hunter'sLeasee, Vol 1, Wheaton 304 (February 1816)speaking about the Constitution said, "The Constitution is acontract, a covenant. It is a Policy."

Kent in his Commentaries, Edition I, Part I, Law of Nations, whichis binding on the Constitution and thus superior to theConstitution says, "The most useful and practical part of the Lawof Nations is no doubt instituted on Positive Law, founded on usage,consent, and agreement"

God created Mankind.

Mankind created constitutions.

Constitutions create governments.

Governments create Rules, Code, Regulations and Statutes(hereinafter called Enactments) for the execution of thebusiness of the government. Most of which are applied by coercion,by deceit and fraud, to the harm of the subject of the government

in the guise of 'for the welfare of the people'.

The presumption of government is that all people are the subjectsof the government and that the government is the Sovereign of thepeople and all people are within the jurisdiction of governmentadministrative agencies. But it was not the intent of the Coloniststo create a SOVEREIGNTY, but by the very terms of the Constitutionto bind and restrict all branches of the government and this ismade abundantly clear in the Preamble to the Bill Of Rights -December 15, 1791.

"The conventions of a number of the States having at the time oftheir adopting the Constitution, expressed a desire in order toprevent misconstruction or abuse of its powers that furtherdeclaratory and restrictive clauses should be added: And asextending the ground of public confidence in the government, willbest insure the beneficent ends of its institution"

It is presumptively clear that it was not the intent of theColonists by their Constitutional Charter (a written grant ofspecific rights, a document setting forth the aims and principlesof a united group) to create a SOVEREIGN government conferringjuris on the people, in-toto, jurisdiction over the ColonistsThemselves it is clear that a Sovereign government could createtitles of nobility but the Constitutional Charter forbids it in:Article I., Section 9, Clause 8: "No title of Nobility shall begranted by the United States;......." and Article I., Section 10,Clause 1: "No state shall ......... grant any Title of Nobility"

Thus, it is clear that there is no sovereignty over the individualby the United States or a State of the Union absent the showing ofa jural or contractual relationship by a pledge of allegiance byoath or affirmation whereby the individual submits himself to thejurisdiction of the State or United States as a citizen of theState or of the United States.

CITIZEN: Black's Law Dict. fifth Edition:

Member of a jural society (state) who in associated relationssubmit themselves to rules of conduct.....

In re McIntosh, DC Wash., 12 F Supp. 177

On who under the constitution and laws of the United States, or ofa particular state, is a member of the political community, owing

allegiance.............Minor vs Happersett, 21 Wallace 162, 22 L Ed 627

Mere residency or inhabitation does not create a citizen orcitizenship. Jeffcott vs Donovan, CCA Ariz., 135 F2d 213, 214

Mere birth within the United States, without subjection to thejurisdiction thereof, does not create a citizen or citizenship.[birth creates an American]Nyman vs Erickson, 100 Wash. 149; 170 P 546, 547

Thus, government and jural sovereignty if claimed by the State ofCalifornia or this state court where this quasi-defendantrepudiates it, is presumptive and fictitious and the State and thischallenge for its lack of jurisdiction must be proved to exist.

Due process requires that the defendant have such contacts with thestate as to make it reasonable, in the context with the state as tomake it reasonable, in the context of the federal system ofgovernment, to require the defendant to defend against theparticular action which is brought by the state,executive/administrative.Shaffer vs Heitner (1977), 97 S Ct, 53 L Ed2d 683, 697

The recognizable bases for jurisdiction in a case but absent inthis case, when the matter before the court is civil in naturethough proceedings are quasi-criminal:(4) Citizenship; (7) doing business in the state; (11)relationships to the state which make the exercise of judicialjurisdiction reasonable.

Titus vs Superior Court (1972) 23 CalApp3d 792, 799

If the individual cannot be proved to be subject to thejurisdiction of any Constitution or other social or businesscontract by business license or compact, he also cannot be provedto be subject to the jurisdiction of any branch of governmentcreated thereunder.

If it cannot be proved that the individual is directly subject tothe jurisdiction of any state legislative enactment, it also cannotbe proved that he is indirectly subject to such jurisdiction by way

of Legislative Enactments.

In the absence of proof that the Individual is subject to thejurisdiction of any Constitution or other Social Contract orCompact, Jurisdiction over Him DOES NOT EXIST.

The general requirement that "....burden is on defendant to showthe non-existence of jurisdictional facts; Russell vs Butler, (Tex.Civ. App.) 47 SW 406; Glichrist vs Oil Land Co., 45 Am, Rep. 555,Bouvier's Vol 2, page 1763 is resolved by Article VI which clearlydefines exactly who is subject to the jurisdiction of theConstitution, and exactly who shall be Contractually Bound by Oathor Affirmation to support which Constitution in consideration foroffices of Public Trust and those benefits of Public Service andPublic Employment.

Article VI; "The Senators and Representatives before mentioned, andthe members of the several State Legislatures, and all executiveand judicial Officers, both of the United States and of the severalStates, shall be bound by Oath or Affirmation, to support thisConstitution;...."

Thus, the intent of Article VI defines exactly to whom theConstitutional Jurisdiction applies; since the fact that thepeople, in toto, are not included by the requirements of ArticleVI, prima facie; See: INCLUSIO EST EXCLUSIO ALTERIUS; Black's LawDict.; The inclusion of one is the exclusion of another. Thus, thefact that the people are excluded fro the demand.

Thus, no presumption can be made, by the State or any branch ofgovernment, or their officials of the particular branch, that aparticular person is subject to the jurisdiction of theConstitution without a showing of the oath/affirmation to theConstitution since all Constitutions are considered "in parimateria" (are to be constructed together) with all otherConstitutions; all Constitutions are subject to the same provisionof Article VI.

Since no Constitution Charter operates on the people at large, intoto, by virtue of the fact that the people are excluded from therequirements of Article VI, et sqq., and when pursuingCommon-Rights; occupations to earn a livelihood not unlawful; totravel for personal business and pleasure, the transportation ofpersonal property, upon the highways of the state without the needfor a license regulating his mode of travel, or the payment of

fees, taxes imposed on the Common-Right, he is not subject toConstitution created jurisdictions.

II

IF THE QUASI-DEFENDANT IS NOT SUBJECT TO ANY CONSTITUTIONALJURISDICTION, HE IS ALSO NOT SUBJECT TO ANY ENACTMENT MADE BY ANYCONSTITUTIONALLY CREATED LEGISLATURE STATUTE ENACTED ANDUNCONSTITUTIONALLY APPLIED TO HIM; AND, IF THE QUASI-DEFENDANT ISNOT SUBJECT TO ANY CONSTITUTIONAL JURISDICTION PRESUMED BY ANYCONSTITUTIONALLY CREATED BRANCH OF THE GOVERNMENT; AND, IFQUASI-DEFENDANT IS NOT SUBJECT TO ANY CONSTITUTIONAL JURISDICTION,HE IS NOT SUBJECT TO ANY JURISDICTION PRESUMED BY ANYCONSTITUTIONALLY CREATED JUDICIARY BODY.

In the complete absence of any lawful and verified oath oraffirmation made by a Non participant Individual, in this case, thequasi-defendant, appearing sui juris, to support any Constitution;or in the complete absence of proving a Higher Title to that Nonparticipant Individual, the quasi-defendant, In Personamjurisdiction does not exist; and in the complete absence of provinga lawful and voluntary contract evidenced by a certificate oflicense and the evidence that the quasi-defendant has enjoyed abenefit of a privilege granted by the license, the taking of gain,profit or compensation, and pledging himself and or his personalproperty rights to certain specified performance,subject matter does not exist; and,

In the complete absence of any lawful and formal verified complaintissued timely and by due process of law against the Nonparticipant, the quasi-defendant, wherein a real Injured Partyclaims a damage by harm, no criminal jurisdiction exists; thus,

In the absence of proving the existence of either In Personamand/or Subject Matter Jurisdiction, governmental Jurisdiction overthe Non participant, the quasi-defendant, does not exist. QUODERATDEMONSTRANDUS

PAGE 100

III

WHERE THE STATE DEEMS ITS PEOPLE TO HAVE BEEN HARMED BY THECOMMISSION OF A CRIME OR CRIMINAL PENALTIES APPLY TO VIOLATIONS OF

A LAWFUL, VALID, PRIVATE BUSINESS STATUTE,

IN INSTANT CASE, VEHICLE CODE OF 1959,

AND STATE HAS APPLIED THE STATUTE CONSTITUTIONALLY TO THE CLASS OFPERSONS NOTICED BY THE STATUTE,

AND LEGISLATURE BY ITS CONSTITUTIONAL AUTHORITY DEEMS VIOLATIONS OFTHE STATUTE TO BE EITHER INFRACTIONS OR MISDEMEANORS,

ATTORNEY GENERAL, AS VIOLATIONS OF STATE STATUTES ARE PROSECUTED BYHIS OFFICE,

MUST BE PROSECUTED WITHIN THE RESTRAINTS OF THE UNTIED STATESCONSTITUTION AMENDMENTS FOURTH, FIFTH, AND SIXTH WHICH ARE IMPOSEDON THE SEVERAL STATES OF THE UNION CONSTITUTIONS PETITIONING FORADMISSION TO STATEHOOD.

Where the police power of the state is used to enforce criminalactivities or criminal penalties may be imposed on an accused asthe particular administrative agency has no delegated police power,as is the case in the Department of Motor Vehicles an agency withinthe Business, Transportation and Housing Agency, Penal Code setsprocedure;

Penal Code s16; Kinds of Crimes;

Crimes and public offenses include:

1. Felonies; 2. Misdemeanors; 3. Infractions.

Penal Code s19d. Applicability of provisions of law relating tomisdemeanors as applicable to infractions.

Except as otherwise provided by law, all provisions of lawrelating to misdemeanors shall apply to infractions, including butnot limited to powers of peace officers, jurisdiction of courts,periods for commencing action and for bringing a case to trial andburden of proof.

In the case of People vs Gilberg, 21 NYS2d 920, 923, court saidthat a violation of vehicle code which provides that it be atraffic 'infraction' and not a 'misdemeanor', but cont..

PAGE 101

cont.... deemed it to be a misdemeanor for jurisdictionalpurposes.

Arguendo, a deputy who has no evidence that a person traveling bymotor vehicle is engaged in the business of transportation has nojurisdiction to accuse and arrest a person as he has no probablecause under the police power of a local municipality or the stateto prosecute private travelers in the municipality or the statewhere his power does not extend into Administrative Law Agencies.

Regulation power is limited to licensed or unlicensed personsengaged in the regulated activity. And the court in People vsVermillion (1916) 30 Cal App 417, 418 said "that there is nooffense of the statute when the statue specifies the receipt of orexpectation of compensation is an element of the offense and thatcondition is not fulfilled."

The court in the case of People vs Nunn (1968) 264 Cal App2d 919,922, said "that when a law enforcement officer observes a person'engaged'in any activity for which a license is required may demandto see the license certificate, with 'no probable cause.'"

Arguendo, if the deputy had probable cause to accuse and arrest theaccused then under 4th, 5th, and 6th amendments must procure asearch warrant to find the evidence of the commission of a crime orthe crime must have been committed in his presence when a publicoffense, which is not indictable but punishable summarily or byforfeiture of a penalty pursuant to Penal Code s836 (1) Wheneverhe has cont....

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cont....reasonable cause to believe that the person to be arrestedhas committed a public offense in his presence.

Thus, under Vehicle Code, when the accused was stopped and citedunder VC s22450, failing to stop for STOP sign, deputy was inexcess of his police authority when citing s16028 (a) of vehiclecode, no proof of insurance, as that violation is not a misdemeanorunder penal code nor failing to obey STOP sign. Upon such an arrestprosecuted by a quasi criminal procedure, accused cannot bycompelled to be a witness against himself, nor to an arrest without issue of and service of a warrant of arrest, be deprived of hisliberty, property or life, nor can he be questioned without beinginformed of the nature and cause of the accusation and under

Miranda he must first be informed of his right to an attorney atall stages of the proceedings unless he waives, in writing, thoserights.

USC Amendment VI

".......no Warrants shall issue, but upon probable cause, supportedby Oath or affirmation, and particularly describing the place to besearched, and the person or things to be seized."

USC Amendment V

"No person......... nor shall be compelled in any criminal case tobe a witness against himself, nor be deprived of life, liberty, orproperty, without due process of law,......."

USC Amendment VI

"In all criminal prosecutions, the accused.........., beinformed of the nature and cause of the accusation;...."

A notice to appear, tried as a crime, fails to charge or accuse andinform (the accused?) the nature and cause of any violation and thefacts therein. The nature being the fact that the (accused?) wasengaged in the regulated activity of 'business of transportation'and the violation cited was in the nature of harm to the people.

V

OFFICER AND DISTRICT ATTORNEY HAVE WITHOUT PROBABLE CAUSE OFOBSERVED PUBLIC OFFENSE COMMISSION, INTRUDED INTO, INVADEDACCUSED'S EXPECTATION OF PRIVACY AND FREEDOM OF MOVEMENT

Arguendo: People vs Vermillion, supra, page 13, para. 3; with nooffense evidenced by deputy, deputy violated the constitutionallyrestrictive rights of the government to perform without probablecause of 'engaged in' and intruded into accused's expectation ofprivacy as a motorist.

In State Supreme Court of California, in case of Ingersol vsPalmer, 87 Daily Journal DAR 8107, the court held that a'motorist', pursuant to United States Supreme Court casesColonnade, 307 US 72 and Biswell,406 US 311, have a considerableand legitimate expectation of privacy in their automobile,including an expectation of freedom of movement,citing (Deleware vs

Prouse (1079) 440 US 648, 662-663)

VI

STATUTES, COMMERCIAL VEHICLE CODE 1905, IS STATE BUSINESS STATURELICENSING PERSON TO ENGAGE IN THE BUSINESS OF TRANSPORTATION.REGULATION IS LIMITED TO CALIFORNIA HIGHWAY PATROL. POLICE POWER ISDENIED LOCAL MUNICIPALITIES BY THE CODE.

Vehicle Code is a state statute private business statue licensingcommercial business of transportation. Only (cont...)

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(cont...) California Highway Patrol may regulate by code and limitsregulation power to traffic upon the highways of the state andstate property under s34500 of vehicle code;

The Department of California Highway Patrol shall regulate the safeoperation of the following vehicles, subdivisions (a) thru (i) doesnot include passenger vehicles. Vehicle Code specifically forbidslocal municipalities under s21100 (b) Vehicle Code to regulatevehicles outside their licensing jurisdiction and limits them toonly motor vehicles and passenger vehicles for hire forcompensation and licensed by the municipality and driven oroperated within their geographical jurisdiction.

Article 3. Local Regulation s21100;

Local municipalities may adopt rules and regulations by ordinanceor resolution regarding the following matters, (b) Licensing andregulating the operation of vehicles for hire and drivers ofpassenger vehicles for hire. All other subdivisions of thissection limit local municipalities to the regulation of 'traffic'on streets and roads within their jurisdiction.

Black's Fifth defines 'traffic' as commerce; the subjects oftransportation on a route, as persons or goods; the passing to andfro of person, animals, vehicles, or vessels, along a route oftransportation, as along a street, canal, etc., traffic regulationsas the prescribed rules of conduct to promote the orderly and safeflow of traffic.

PAGE 105

No police power attaches to the regulation of traffic as Departmentof Motor Vehicles enforces code by civil actions. Thus, once thedeputy had made a determination that the accused was not in thebusiness of transportation and was not a business licensee of themunicipality of which deputy was an employee, that accused was notdriving, operating a vehicle for hire or compensation, that he hadno jurisdiction of the accused and as his jurisdiction does notextend to the enforcement of state private business statute andthat Vermillion supra, page 13, applied and the people had not beenharmed by the accused, again, nor jurisdiction to write a citationunder Vehicle Code.

Assuming that a person was 'engaged', Vehicle Code provides for theimposing of fines, penalties and forfeitures for violations ofvehicle code which may only be imposed on a lawful arrest andfiling of formal complaint to give the trial court jurisdiction ofsubject matter and personam. Thus, prosecution must be pursuedaccording to due process of law and such procedure must be insidethe restrictions of the 4th, 5th, and 6th amendments of UnitedStates Constitution imposed upon the several states of the Union.

All matters of Vehicle Code prosecutions are unconstitutionallyapplied by the statue itself to the deprival and harm of anaccused. An 'accused' is brought into the court by a mere civilnotice to appear and proceedings are by quasi-criminal action, butnotice does not accuse or allege (cont...)

PAGE 106

(cont...) or charge a violation naming accused in body of notice.The accused is compelled to enter a plea of 'not guilty' to anextra-judicial person under threat of false imprisonment if he willnot identify himself and sign the notice.

Thus, the signed notice is a coerced plea to an extra-judicialperson. After the coerced plea of 'not guilty' under duress,prosecutor is required to file a formal verified complaint namingthe accused, Thereafter proceeding shall be had according toadministrative law..

As all proceeding are pursuant to Vehicle Code, the pertinentsection is:

s40513, subd. (a) "........New paragraph. If, however, defendant

.........pleads other than guilty or nolo contendre to the offensecharged, a complaint shall be filed which shall conform toprovisions of Chapter 2, section 948 of Title 5, Part 2 of thePenal Code and which shall be deemed an original complaint, andthereafter proceedings shall be according to law."

According to statutory proceeding a verified complaint and warrantof arrest must first be served upon an accused to bring the accusedinto the subject matter and personam jurisdiction by the trialcourt. So saith the Constitution of the State and the UnitedStates.

VII

IF TRIAL COURT DETERMINES THAT IT WILL ABIDE BY 'BATTLE' THAT'INFRACTIONS ARE NOT CRIMES/PUBLIC OFFENSES', AND THUS, PROSECUTORAND THIS COURT NEED NOT ABIDE (cont..)

PAGE 107

(cont) BY PENAL CODE EVEN THOUGH 'BATTLE' IS NOT APPOSITE PENALCODE, AND ASSUMING IT IS ALLEGED AND EVIDENCED THAT DEFENDANT WAS'ENGAGED' IN A COMMERCIAL ACTIVITY, BUSINESS OF TRANSPORTATION; THEMATTER LIES FIRST WITH DEPARTMENT OF MOTOR VEHICLES; NOT WITHPROSECUTOR OR THIS TRIAL COURT WHEN THERE IS NO SHOWING OF HARM TOTHE PEOPLE ON ALL MATTERS OF ALLEGED VIOLATION OF VEHICLE CODE ANDENFORCEMENT OF THAT CODE'S RULES, REGULATIONS AND THE ACTIVITY,AGENCY IS PRIMARY JURISDICTION FOR ENFORCEMENT PURPOSES BY ITSQUASI-JUDICIAL POWERS AND THUS PARTY OF FIRST INSTANCE.

In People vs Battle, 50 Cal App3d, Supp 3; the court though did notprove anywhere within its interpretation but attempted to read themind of the legislative body, held that 'infractions' were notcrimes or public offenses and thus persons accused of infractionswere not entitled to the restrictions and demand of the penal codeplaced upon a prosecutor for the people by the Constitution (s).

Thus, with the appellate court ruling that 'infractions' are notcrimes, then they must be civil in nature and thus do not comewithin the purview of the prosecutor and he cannot petition thiscourt to hear when the agency itself has not heard and remedycarried to final appeal. Issue must be pursued administerially fora setting of the record to a final appeal by either party and onlythen my be moved to the judiciary.

VIII

DEFENDANT HAS A BENEFICIAL INTEREST TO BE PROTECTED AND PRESERVED.PROSECUTOR FOR THE PEOPLE MUST INITIATE ACCUSATION WITH LICENSINGAGENCY, DEPARTMENT OF MOTOR VEHICLES, THE PARTY OF FIRST INSTANCEAS PRIMARY JURISDICTION FOR ADMINISTRATIVE ENFORCEMENT PURPOSESMUST, CANNOT BE BY-PASSED WITHOUT VOLUNTARY SUBMISSION BY ALLPARTIES TO A SUMMARY PROCEDURE

Prosecuting attorney cannot play 'house detective' for (cont...)

PAGE 108

(cont) Department of Motor Vehicles. He may not act, function,directly or indirectly as enforcer for the Department of MotorVehicles rules, regulations or of its licensees, or any personacting outside the subject matter jurisdiction of the agency whichis limited to maritime summary procedure hearing under CommerceClause of the Constitution of the State and admiralty/maritimejurisdiction of Federal District Courts, where the jurisdictionlies.

Where a government agency or local municipality, (districtattorney, added) believes that an individual is a person within thedemands of a statute, of which it has authority to enforce, orstanding to initiate an action, naming the individual, where thematter is administrative license, there must first be a demand foradministrative enforcement.

The government agency is required to first exhaust alladministrative remedies before it may proceed on any civil action,as is the accused required.

Where the people seek enforcement of administrative licensee, itmust not skirt the administrative agency for enforcement by a 'merehearing officer' without the 'administrative record for review', itmust 'trigger' the administrative agency remedy, or it denies theagency its authority and power to enforce its own rules andregulations and its licensees, to the harm of and denial ofadministrative remedy to the accused.

O K Corp. vs Williams, 461 F Supp 540

The respondent (court, added) who would be sitting asadministrative hearing officer for a review of the 'exclusive

administrative record', must produce the administrative record, buthas not, and so cannot ministerially sit or hear on non-existentrecord, thus no power to affect the individual's substantive rights(Nance vs Tavern 150 P2d 773) cannot regulate or take from (Terr vsDaniels 22 P 159) any individual where there is want of substantialnexus by license (Lehnhausen vs Auto Parts, 410 US 356; reh denied411 US 910; Wisc vs Penny, 311 US 445)

Only a substantive relationship means jurisdiction' Dee vs Seattle,387 US 541; Camara vs San Francisco, 387 US 523

Agency (district attorney?/Department of Motor Vehicles?/ sheriff?/trial court?; questions added) have no authority to enforce anylicensee unless he is acting for compensation. Such an act ishighly penal in its nature, and should not be construed to includeanything which is not embraced within its terms. There is no chargein the complaint (notice to appear, added), no evidence to provethe charge even if in the complaint that accused was employed forcompensation to do the acts complained of.

Schmomig vs Keiser, 189 Cal 596

Practicing.......or engaging in a regulated activity without alicense is an offense, if a statute so provides, unless the statuespecifies the receipt or expectation of compensation as an elementof the offense, in which case there is no offense if that conditionis not fulfilled.

People vs Vermillion (1916) Cal App 417, 418;

Accused was not engaged in commercial activity of transportationfor hire, for profit, gain or compensation, not is it alleged orcharged by the 'officer' or the 'district attorney' or evidenced byany facts that 'accused' is of the class of persons required toregister a private passenger vehicle and assume the attendantobligations and liabilities with the receipt in return of anywanted or accepted privileges and benefits.

CONCLUSION:

FOR EVERY ACT WITHOUT JURISDICTION IS AN ACT OF TORT

With accused not a citizen, a Nonparticipant Individual andtherefore not subject to jurisdiction of any legislature branch,executive branch, judicial branch of state government and not

having committed an observed crime/public offense (see Battlesupra) and Sheriff and district attorney not having standing topetition the Department of Motor Vehicles and not having knocked ontheir door and accused thus denied his right to administrativeremedy and the court having no administrative re- (cont..)

PAGE 110

(cont..) cord to review, and prosecutor having failed to move thematter to Federal District Court by an admiralty action, courtshould sua sponde dismiss.

Every act perpetrated by a Constitutionally created Branch ofgovernment while absent Jurisdiction; every such act being requiredto be made unlawfully under force of arms; and every such acthaving been made without probable cause; then, every such act isrequired to have been made as a Trespass, and/or other Tort upon aNonparticipant Individual, and shall constitute a Case to bepursued against the Perpetrator in an action at-law for therecovery of Damages.

Arthur Frank Sanford

Quasi-defendant, Sui Juris

PAGE 111

Arthur Frank Sanford

5894 Villa Drive

Rancho Cucamonga, CA

Quasi-defendant, Sui Juris

MUNICIPAL COURT, WEST VALLEY DIVISION,

COUNTY OF SAN BERNARDINO

PEOPLE OF THE STATE OF CALIFORNIA

Plaintiff

vs

ARTHUR FRANK SANFORD

Defendant

NO. 55688

NOTICE OF MOTIONS

MOTION TO SUPPRESS

NOTICE TO APPEAR.

NOTICE TO DISMISS AS NOTICE APPEAR IS UNCONSTITUTIONAL.

Cal Const. Art. 1, s13

CCP s2065

MEMORANDUM OF POINTS AND AUTHORITIES

TO THE CLERK OF THE COURT:

This notice to suppress the notice to appear and notice to dismiss,is based upon the following memorandum of points and authoritiesshowing that the notice to appear is an unconstitutional deprivalof the defendant's right not to incriminate himself by compelledplea of 'not guilty' under threat of arrest and custody for therefusal not to sign a notice to appear.

By signature, notice becomes self-incriminating statement andconfession under duress of harm for failure to comply with thedemanded signature.

A plea of not guilty is an admission of the commission of a certainact, which may or may not be, a violation of a certain act, whichmay or may not be a violation by the defendant. Thus, defendant (cont...)

PAGE 112

(cont..) has admitted the act but denies he is guilty of violatingthe law for some reason which will be disputed in court.

A notice to appear must be verified and upon the written promise to

appear signed by person named upon the caption of the notice'without admitting guilt I promise to appear' is the same aspleading 'not guilty', and upon the filing of the notice with theclerk of the court named upon the face of the notice, a verifiedcomplaint must be filed with the clerk of the court in order forthe court to have subject matter jurisdiction and a warrant must beserved upon the defendant named in the verified complaint beforethe court will have personam jurisdiction.

Without the above due process of law, the notice to appear is notadmissible as probative evidence of a violation of vehicle code andwhere notice merely cites a section and subdivision of the codewithout alleging or charging the commission of a violation and ashowing of person on the caption of the notice as being engaged inand enjoying the privileges of the vehicle code, the business oftransportation, it is invalid and void upon its face.

Accordingly, this court must suppress the unverified notice toappear as it fails as evidence and dismiss the case incompetentlybefore it.

PAGE 113

Barnes vs Texas, 1956, 380 US 253

An allegation used in pleadings is a statement of what one canprove, a positive assertion of a fact.

Merrill vs Pepperdine, 36 NE 921, 922

and mere allegations, usually denied, are not usually sufficientfoundation for judicial or quasi-judicial determinations

Schneider vs Rochester, 54 NE 721, 722

Allegations held not conclusions of law:

It must be borne in mind that nowhere in the complaint (sic) isthere any allegation specifically attributing any of the alleged(sic) wrongful acts to defendant. It would be unfair to thedefendant to strike said defense. Defense was good and courtproperly refused to strike same.

Van Schaick vs Cronin, 260 NYS 635

On the issue of compelled self-incrimination, defendant argues thefollowing authority:

California Constitution, Article 1, s13, clause 5 ****nor becompelled, in any criminal case to be a witness against himself****

State court, in interpreting this clause, may look tointerpretation given in federal cases and in cases in sister statesas an aid to understanding of this clause.

People vs McCormick (1951) 102 CA2d Supp 954

This clause means no person shall be compelled to make anystatement orally, or in writing, anywhere or at any time, which maybe make or used against him in any criminal prosecution, thenpending or which may thereafter be brought against him.

McCormick, supra

This clause relieves witness from giving any evidence which in acriminal prosecution against himself might tend to establish theoffense with which he may be charged.

Ex parte, Cohen (1895) 104 C 524

Thus, if district attorney elects to prosecute the defendant for aviolation of vehicle code, defendant will not testify and theburden lies upon the district attorney to show due process of lawpursuant to 40513(a) and to (cont...)

PAGE 114

(cont..) produce evidence that defendant was engaged in andenjoying the benefits of the business of transportation, at thetime of the stop by a traffic/peace officer.

Any person, whether a party or stranger to the litigation, eitherin a civil action or criminal prosecution, may, if he sees fit,refuse to answer any questions, the answer to which, if true, willrender him punishable for crime, or which, in any degree, may tendto establish a public offense with which he may be charged.

Ex parte, Tahbel (1920) 46 CA 755

It the court magistrate makes a judicial ruling that Public

Offensesunder Penal Code s16 include infractions, then when deputy stoppeddefendant and defendant was denied the right to refuse to answerany possibly self incriminating questions but did so under thethreat of encagement, denied defendant protection of constitutionalrights, immunities, and privileges, and statutory immunity thendefendant was harmed.

The words 'criminal case' as used in this section are broader than'criminal prosecution' and, to bring a person within immunity ofthis clause, it is not necessary that his examination as witness behad in criminal prosecution against him, or that a criminalproceeding should have been commenced and be actually pending, butit its if there is a law creating the offense under which thewitness may be prosecuted.

Tahbel, supra

There is no statutory law within Commercial Vehicle Code binding aprivate class of persons who outside the Code travels as a motoristfor personal business of transportation using 'consumer goods' onthe highways of the state, traffic officer and district attorneyfor the people and magistrate treat the notice to appear as thoughprobative cause that (cont..)

PAGE 115

(cont..) person named thereon is a person within the Code & proceedaccordingly, thus party named was denied right of noself-incrimination and will not answer questions, where the/oranswer, if true, would incriminate him and subject him to possiblepunishment and no police power existed under statue itself.

Based upon the above authorities and arguments and objections,court must suppress the unlawfully obtained plea and confession, asa notice to appear when signed, is a confession obtained by threat,coercion and deceit, and not admissible in a court of law withoutthe prosecution showing mens rea and willfulness and corpusdelicti, as a confession, naked or otherwise, will not stand aloneto evidence guilt of the confessor.

The burden of proving all elements of the crime and the ultimateguilt of the defendant is, of course, on the prosecution.

People vs Hudson (1934) 139 CA 543, 544

The significance of the corpus delicti concept lies in the rulethat no part of it can be proved by the extra-judicial admissionsor confession of the defendant. Unless the corpus delicti isestablished, such statements cannot be admitted in evidence.

People vs Quarez (1925) 196 C 404, 409

People vs Parker (1954) 122 CA2d 867, 872

Trial judge instructed jury that 'in first instance' the corpusdelicti for every criminal case must be proven by satisfactoryevidence aside from any statement, confession, or admission ofdefendant People vs McMonigle (1947) 29 C2d 730, 738

Proper ruling is a dismissal of case for a lack or want ofprosecution by due process of the law as district attorney hasfailed to comply with 40513 (a) and (cont..)

PAGE 116

(cont..) officer, in some capacity unknown to the defendant, hasnot verified the Notice to Appear and neither officer or prosecutorhas filed a verified complaint and failed to provide any evidence,or bill particulars that defendant is person specifically withinthe jurisdiction of the statute.

It has been said that a prosecutor must give an accused, beforetrial, notice of particular acts or a bill of particulars.

Commonwealth vs Chitty, 17 SCL (1 Bailey) 379;

Commonwealth vs Davis, 28 Mass (11 Pick) 432

If this is not done court will not permit prosecution to proceed.

Commonwealth rulings, ibid

Arthur Frank Sanford

defendant

VOL 1 CHAPTER 8 - 1

PAGE 117

DEPARTMENT OF MOTOR VEHICLES IS LICENSING AGENCY FOR VEHICLE CODE,A CORPORATE PART OF STATE OF CALIFORNIA

[Department of Motor Vehicles is a Business Entity of the State ofCalifornia, a Corporate Entity and de facto government as to itslicensees. Corporate Entities are imaginary creations, a state ofmind, an artificial person created by the Legislature of theCalifornia Republic to do that which the Republic cannot do. Thatwhich the Republic cannot do is engage in private business which isoutside the government business of a Republic.

These are called Administrative Agencies and considered by many tobe the Fourth Branch of Government and are business'organizations', as such they function under UCC, (Uniform Commerce Code) and their rule book is the UCC]

UCC s1-201 (28)

"Organization includes a corporation, government or governmentalsubdivision or agency....................."

"Governments are corporations".

Penhallow vs Doane, 3 Dallas 55;

Clearfield Trust Co vs United States (1943) 318 US 363

"Governments descend to the level of a mere privatecitizen.......For purposes of suit, such corporations andindividuals are regarded as an entity entirely separate fromgovernment"

Bank of United States vs Planter's Bank 9 Wheaton (22 US) 904; 6 LEd 24

[So, let us turn to Administrative Law, the book of rules (cont..)

VOL 1 CHAPTER 8 - 2

PAGE 118

(cont.) to which all administrative agencies are bound by theFourteenth Amendment of the United States Constitution]

Source: Public Administrative Law.

A. Administrative Government

Establishment of Administrative Agencies

Constitutional Provisions

The California Constitution expressly creates only threeadministrative agencies; the Reapportionment Commission (see CalConst Art IV s6) the Fish & Game Commission (Cal Const Art IV s20)and the Personal Board (Cal Const Art VII s2).

By implication in various degrees the Constitution also creates, byrecognizing them..............

WHAT ARE ADMINISTRATIVE AGENCIES?

An Administrative Agency is an individual or a group of individualsperforming a governmental function.

Departments, Divisions, Bureaus;

There are between 50 to 60 departments in the state government,although only about 30 are denominated department...........All arecategories of governmental functions. The functions denominated todepartments usually are performed by directors, some of which arecalled commissioners.

Public Administrative Law - I

Licensing, page I - 6

(1) A licensing law describes a class of persons to whom itapplies, by defining an activity in which those persons mightengage. The law applies to all who engage in that activity.

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PAGE 119

ENGAGE: To employ or involve one's self; It imports more than asingle act or transaction or an occasional participation; 'Engage'means to take part in or be employed in......... while'participation' means simply to take or have a part or sharein..........Black's 4th p 622

(2) A licensing law also provides that anyone who engages in thesubject activity without a license is guilty of an offense. If theprohibition were unqualified, the law would not be a license law;it would be an ordinary penal law.

[So, now it can be understood that no person is required to have alicense merely because he/she used the common highways and streetsfor personal/private use]

[Penal law, of course, is a general law binding all persons withinthe geographical jurisdiction of the state in which they commit acriminal act; private law is that statutory law, private in nature,which is binding on a limited special class of persons clearlynamed and noticed and defined within the statute]

Vehicle Code s1500

There is in the Business, Transportation, & Housing Agency theDepartment of Motor Vehicles.

TRANSPORTATION is the removal of goods or persons from one place toanother, by carrier. Black's 4th

CARRIER is one undertaking to transport persons or property, or oneemployed in or engaged in the business of carrying goods for otherfor hire. Black's 4th

TRAFFIC is Commerce; trade; sale or exchange of merchan- (cont)

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(cont..) dize, bills, money and the like. The passing of goods orcommodities from one person to another for an equivalent in goodsor money. Black's 4th

BUSINESS: The term 'business has no definite or legal meaning. Theterm in vehicle code would be restricted to a business affectedwith public interest, devoted to public use.

"Business wherein person engaged expressly or impliedly holdhimself out to engage in business of supplying his product orservice to public as a class or limited portion of the public"

Masgai vs Public Service Comm Penn, 136 P2d 426, 434

[So, if you are not engaged in any of the above or employed in anyof the above, and a Notice to Appear/traffic ticket does notallege/charge that you are or were at the time of the issue of theNotice so engaged/employed, why are you being asked to appear in a'traffic court' before a magistrate for the Department of MotorVehicles? Why are you asked to show evidence of a Driver's Licenseor registration number and license tax paid by a 'tab' on thelicense plate?]

[Obviously, the Department of Motor Vehicles which has theauthority to enforce the Vehicle Code, which are the rules andregulations required to be obeyed by licensees of the DMV, whileengaged/employed in some business or transportation activity but,no jurisdiction over persons not engaged/employed within thoseactivities]

"It is basic in our law that an administrative agency may act onlywithin the area of 'jurisdiction' marked out

(cont..)

VOL 1 CHAPTER 8 - 5

PAGE 121

(cont..) for it by law. If an individual does not come within thecoverage of the particular agency's enabling legislation, theagency is without power to take any action which affects him"

Endicott vs Perkins 317 US 501 (1943)

Administrative Powers

"Administrative powers partake of all three traditionalgovernmental powers: legislative, executive, and judicial. In everycase, administrative powers are delegated instead of residual,which is the principal basis for distinguishing administrativepowers from the powers of the Legislature,the courts and the executive officer of the state government.Hence, the rule that an administrative agency 'must act within thepowers conferred upon it by law and may not validly act in excessof such powers"

Fertig vs State Personnel Brd (1969) 71 Cal2d 104

"While an agency may establish an operational policy, it may notadhere to that policy when to do so would deny a person statutoryor constitutional rights"

Bank of Italy vs Johnson (1926) 200 Cal 1, 15

"A government agency wants jurisdiction to 'directly' affect aperson or any subject matter related to his person and may not haulany natural person into administrative forum without his voluntaryassent by subscription to a particular 'regulatory scheme' "(Wickard vs Filburn) and it is impossible to prove jurisdictionexists absent a substantial nexus with the state, such as voluntarysub- (cont)

VOL 1 CHAPTER 8 - 6

PAGE 122

(cont) scription, contract, license. All jurisdictional factssupporting the claim that the supposed jurisdiction exists mustappear on the record of the court" (Pipe Line Vs Marathon, 102 S Ct2585; quoting Cromwell vs Benson 285 US 22)

[If you are a licensee and traffic tickets were issued at a timewhen enjoying the privilege of the license and now the tribunal isinforming you that it is going to limit the use of the benefit, orsuspend/condition the use of the privilege, or revoke, then becausea constitutional issue is raised by that threat, or because any ofthe above were committed, then a notice must issue for a hearingand hearing held before the license effected]

[A licensee cannot first rush to the judicial branch of government(remember you were not before a judicial officer when you appearedin the municipal court even though you may have been informed thatthe matter was a criminal proceeding)]

Government Code s11503

A hearing to determine whether a right, authority, license orprivilege should be revoked, suspended, limited, or conditioned,shall be initiated by filing an accusation. The accusation shall bea written statement of charges which shall set forth in ordinaryand concise language the acts or omissions which the respondent

(that is the accused) is charged, to the end that the respondentwill be able to prepare his defense. It shall specify the statutesand rules which the respondent is alleged to have violated, butshall not consist merely of charges phrased in language of thestatutes and rules. The (cont..)

VOL 1 CHAPTER 8 - 7

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(cont) accusation shall be verified unless by a public officeracting in his official capacity or by an employee of the agencybefore which the proceeding is to be held. The verification may beon information and belief.

[So, when a magistrate informs that he is affecting the use of alicense he is acting outside the scope of magistrate and denies dueprocess of and equal protection of the law under the 14thAmendment. If he commands that the license be immediatelysurrendered to the court and informs that you may not use/drive anypassenger/truck/conveyance vehicle then he has taken form you: (1)right to an administrative hearing by the agency, (2) taken fromyou a vested right, (3) a fundamental right, without due process ofthe statutory law or judicial trial pursuant to a true, substantivecommission of a crime, mala in se]

"Administrative remedies must be exhausted before resort may be hadto the courts:Arguello vs Cross 88 F Supp 107; 83 CalApp2d 759; 66 CalApp2d 870

"Judicial determination even of constitutional issues ordinarilymust await the exhaustion of prescribed administrative remedies:399 US 954; 339 US 932

[On a challenge of an adverse ruling by the agency or the failureof the agency to hear, the time is ripe/appropriate to go eitherstate court or federal court on a Complaint for DeclaratoryJudgment and Injunctive Relief]

VOL 1 CHAPTER 8 - 8

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[A determination is necessary for a judgment as to whether theright to travel is a vested right granted only by license or

whether the right to earn a livelihood by engaging in some privatebusiness traditionally practiced and recognized in common law andthe use of the common highway is not used for the conduct of thatprivate business but merely as a means of traveling from point topoint but because the common highway is used demands a license todo so]

[The chief concern of administrative law, as of all other branchesof civil law, is the protection of civil rights and its subjectmatter is therefore the nature and the mode of the exercise of itsadministrative power and the system of relief againstadministrative action]

"That the rules of judicial review are a part of administrative lawis confirmed by the statement that it is 'a simple but fundamentalrule of administrative law' that a reviewing court, in dealing witha determination or judgment which an administrative agency alone isauthorized to make, must judge the propriety of such action solelyby the grounds invoked by the agency"

Securities vs Chenery 332 US 194, rhring denied 332 US 783

"Lawyer's administrative law, roughly speaking, embraces the lawwhich is pertinent to the bearing of administration upon privatepersons and property"

Fuches, 47 Yale L J 540

"and indicates to the individual the remedies for the (cont)

VOL 1 CHAPTER 8 - 9

PAGE 125

(cont) violation of his rights"

25 Yale L J 658

[The major elements in the judicial role in relation toadministrative law are, within the constitutional and statutorylimitations of judicial power, to maintain the Constitution byseeing that the powers are not unlawfully vested in administrativeagencies, and to maintain the constitutional, statutory, and thecommon law rights of persons by seeing that powers lawfully vestedin administrative agencies are lawfully exercised, without

undue extension by the administrative agency of its own power, orinvasion of the powers of the judiciary]

I Am Jur2d s26:

Statutes and Ordinances, in general:

"A statute or ordinance must be constitutional not only in itsobjectives but also in the means of administration and theenforcement provided, which must conform to the limitations imposedby the federal, national, and state constitutions"

Vessering vs Annunzio 1 Illinois 2d 108

s27

Who may question constitutionality.

"The elementary doctrine that the constitutionality of alegislative act is open to attack only by a person whose rights areaffected thereby, applies to statutes relating to administrativeagencies, the validity of which may not be called into question inthe absence of a showing of substantial harm, actual or impending(declaratory judgment, supra)(cont..)

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(cont) to a legally protected interest, and directly resulting fromenforcement of the statute"

Board of Trade vs Olsen 262 US 1; 29 ALR2d 1051

"Thus, where a statute applies to different classes of persons acontestant may raise questions only to the matters proper to hisown class"

Garden Courts vs Hartnett 65 A2d 231

[An administrative agency is a .......(see supra page 1) and thusmay sue and may be sued as individual(s) and any claim when sued asdefendant(s) immunity cannot be sought as they are not part ofexecutive branch of government who have absolute or qualified

immunity as the executive branch 'conducts public business', whereas, as administrative individuals they conduct an administrativeenforcement scheme which regulates only private licensees. Privatelicensees and the administrative agency are not part of or engagedin any 'public business' thus, agency individuals cannot be and arenot protected by immunity as are general executive officials]

"The Supreme Court has made clear that absolute immunity dependsupon the particular function performed by an official"

Butz vs Economou 438 US at 508 (1977)

"The question is not one of status, but of the 'nature of theresponsibilities of the individual official' "

Cleavinger vs Saxner 474 US 193, 201 (1958)

"The prime categories of executive officials that are entitled toabsolute immunity are those whose functions parallel the functionsof judges and prosecutors"

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Butz 438 US at 511-15 and see

Schlegel vs Bebout 841 F2d 937, 942 (9th cir. 1988)

[Administrative agency powers are not executive and their agencypowers to enforce are 'quasi-judicial'; 'that which seems to be butwhich is not']

[So, the bottom line is, whether you are a licensee or not alicensee of the agency, if you are not a private contract carrier,or common carrier, or if you are a private contract carrier, orcommon carrier, if at the time of the unlawful stop by a peaceofficer, you were not so engaged, you do not come within theadministrative jurisdiction. Any action by the agency by amagistrate sitting for it is a violation of common law rightsprotection as even an agency with exclusive jurisdiction has itslimits within the statute conferring the power. Under thosecircumstances the injured party may proceed directly to thejudiciary for a court determination without exhaustingadministrative remedy as it does not exist without the agency

jurisdiction]

See, Tunstall vs Brotherhood 323 US 210, 89LEd 187;

Steele vs Lousville & NR Co 323 US 192, 89 Led 173

ADDENDUM

1 Am Jur2d ADMINISTRATIVE LAW

The chief concern of administrative law, as of all other branchesof civil law, is the protection of private rights, and its subjectmatter is therefore the nature and the mode of exercise ofadministrative power and the system of relief againstadministrative action.

VOL 1 CHAPTER 8 - 12

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Lawyer's administrative law, roughly speaking, embraces the lawwhich is pertinent to the bearing of administration upon privatepersons and property. (Fuchs 47 Yale LJ 540) as that part of thelaw which fixes the organization and determines the competence ofthe authorities which execute the law, and indicates to theindividual the remedies for violation of his rights. (Fuchs Yale LJ658)

"Any issue properly presented to the Department of Motor Vehiclesfor a determination and submitted for a final decision,

(a) must be heard and decided on the administrative record

(b) thereafter cannot be heard in any court upon a petition ofgovernment agency"

California vs Sims 32 CalApp3d 468 (1981)

"Agency of government must scrupulously observe its rules,regulations, or procedures which it has established. When it failsto do so, its actions cannot stand and courts will strike it down.This Doctrine was announced in US ex rel Accardi vs Shaugnessy 347US 260, 98 Lwd 681 (1954).

The failure of the agency to follow established procedures was held

a violation of due process. Accardi Doctrine has been utilized bycourts of appeal US ex rel Brooks vs Clifford 409 F2d 700, 706"

ADDENDUM

[An alleged defendant cannot enter a plea on a mere Notice toAppear, nor may court when no written waiver shows on the record.Beyond the fact of law that notice give no (cont)

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(cont) trial court jurisdiction lies the fact that any matter ofmala prohibita vehicle code is a civil action administrativelyconducted pursuant to vehicle code procedures which are bound bythe law of the constitutions State and Federal]

"Although private, personal, civil statutes, are, in instant case,occupational statutes, where particular statute permits a penaltyof incarceration, when brought before a competent court,persecution may be by penal action but it is not necessarilycriminal prosecution as statute is civil."

US vs Oregon etc 180 F2d 483

"The fact that the statute provides that the penalty shall berecovered by civil action has been regarded as conclusive of thenature of the action"

Us vs Southern etc, DC Cal 162 F 412, aff'd 171 F 360

"The fact that the proceeding is brought in the name of the Peoplewill not alone prevent it from being regarded as civil in nature(Peo vsBriggs 20 NE 820; 114 NY 56) nor is the fact that the proceedingmay be commenced by a warrant for the arrest of defendant in itselfsufficient to change the character of the proceeding from civil tocriminal (Alton vs Kirsch 68 Ill 261; 25 CJ p1182 n 60) "

3RD ADDENDUM

BUSINESS TRANSPORTATION & HOUSING AGENCY

s13975 Existence of agency; departments

The Business & Transportation Agency in state government is herebyrenamed the Business & Transportation & Housing Agency. The agencyconsists of.....Department of Cali- (cont)

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(cont) -fornia Highway Patrol (and all the while you believed thatit was a police agency)....Department of Motor Vehicles

s13976 Secretary

The agency is under the supervision of an executive officer knownas the Secretary of the Business & Transportation and HousingAgency

s13978 The secretary has the power of general supervision over andis directly responsible to the Governor for the operations of eachdepartment, office, and unit within the agency. The secretary mayissue such orders as the secretary deems appropriate to exercise ofany power or jurisdiction, or to assume or discharge anyresponsibility, or to carry out or effect any of the purposes bylaw in any department in the agency.

[Now, reading this section, the author is beginning to believethat, the party of first instance, as to violations of thepersonal/private interests of individuals being prosecuted byDepartment of California Highway Patrol and Department of MotorVehicles is, in actuality, the Secretary of the Business andTransportation Agency. That is where, to quote Harry Truman, "thebuck stops here"]

s13978.4 Exercise of authority of governor; representation ofgovernor (whoops, maybe the buck is the governor, or a combinationof the Director of the Department of Motor Vehicles and theDepartment of the California Highway Patrol and the Secretary andthe Governor)

The Secretary of the Business and Transportation and (cont)

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(cont) Housing Agency shall exercise the authority vested in theGovernor in respect to the functions of each department, office, orother unit within the agency, including the adjudication ofconflicts between or among the departments, offices, or otherunits; and shall represent the Governor in coordinating theactivities of each such department etc., with those of otheragencies, federal, state or local (note the use of lower cases instate, which identifies it as the Corporate state, not the State ofCalifornia, Republic)

s13982 Delegated powers

Whenever a power is granted to the secretary, the power may beexercised by such officer or employee within the Agency asdesignated in writing by the secretary.

[Can the author interpret, the above, as meaning that perhapssomeone should demand a certified copy of the delegation ofauthority, in wiring, of the Highway Patrol Commissioner andDirector of Department of Motor Vehicles? The only way it can beknown is by the asking for that information]

PAGE 132

CITIZEN'S LAW REVIEW

Publisher - Public Interest Law School

Vol 1 Issue 5 - 1992

In law, one must always inform opposing party/person/man that whathe is about to do or has done will harm you, and thus given theopportunity to do that which is right and lawful. If after beingwarned, that party/person/man fails to protect you from his harmfulact, grounds for lawful suit at law, which could be a civil rightsdeprival (42 USC 1983) or action naming him/her as privateindividual. Either action would be based on his or her actingoutside the scope and duty of office.

Vehicle Code Article 2 Release Upon Promise to Appear

Notice to Appear s40500 (d) para 3

"If , after an arrested person has signed and received a copy of anotice to appear, the arresting officer or other officer of the

issuing agency, determines that, in the intrest of justice, thecitation of notice should be dismissed, the arresting agency mayrecommend, in writing, to the magistrate or judge that the case bedismissed. The recommendation shall cite the reasons for therecommendation and be filed with the court."

"If the magistrate or judge makes a finding that there are groundsfor the dismissal, the finding shall be entered on the record andthe infraction or misdemeanor dismissed."

If the arresting officer or other officer issuing agency, and heremy guess could be that it was an employee of the Department ofMotor Vehicles, immediately after issue of "notice/citation",obtain full name and address of the issuing agency individual,notice him/them that, in the interest of justice', thenotice/citation be dismissed as pursuant to s40500 (d).

Let's define two words used within the section: Black's 4th defines'citation, as a, "writ issued out of a court of competentjurisdiction, commanding a person therein named to appear on a daynamed, or show cause why he should not." So, obviously the noticeto appear is not a lawful court citation and so your show of causewhy you should not would be the want of competent jurisdiction;now, let's look at the Notice 'To' Appear among the manydefinitions of 'To' in Webster's are "when". So, obviously theNotice given by the arresting officer is not a lawful order of acourt, but an invitation as to 'when' you should appear, by thedate on the notice, which is an exta-judicial civil notice, withoutforce of law by a competent court.

So, because you were not, at the time of a 'stop', a man within thejurisdiction of a competent court, and no mala in se crime had/wascommitted, the argument becomes "how did the peace officer have thepower of arrest, without a warrant, when you were not 'using' thecommon public highway for a purpose for which you would becompensated?" A man using the highway for personal travel,business, pleasure assumes civil liability to some fellow citizenwhen he fails to use reasonable care and concern for others usingthe highways and thereby harms some other person or person'sproperty.

Peace officer, absent the mala in se crime had no police power toarrest and absent the mala prohibita violation when you were notusing the highway for profit, no police power exists under VehicleCode enforced under administrative law, and, so, the only other

'issuing agency' must be the DMV, as employees of that agency havethe power to command you to appear when they (cont)

PAGE 133

(cont) file an 'accusation and set a hearing date and you are aman/person within their jurisdiction and they have delegated somemunicipal court magistrate to hear or a justice of a Justice Court.

Remember, an arrest without a warrant, lays the burden on thearresting man/person to prove the probable cause for the arrest;remember, an arrest pursuant to vehicle code is a civil arrest, butno police power attaches to vehicle code; the power for civilarrest lies within a court sitting civilly only for a contempt ofcourt when a lawful order of the court is disobeyed..

Without the issue of a 'citation' by a competent court and withouta contempt of lawful order, and without the probable cause anyarrest is a violation/deprival of your Bill of Rights, constitutesa false arrest and false imprisonment and the subject of a 1983action or habeas corpus.

So, in writing, ask the arresting officer that he request the courtto dismiss in the interest of justice on the grounds supra.

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THE RIGHT TO ENGAGE IN COMMERCE CANNOT BE REGULATED BY LICENSINGLAW AS TO THE INDIVIDUAL EARNING A LIVELIHOOD

[Administrative Agencies are considered to be the Fourth Branch ofGovernment. They were created by the Republic of California to dothat which the Republic cannot do. There is no constitutionalauthority for the Republic to stop commerce by the individual bylicensing laws, demand for registration of business equipment forpurposes of taxation.

The legislature of the Republic created the Corporate State ofCalifornia at the request of certain special classes of the peoplewho petitioned; We, the People, our elected public officials, to dofor them what the constitution would not permit directly, createindividuals as artificial persons by licensing law which givelimited liability to that class who in turn submit to codification

of commerce and taxes which otherwise could not be imposed on theindividual not licensed.

This was accomplished by creating private agencies manned byindividuals, not officials of the Republic, known as AdministrativeAgencies who, though without police power to enforce theirregulations as they are civil organizations, would have to power toenforce its regulations on its licensees under Administrative Lawprocedures when the licensee voluntarily submits to special civilproceedings by summary process.

By this process, carried out by deceit, misdirection,misrepresentation and coercion by threat of arrest, a contin-(cont)

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(cont)-uing process has evolved whereby the private individualusing the common public highways for personal business in pursuitof earning a livelihood and the right to contract in commercebetween private parties, they have been conditioned to believe theto engage in commerce is a 'privilege' for which they must applyand by which they can be taxed by license fees, registration fees,and 'use' tax on private property not dedicated to the benefit ofthe public]

"The Constitution found it (commerce) and existing right" saidChief Justice Marshall in 1824 (Gibbons vs Ogden 9 Wheaton 1, 211)"and gave to Congress the power to regulate it" The citizen'srights in commerce do not come from the Constitution (nor from thestate). They existed before the Constitution was written, and asChief Justice Marshall pointed out, the Constitution recognizesthat fact. If the right of man to trade is above the Constitution,and the Constitution empowers the Congress (a legislative body)only to 'regulate commerce', by no line of sound reasoning can theconclusion be reached that Congress can 'stop' commerce.

Citation from;

LOSING LIBERTY JUDICIALLY Prohibitory & Kindred Laws

Examined by Thomas James Norton of Chicago Bar 1928

STOP: Webster's New World Dictionary Second College Edition; [Stopcarries such a multitude of meanings depending upon the context inwhich it is used that we must turn to its SYNONYM 'discontinue', isapt as used in Gibbons vs Ogden; discontinue suggests thesuspension of some action that is a (cont)

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(cont) habitual practice, an 'occupation'. An occupation is avocation.

VOCATION: One's regular calling or business; the activity on whichone spends major portion of his time and out of which he makes hisliving. Black's 4th p 1745

[If the legislature has no power to delegate police power to anadministrative agency to 'stop' the right of the private individualto engage in or be employed in commercial activities, then theDepartment of Motor Vehicles and the magistrates sitting for theDepartment have, under color of Statutory law, have by deceit andcoercion, deliberate misdirection, misrepresentation of thestatutory law caused the individual to believe that theindividual's 'right' is a 'privilege' granted by a license toengage in commerce.

The Department of Motor Vehicles to which it leads the individualto believe he must be licensed, pay fees, taxes, include automotiverelated services and products; i.e. automobile car dealers, truckdealer, automobile paint shops, repair shops, et al. and person whodrive/chauffeur automobiles, trucks, taxi, et al. All of which arecommonly practiced traditional common law means of earning alivelihood recognized by the Constitution]

"A statute or ordinance must be constitutional not only in itsobjectives but also in the means of administration and enforcementprovided, which must conform to the limitations imposed by federal,national, and state's constitutions"

Vissering vs Annunzio, Illinois 2d 108

[It is not a 'privilege' to earn one's livelihood and (cont)

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(cont) seek happiness in commerce, it is a God Given absolute'right' which cannot be taken from the People by the People, forthe People have retained that 'right' under the Ninth Amendment ofthe United States Constitution and absent the crime no legislationcan stop it]

Ninth Amendment, United States Constitution:

"The enumeration in the Constitution, of certain rights, shall notbe construed to any or disparage retained by the People"

[The Constitution gives the power to lay and collect taxes byduties, impost, and excises, which are collected by the sale of taxstamps on some products such as tobacco and alcoholic beverages]

Article I, sec 8, para 1

[The Constitution grants the power to regulate Commerce withforeign Nations, and among the several states, with the IndianTribes]

Article I, sec 8, para 3

[But no where in the Constitution is there a grant of police powerby the Federal Government to itself or to the several States tostop, prohibit or condition the right to commerce by licensingabsent the criminal act or where there is no public safety endangerment]

"If a state statute purporting to have been enacted to protect thepublic health, the public morals, or the public safety, has no realor substantial relation to these objects or is a palpable invasionof the rights secure by fundamental (cont)

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(cont) law, it is the duty of the court to so adjudge and therebygive effect to the Constitution"Hennington vs Georgia, 1896, 41 L Ed 166

"The power of the legislative branch of government to regulatecommerce is the power to enact all appropriate legislation for its

protection or advancement; to adopt measures to promote its growthand insure its safety; to foster, protect, control, and restrain.(Virginia Rwy vs System, 84 F2d 641, 650) It is also the power toprescribe prohibitory regulations. US vs Darby, 312 US 100, 165"

[The power to regulate commerce does not extend to the power oflicensing the individual and thereby taking a 'right' and changingit to a 'privilege']

"To carry on interstate commerce is not a franchise or a privilegegranted by the state; it is a right which every citizen of theUnited States is entitled to exercise under the Constitution andlaws of the United States; and the accession (acquisition) of merecorporate facilities, as a matter of convenience in carrying ontheir business, cannot have the effect of depriving them of theright,........."Crutches vs Kentucky, 1891, 141 US 57, 35 L Ed 640

[So, the power to regulate commerce does not reach to theindividual by a need for license/permit/franchise as a license onlygrants the privilege of doing some act not permitted]

"Licenses are for the conduct of a business, profession,occupation, the exercise of such when they are a privilege.Licensing is in the nature of a special privilege entitling (cont)

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(cont) licensee to do something he would not be entitled to dowithout the license"San Francisco vs Liverpool 74 Cal 113

"The object of a license is to confer a right which does not existwithout it"Inter-City vs Harrison 157 SE 673, 676

"A license is merely permission to do that unlawful under commonlaw, or is made so by some ordinance or statute, including the oneauthorizing or requiring the license"22 Federal 701, 703 (D Oregon 1885)

"A right which is free and open to all is not the subject of alicense"

Chicago vs Collins 51 NE 907; or a tax. Freeburg vs Dawson 274 F240

"License tax is not a charge for enjoyment of privilege bestowed bystate. It is an unconstitutional attempt to regulate a privilegewhich exists apart from the state authority, when it is guaranteedthe people by the constitution"

Supra, COLLINS

"The use of common highways for travel and transportation is not amere privilege but a fundamental right:Escovedo vs California, 35 Cal2d 870

"We hold that the enforcement of the act against the defendant,would deprive him of his rights under the Federal Constitution"Pacific Tel vs Kuykendall 265 US 196

"The procuring of licenses may not be required as a (cont)

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(cont) means of prohibiting any vocation that is not injurious tothe public morals, offensive to the senses, or dangerous to thepublic health and safety; nor may such conditions be annexed totheir issuance that would tend to such prohibition"Whitwell, in re 98 Cal 73;Sonora vs Curtin 137 Cal 583

[If one has the 'right' to transport his own goods, property,guests then probably a few million people in business forthemselves and using a truck in their personal business areregistering and licensing and paying taxes where no legal statutoryneed exists to do so]

[Even if they are delivering merchandise which they have sold to acustomer, so long as they do not charge for delivering themerchandise, even though the customer has paid for the merchandise,signed for it, until such time as the customer takes actualpossession of the merchandise, the seller of the merchandise isstill the legal owner. Thus, absent the delivery charge, the selleris transporting his own property and does not come within thecommercial vehicle code]

[There are many people who own their trucks/rigs who then contractwith some company to haul for them. This obviously places them intothe position of performing for compensation by another party, andthus, subject to the supervision and regulations of the CommercialVehicle Code and the payment of license fees, road taxes and 'use'tax as they do not own the cargo hauled, they are not transportingprivate property]

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[Now, if that individual owning the truck/rig were to go forth andbuy for himself some goods, property, merchandise, etc., andthereby set himself as a 'middle man' between the original producerand some buyer, then he is hauling his own property. Understood?]

[Examples; buy ice cream from a creamery, sell it to the consumer;buy a farmer's crop, sell it to a wholesaler; buy bread from abakery, sell to stores or door to door to the consumer directly;thus, you are not a 'carrier' either public, private or common]

"So long as one uses his property for private purposes and does notdevote it to public use, the public has no interest in it and novoice in its control"Associate Pipe vs Rail Road Comm, 176 Cal 518

"Regulations, fees, taxes.......may not be applied to naturalperson using common highways as it is in derogation of common rightof public to use highways as an avenue upon which vehicles fortransportation of good, passengers, freight and traffic of allkinds may be freely moved, having due regard for rights of others,which this, or other provisions of statute, should be fairly,liberally construed to promote the effect the evident purpose forwhich it was intended, care should be exercised not to undulyextend its effect"Young vs Madison County 115 NW 23

"The constitution declares to be a public utility or service whichis subject to the control by the state, all

(cont)

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(cont) private persons that own, operate, control, or manage a lineor system for the transportation of people or property; thelegislature has defined such terms as 'common carrier', 'highwaycommon carrier' and 'public utility' but, the constitutional andstatutory definitions are construed as applying only to enterprisesin which property, in fact, is devoted to public use, They must notbe given the effect of an attempt to impress with a public use,property not so devoted"Allen vs Railroad Comm of California, 179 Cal 68; Cert denied 249US 601

"The state and its municipalities are prohibited from violatingsubstantive rights (Owen vs City 445 US 622 (1980) among which arethe right to travel free of license, fee, tax, within or interstate(Crandell vs Nevada 73 US 35) and it cannot by any power do thatwhich is expressly prohibited by any other power, that is,taxation, eminent domain,licensing, as a matter of law (US & Utahvs Daniels 22 P 159) nor may it do indirectly, that which is prohibited to it directly (Fairbanks vs US, 181 US 294,300)"

"Where a private occupational statute exists, as here, of which theintent is regulation of private commercial occupations, theparticular agency enforcing that private statute, shall not applyit by trickery and deceit, and threat and misrepresentation, topersons who are not noticed by the statute as persons regulated andtaxed, nor should it permit any party to do so, in violation of apersons right to stay out of a compelled contract, when he (cont)

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(cont) is not a person subject to the statute, unless clearly within its words" state vs Eberhard 179 P 853; 246 P2d 1011

VC s362. A 'house car' is a motor vehicle originally designed, orpermanently altered, and equipped for human habitation, or to whicha camper has been permanently attached.

VC s260 (b)............and house cars are not commercialvehicles............

[Does anyone reading this have a house car as defined above? Have

you register and paid license fee and taxes on it?]

ADDENDUM

13 cal Jur 3d Commerce Power

"To regulate commerce is to prescribe the conditions which it shallbe conducted, to determine how far it shall be free anduntrammeled, how it shall be burdened by duties and imposts, andhow far it shall be prohibited"

Zee Toys vs County of Los Angeles (1978) 85 CalApp3d 763

Aff'd 449 US 1119, 69 L ed2d 106, 101 S Ct 933

"The term 'commerce' as used in United States Constitution.....mayinclude any business activity carried on for purpose of procuringsubsistence or profit into which enter elements of bargain, sale,barter, exchange or traffic"

State vs Tagmi (1925) 195 Cal 522, 234 P 102

[None of the underscored offered to the general public for profit,earning a livelihood, unfettered by Constitution]

PAGE 144

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

HISTORY OF THE CASE

On June 22, 1989, defendant while traveling as a motorist upon thestreets and highways of the state in his private passenger vehicle,which had not been hired by any person by which defendantanticipated compensation; defendant was stopped by a deputy of theSan Bernardino County Sheriff's Department, and deputy withoutprobable cause asked to see defendant's certificate of registrationand chauffeur's license (referred in vehicle code as a driver'slicense).

Defendant informed the deputy that he was not engaged in thebusiness of transportation, a business privilege license for theoccupation of transportation offered to the public.

Contrary to the intent of Vehicle Code 1959, deputy then issued a

notice to appear citing section 16028 (a) VC and said act was undercolor of statutory law which did not apply to the defendant andunder color of authority of county government entity, sheriff'sdepartment, for purposes of an inquiry or demand of the defendant.

I

DEPUTY OF THE COUNTY SHERIFF'S DEPARTMENT WAS LEADING THEDEFENDANTTO BELIEVE THE HE HAD THE AUTHORITY TO REMAND THE DEFENDANT TOAPPEAR BEFORE A MUNICIPAL COURT FOR AN INQUIRY BY THE COURT ANDFURTHER IN ERROR AS HE FAILED TO FILE A VERIFIED COMPLAINT WITH THEDISTRICT ATTORNEY OF COUNTY OF SAN BERNARDINO, ALL TO THE HARM OFTHE DEFENDANT AND DEPRIVAL OF DUE PROCESS OF LAW

PAGE 145

Penal C. s146 b:

Every person who, with intent to lead another to believe that arequest or demand for information is being made by the state, acounty, or city, or other governmental entity, when such is not thecase, sends to such other person a written or printed form or othercommunication which reasonably appears to be such a request ordemand by such governmental entity, is guilty of a misdemeanor.

A notice to appear, issued under color of law by the Sheriff issuch a demand. It misleads the civilly cited person to believe thathe must appear before a court with jurisdiction for an arraignmentand testify and give information or enter a plea under criminalprosecution.

"Preliminary proceedings (notice to appear) do not invokejurisdiction of an inferior court"

Wells vs Justice Court, 5 Cal Rptr 204

"Preliminary proceedings are only intended as a basis for the issueof warrant"

71 CA 709

Notice, if used as a complaint under criminal procedure, must befiled with prosecuting attorney, not with court clerk to have legaleffect. As a complaint it must be supported by such evidence as

shows an offense has been committed and tenders it certain orprobable that it was committed by the person named or described inthe complaint"

Commonwealth vs Pick, 11 Pick 436

Because a police officer has no prosecutorial powers, a noticeconfers no jurisdiction to a trial court.

"Accused was neither arrested, charged, or otherwise (cont)

PAGE 146

(cont) subjected to a formal restraint by the issue of the noticeto appear"Overby vs Municipal Court, 1981, 121 CA3d 377, 378

ARG., if court rules that a certified notice is a proper complaint,it errs; Notice to appear fails as complaint because officer wasnot duly sworn at time of issue of certified notice and notverified by proper prosecuting attorney. Therefore, the complaintis null and void, has not legal binding in this court or in thiscase.

Federal, 34 US 969

[From the form of the notice (ticket) it is clear that it is notintended to fulfill the function of an information .

It is certainly not an 'allegation made to a magistrate' that aperson has been guilty of some designated crime, rather it is anotice to appear in a given court, at which time he will be chargedwith a specific violation.

A uniform traffic ticket is not a sufficient information to be usedas a pleading and held that absence of verified information was ajurisdictional defect which was not waived even by a guilty plea]People vs Scott, 3 NY2d 148

[A notice to appear, is used to compel an attendance to court bythreat of encagement if cited person will not sign notice "Withoutadmitting guilt, I promise to appear". However, pursuant tos40513(a) VC," a verified complaint (cont)

PAGE 147

(cont) must be filed with the court clerk by the district attorneyof the county. A plea cannot be entered without the :FILING OF COMPLAINT

(a) Whenever a written notice to appear has been prepared,delivered, and filed with the court,.......... copy of the noticewhen filed with a magistrate, in lieu of a verified complaint,shall constitute a complaint to which defendant may plead guilty ornolo contendre.

If, however, the defendant .........pleads other than guilty ornolo contendre to the offense charged, a complaint shall be filedwhich will conform with the provisions of Chapter 2, section 948 ofTitle 5 Part 2 of the penal code (s1427), and which shall be deemedan original complaint and thereafter proceedings shall be hadaccording to law, except that a defendant may, by an agreement inwriting, subscribed by him and filed with the court, waive thefiling of a verified complaint and elect that the prosecution mayproceed upon a written notice to appear."

II

A NOTICE TO APPEAR SIGNED UNDER DURESS AND COERCION BY THREAT OFENCAGEMENT IS COMPELLED SELF INCRIMINATION. AS THE SIGNING OF THENOTICE IS A COMPELLED PLEADING OF 'GUILTY' AND MUNICIPAL TRIALCOURTS ROUTINELY ADMIT THEY ACCEPT THE SIGNED NOTICE AS 'PROBATIVEEVIDENCE' OF A VIOLATION OF VEHICLE CODE EVEN THOUGH THE NOTICE ISNOT VERIFIED AND DOES NOT, ON ITS FACE, ALLEGE OR CHARGE AVIOLATION OF CODE WHEN IT MERELY CITES A SECTION OR SUBSECTION OFTHE CODE.

DEFENDANT SIGNED THE NOTICE UNDER THREAT OF INCARCERATION. THUS,IT IS A COMPELLED SELF INCRIMINATION BY ONE WHO HAS THEREBY MADE ASTATEMENT IN WRITING AND IT WILL BE USED IN A CRIMINAL PROSECUTIONOR CIVIL ACTION WHICH MAY BE BROUGHT AGAINST HIM

If this court rules that mere citations constitute and have affectof allegations or charge of crime and are complaints, then thiscourt rules in error.

(1) A complaint is in essence an affidavit setting forth thegrounds for the arrest. It must contain sworn information establishingprobable cause, whether in its main body or as a separate documentattached as an exhibit. In re Walters, 1975, 15 Cal3d 738, 748

Magistrate cannot accept mere conclusions in the complaint.

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"To engage in commerce is a right. By the taking of a license onedoes not then act on behalf of the State. In reality, on continuesto act for ones self and exercise the commerce right. Thus, if theAmendment against self incrimination are retained as acting inpersonal, rather than as agent representative of the State. Onedoes not lose, as does the agent representative entity, thepersonal privilege against self incrimination"

California vs Byers 402 US 424, 430-431, 29 Led2d 9

PAGE 149

Arthur Frank SanfordC/O 5894 Villa DriveRancho Cucamonga, Cal.Holder of Movable ChattelIdentified as AFS 2421

To:

Secretary of the State of California1230 "J" StreetSacramento, Cal

Treasurer of the State of California9800 South Sepulveda BlvdLos Angeles, Cal

Director of the California Department of Motor Vehicles;an Agency within the Business, Transportation and Housing Agency ofthe State of California

2451 First StreetSacramento, Cal

Notice of Withdrawal of Commercial Property from That Status toPersonal Movable Chattel;

To All Concerned Parties;

A Chevrolet Monza, known as an automobile, and with identificationnumber of AFS 2421, with such assigned identification numberlocated on left front passenger door beneath lock mechanism and topleft side of instrument pane and on the top left side of enginebulkhead has been appraised as having a value of $200.00

(1)Commercial Vehicle

260 (a) A 'commercial vehicle' is a vehicle of a type required tobe registered under this code used or maintained for thetransportation of persons for hire, compensation, or profit ordesigned, used, or maintained primarily for transportation ofproperty.

(b) Passenger vehicles which are not used for the transportation ofpersons for hire, compensation, or profit and housecars are notcommercial vehicles.

(2)Revenue & Taxation Code.

s10751. A license fee is hereby imposed for the privilege ofoperating upon the public highways in this state any vehicle of atype which is subject to registration under the Vehicle Code.

Be informed by this declaration, duly verified, that thisautomobile is now personal, movable chattel, and not subject toduties, impost fees, license fees, taxes, and is not driven oroperated as a commercial vehicle, nor is it registered as such withthe Department of Motor Vehicles.

This also constitutes my demand that the Department of (cont)

PAGE 150

(cont) Motor Vehicles be officially informed, in writing, by theState Treasurer and Secretary of State, each respectively, of theState of California, of the now declared status of this vehicleknown as an automobile, identified as AFS 2421 is movable personalchattel.

VERIFICATION

State of California, county of San Bernardino.

I, the undersigned, declare/certify, that I am the holder of a

chattel on personal movable property known as anautomobile/passenger vehicle, with an assessed value of $200.00,identified as AFS 2421.

I have read the Notice of Withdrawal of Commercial Property FromThat Status to Personal Movable Chattel. It is true to my ownknowledge, except as to matters which are therein stated on mypersonal information and belief, and as to those matters, I believethem to be true.

I declare and certify, under penalty of perjury under the laws ofthe State of California, that it is true and correct.

December 4, 1989

Arthur Frank SanfordDeclarant/Chattel Holder

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CALIFORNIA MOTOR VEHICLE LEGISLATION AS AMENDED 1961 TO THE DATE OF1991 IS VAGUE AND AMBIGUOUS

[Because of the manner in which it is written, a person withcompetent skill and knowledge finds an uncertainty of meaning ofexpressions used in the code which possess a doubleness of meaning;is patently ambiguous]

LATENT: "that is latent where the language employed is clear andintelligible and suggests but a single meaning, but some extrinsicfact or extraneous evidence creates a necessity for interpretationor a choice among two or more possible meanings,........"Black's4th p 105

[Because of its ambiguity, police officers and prosecutors for thePeople and magistrates of municipal tribunal sitting as hearingofficers in a ministerial capacity, permit it to be applied to allpersons who travel on the common highways for personal and privatebusiness, by automobile and or trucks, motor homes, whereby, aremisled, allowed to believe, that the vehicle code is enforceableagainst them by the Department of Motor Vehicles. The use of a mereadministrative civil notice to appear, and extra-judicialinstrument, is permissively used to bring any and all such persons

into a tribunal as though the Statute, Vehicle Code, operated as alaw of general nature and uniform in operation, when in fact it isprivate law which does not operate generally. Vehicle code operatesas general law only to the whole class of persons embraced in aclass found as licensees while engaged in some activity regulatedby Vehicle Code.]

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"The phrase 'general law' does not necessarily mean a law whichoperates upon all persons and things, since the word 'general'comes from 'genus', and relates to a whole 'genus', or kind, or, inother words, to a whole class or order, hence a law which effectsa class of persons, or things less than all, may be a general law."

Brooks vs Hyde (1869) Cal 366

[The ambiguity of Vehicle Code fails to provide a reasonable degreeof certainty as to the class of persons, by misdirection,doubleness of meaning, to clearly, implicitly, define the class,and thereby misleads the traveler on the common highways to believethat they are of the general class regulated by Vehicle Code]

"No one may be required at peril of life, liberty, or property tospeculate as to the meaning of statutes. All are entitled to beinformed as to what the State commands or forbids........'a statutewhich either forbids or requires the doing of an act in terms sovague that men of common intelligence must necessarily guess at itsmeaning and differ as to its application, violates the firstessential of due process of the law"Lanzetta vs New Jersey, 306 US 451, 453, 83 L ed 888;Connally vs General Construction 269 US 385, 391; 70 L Ed 322

"Such also is the law of the State of California"People vs McCaughan, 49 Cal2d 409, 414

[The uncertainty of the legislative intent of Vehicle (cont)

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(cont) Code 1959, and its repealed and re-enactments as of 1991,

is prominent on the face of the statute by its use of certain wordsand proper nouns which fail to be clearly definitive and misleadthe person of common intelligence to believe that the code isbinding on all who travel and use an automobile or truck forpersonal business and private business, pleasure, family usage]

"The required meaning, certainty and lack of ambiguity, may appearon the face of the questioned statute or from any demonstrablyestablished technical or common law meaning of the language inquestion"McCaughan, supra; Lorenson vs Sup Ct 35 Cal2d 49, 60

[This is not evidenced in vehicle code as certain nouns are playedwith by 'anglosizing' or using certain descriptive words withoutdefining same in Division 1. WORDS AND PHRASES DEFINED p 5 ofVehicle Code]

"Varied phraseology in statute should not lead to subtledistinctions in meaning when essential purposes is the same andgrammar should yield to legal, administrative intent"People vs Nowacki 40 NYS2d 131

[Ambiguity and doubleness of meaning lies within Vehicle Code inthe use of 'Driver' when formerly 'chauffeur' was used and driverdid not exist in the code]Driver,. VC s305

A 'driver' is a person who drives or is in physical control of avehicle.

VC. s310 then misleads by its ambiguity, uncertainty, (cont)

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(cont) and doubleness of meaning for a person of reasonableintelligence having read s305, when reading s310 then believes thatas a person driving a vehicle is that person required to possess aDriver's License.

VC s310

DRIVER'S LICENSE

"Driver's License is a valid license to drive the type of motorvehicle.......for which a person is licensed under thiscode......."

[Vagueness reigns and a reasonably intelligent person because hebelieves, or has been told to believe, that the Vehicle Code is a'general law' applicable to any person using an automobile or truckwhen she/he reads VC 12500(a), is further led to believe thatshe/he is that NO PERSON within that section of the code]

UNLAWFUL TO DRIVE UNLESS LICENSED

VC s12500(a)" NO PERSON shall drive a motor vehicle upon a highway,unless the person then holds a driver's license issued under thiscode.

(b) NO PERSON shall drive a motor vehicle............

(c) NO PERSON shall drive a motor vehicle."

Two tests which have been applied in determining vagueness arefound in:

Winters vs New York, 333 US 507, 524-525:

"(1) the 'men of common intelligence test; (A) A statute whicheither forbids or requires the doing of an act in terms so vaguethat men of common intelligence (cont)

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(cont) must guess at its meaning and differ as to its application,violates the first essential of due process of law."

(2) The 'subject matter of the legislation' test:

"Indefiniteness is not a quantitative concept.....It is itself anindefinite concept.....That which may appear to be too vague andeven meaningless as to one subject matter may be definite asanother subject matter of legislation permits; if the legislativepower to deal with the subject is not to be altogether denied"

DRIVER. Black's 4th p 585

"One employed in 'conducting' or 'operating' a motorvehicle....'conduct' v. to manage; direct; lead; have direction;carry on; regulate; 'do business'. Black's 4th p 367

[Prior to re-enactment of Vehicle Code 1961, there was no usage ofthe word 'driver', only 'chauffeur']

VC s250. "Chauffeur is a person who is employed by another for theprincipal purpose of driving a motor vehicle on the highways andreceives compensation therefor."

Statute 1961, Chap 1615, p 3452, July 12, 1961 effective September15, 1961, amended subds (a) (b) (c) s12500 to read Driver's Licenserequired and deleted subd (d) which read: "It is a misdemeanor forany person to drive a motor vehicle upon a highway as a 'chauffeur'unless he then holds a chauffeur's license duly issued under thiscode....."

[The legislative intent of this code was not changed bysubstituting descriptive title from 'chauffeur' to 'driver' (cont)

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(cont) as the role remained the same, employment, compensation.Only that person being compensated is code required]

[On the issue of type of vehicle required to be registered adoubleness exists between VC s260 (a) (b) (c), and VC s4000 (a),and Uniform Commercial Code which is the common law of the land asto commercial activities]

[Vehicle code fails to inform by its vagueness, uncertainty,indefiniteness, and doubleness, that the only intent of VehicleCode is to regulate the activity of commerce on the intra-statecommon highways of the state and by deceit, by failure to inform,where the need lies to inform, it allows the individual privatedriver/operator of private automobiles and trucks and motor homesthat she/he is a person required to register said vehicles. Aperson of common intelligence upon the reading of NO PERSON, is ledto believe that he must register and license and pay tax upon anon-commercially used private vehicle and thereby tricked intoasking for any privileges which attach to that registration whichare of no benefit to the private user of private vehicles]

REGISTRATION REQUIRED

VC 4000(a) "NO PERSON shall drive, move, or leave standing upon ahighway, or in an off-street public parking facility, any motorvehicle,......., unless it is registered and the appropriate feeshave been paid under this code....."

[However, no person is required to register any vehicle or consumergoods when she/he derives no benefit thereby]

REGISTRATION: "Registrant is one who register anything (cont)

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(cont) for the purpose of securing rights or privileges granted bylaw on the condition of the registration." Black's 4th p 1449

"Registration catalogues all persons with respect to an activity,or all things that fall within a certain classification"

Galvan vs Sup Ct 70 Cal2d 851

[A conflict lies within Vehicle Code between VC s260 and VCs4000(a) (1) and Uniform Commercial Code s9-109, and a trafficofficer or peace officer acting outside his scope and duty of peaceofficer must first make a determination as to whether a stoppedvehicle is of the type required to be registered and use tax iscurrently required and paid before acting to the harm of theindividual not required]

See, VC s4000(a) (1) supra page 6

COMMERCIAL VEHICLE

260(a) "A 'commercial vehicle' is a vehicle of a type required tobe registered under this code used or maintained for thistransportation of persons for hire, compensation, or profit ordesigned, used, or maintained primarily for the transportation ofproperty.

(b) Passenger vehicles which are not used for the transportation ofpersons for hire, compensation, or profit and house cars are notcommercial vehicles.

(c) Any van pool vehicle is not a commercial vehicle."

[First showing of conflict in the law and how it is improperlyapplied as a 'general law' to a class not within the class of the'general law' Statute Vehicle Code]

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[Uniform Commercial Code makes a clear determination of the type ofproperty which must be registered and taxed and the type ofproperty which cannot be required to be registered and taxed by thedefining of the property in question as either a 'businessequipment vehicle' or 'consumer goods'. Vehicle Code being acommercial code is bound by the Uniform Commercial Code]

"A state agency cannot require registration and payment of'business use tax' on 'consumer goods'. Automobile purchased forpersonal and family use was 'consumer goods' "

In re Rave 7 USS Rep Serv 258 (DC Conn Ref 1969)

Bank of Boston vs Jones 4 UCC Rep Serv 1021, 236 A2d 484

"Automobile owned by a person not in business is 'consumer goods'.Use of the vehicle by its owner of purposes of traveling to andfrom his employment is a personal, as opposed to business use, asthat term is used in Ucc s9-109. 1,. 14, the vehicle will beclassified as 'consumer goods' rather than equipment. Thephraseology of s109.(2), defining equipment as goods used or boughtfor use primarily in business seems to contemplate a distinctionbetween collateral automobile 'in business'and the mere use of thecollateral automobile for some commercial, economic, or incomeproducing purpose by one not engaged 'in business' "

In re Barnes 11 UCC Rep Serv 679 (Me Ref 1972)

[Thus, under UCC s9-109. 14, a vehicle not used for commercialactivities is 'consumer goods', and though a sales (cont)

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(cont) tax may be charged and collected at the time of its sale, itis not a type of vehicle required to be registered and 'use tax'paid of which the tab is the evidence of receipt of the tax]

[Remembering that statute Vehicle Code remains the same in intent,even though repealed and re-enacted, the code has alwaysspecifically exempted and operator, functioning in a privaterelationship, from the need to register vehicles of any type or topay a 'use tax' since the original Motor Vehicle Act of 1904]

"Use tax does not fall upon owner because he is owner, regardlessof the use or disposition he may make of the property, but isimposed on certain privileges of ownership. The use tax frames anexcise tax upon the privilege of using the property within thestate in a certain manner, and is a tax upon the enjoyment of thatwhich is purchased"

West's Ann Rev 8 Tax Code ss6203, 6204

Union Oil Co of California vs State Bd of Equalization, 386 P2d496,60 Cal2d 441, appeal dismissed, 84 S Ct 1629, 377 US 404, 12 L Ed2d495

PRIVILEGES. "A particular and peculiar benefit or advantage enjoyedby a person, or class, beyond the common advantages of othercitizens. A right, power, franchise, or immunity held by a personor class, against or beyond the course of law"

Colonial Motor Coach vs City of Oswego 215 NYS 159, 163;

Bank of Commerce vs Senter 260 SW 144, 147

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[OPERATOR used within Vehicle Code is not defined in Division 1,WORDS AND PHRASES DEFINED, p 5 and Black's 4th does not define thenoun 'operator' but, a clear definition of 'operator' os found incase law and statutory vehicle codes antecedent to 1991]

"To operate any motor vehicle proscribes illegal operation of'transportation business' rather than physical operation of thevehicle itself. Statute imposing a penalty for operation of motor

vehicle as carrier without first obtaining a license should bestrictly construed 'in favor' of one against whom imposition ofpenalty is sought."

Kramer vs Haley 439 P2d, 1968, 573, 574

Thus; VC s10: Continuation of Existing law

2. The provisions of this code, insofar as they are substantiallythe same as existing provisions relating to the same subjectmatter, shall be construed as restatements and, continuationsthereof and not as new enactments.

Statutes, 1923, page 706

(1) The obvious and only purpose of the act of the legislatureimposing a fee for the transportation of persons or property forhire and compensation upon the public streets, roads, highways, inthe state by motor vehicles was to provide a revenue and that suchrevenue was to be obtained by the imposition of a license orprivilege tax on the business of operating a motor vehicle forhire.

(2)The Act of 1923, a Revenue Measure: the act of the (cont)

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(cont) legislature, page 706, is not a police measure in any sense,it provides for a license tax for revenue purposes only.

(4) Operators Transporting Own Property: The fact that those whooperate motor vehicles for the transportation of person andproperty for hire enjoy a different or more extensive use of thepublic highways for the transportation of their own than those whouse said public highways for the transportation of their wonproperty constitutes a natural distinction and full justificationfor the classification of the latter operators among those exemptedfrom the license tax provided by the act.

[So, obviously. of an individual uses his automobile or truck fortransportation of family or his property, he cannot be brought intothat special class of persons for not having registered andlicensed and paid a use tax, by any traffic officer/peace officer

of the state or local governmental corporate municipality, nopolice power attaches to the statute and so none can be delegatedto another governmental agency, either state, county, city policeagency]

Statutes, 1937, Vehicle Code, Chapter 27

(a) The term 'operator' shall include all persons engaging in thetransportation of persons or property for hire or compensation byor upon motor vehicles upon any highway in this State, eitherdirectly or indirectly, but shall not mean or include thefollowing:

(1) Any person transporting his own property in his vehicle.

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Statutes, 1941, s9701, page 592

Every operator of a motor vehicle within the State who transportsor desire to transport for compensation or hire persons or propertyupon any highway within this State, shall apply to the board for alicense to operate motor vehicles for the transportation of personsor property for hire/compensation.

OPERATOR under this statute does not include s 9603(a); any persontransporting his own property in a motor vehicle owned and operatedby him unless he makes a specific charge for the transportation.

[Read KRAMER, supra, page 10]

"The elementary doctrine that the constitutionality of alegislative act is open to attack only by persons whose rights areaffected thereby, applies to statute relating to administrativeagencies, the validity of which may not be called into question inthe absence of a showing of substantial harm, actual or impending,to a legally protected interest directly resulting from theenforcement of the statute" Board of Trade vs Olson, 262 US 1;29 ALR2d 1051

"Where a statute applies to different classes of persons, acontestant may raise questions only as to matters proper to hisclass"

Garden Courts vs Harnett, 65 A2d 231

[If a traffic officer/peace officer writes a Civil extra-judicialNotice to Appear, administrative action in nature, and you are notof the class clearly defined in the statute, (cont)

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(cont) and he does not clearly state that you are a person withinthe special class named in the statute, or he is a CHiP acting onInter state highway, or hi is a peace officer for a local corporatemunicipality without police power to act for a state statute, aripe cause of action lies for malicious issuance of process, abuseof process and false arrest and false imprisonment will prevail fora plaintiff]

"Taxing and licensing statutes are not enacted as 'positive law'which consists of those statutes enacted by legislative bodies inpursuance to authority or mandate granted in United States or Californiaconstitutions. Such tax and licensing statutes are private, equity,maritime law contracts, which are entered voluntarily by privatepersons with the private corporate state"Escovedo vs State of California, 35 Cal2d 870

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THE TRUE NATURE OF LICENSES, MALEFACTIONS OR BENEFACTIONS?

[At common law the private individual has the right and theConstitutions protect it, to travel for personal business, personalpleasure, personal transportation, family business, upon the publichighways inter-state, afoot, on horseback, by driving a team ofhorses, by driving a wheeled vehicle, a motor propelled conveyance,or whatever is the current mode of the day which suits theindividual's purpose or choice. While doing such the individualcannot be taxed/licensed/regulated without his voluntary assent]

[That right exists and cannot be denied or excised by a legislativeact which is in nature a fiat when the public has no interest, orno interest by a governmental administrative agency, exists by somerelationship between the individual and the Corporate State of

California by and through the administrative agency functioning forthe Corporate State]

[To use a motor propelled automobile/truck for private purposescannot be declared a privilege of those who would exercise theright when the individual does not knowingly, voluntarily, ask thatthe right be converted to a privilege because of some benefitswhich will accrue by the granting of the public license]

[Licenses are contracts. Are of two types, private, and public.Private contracts are between two or more private individualswherein the parties to the contract obtain mutualbenefits/privileges and mutual power to enforce the contract whenthere is a failure to perform the contract]

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[Public contracts/licenses permit an individual, who by becoming anartificial person by the license with the particular agency for theCorporate State, may practice or perform or engage in someprofession or business which would otherwise be unlawful, orlicenses may be used to regulate a common law right]

"The courts cannot be unaware that the licensing power, resting onthe proposition that all activities of a certain kind in a certainendeavor are enjoined until authorized, necessarily places upon theindividual the burden of affirmatively proving that he proposes todo should be permitted. In a sense, therefore, licensing by itsvery nature is repugnant to the philosophy behind the principlethat the individual is innocent until the State proves him guilty"

37 Georgia Law Journal 73, 74 (1948)

[Here the intent is to show how, to considerable extent, themisapplication of the true character of a license by the Departmentof Motor Vehicles under it Vehicle Code, by deceit and misdirectionand misinformation and the failure to inform as to the true intentof private statutory code, has led the individual motorist tobelieve he must have the licensed relationship with the CorporateState]

[By the individual ceding the right for a privilege, thatindividual forfeits/loses the constitutional protection of the

Fourteenth Amendment which imposes limitations upon the State bythe Federal Constitution and the Bill of Rights, the first tenamendments of the National Constitution of (cont)

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(cont) the United States of America, which protect the individualfrom the aberrations of a 'public license' by the taking of thelicense and using it]

"The object of a license is to confer a right which does not exist"

127 Indiana 109;

26 NE 560, 561 (1891);

194 So 569 (1940)

" A license is merely a permission to do what is unlawful undercommon law, or is made so by some statute or ordinance, includingthe one authorizing or requiring the license"

22 Fed 701, 703 (1885)

[Reminder, the common law right to travel cannot be impeded nor theindividual's right to engage in commercial trafficking upon thepublic's common highways by legislation]

[The earliest expression of the concept of mobility as being alegally protected right has always been protected by andconsistently by the United States Supreme Court]

[Denial of mobility because one has to have a Driver's License orfails to pay a tax for the privilege is at issue]

Justice Washington in Corfield vs Coryll 4 Wash CC 380, FederalCase No 3230, (1823) enumerated the privileges and immunities ofCitizens of the states (US Const Art IV, s2) as including 'theright of a citizen of one state to pass through, or reside in anyother state.'

Article IV s2

The Citizens of each State shall be entitled to all the (cont)

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(cont) Privileges and Immunities of Citizens in the severalStates.

In Crandall vs Nevada 73 US (6 Wallace) 35 (1886) it struck downthe statute (requiring the payment of taxes when traveling into orout of the state of Nevada by travelers) on the ground that thestatute violated the Constitution of the United States as the stateaction violated a personal privilege impliedly granted by theConstitution.

[In that ruling the court did not cite Art IV s2, but it isnoteworthy that the decision was handed down before theratification of the Fourteenth Amendment, yet without theFourteenth Amendment the state action was forbidden from itsrestriction of freedom/mobility/locomotion to move from one placeto another]

[Remember, the individual has been led to believe that there is noright to mobility by the use of an automobile or truck unless onehas a Driver's License]

"The right to travel is a part of the 'liberty' of which a citizencannot be deprived without due process of law under the FifthAmendment"Kent vs Dulles 357 US 116 (1958);

Reaffirmed in Zemel vs Rusk 33 US 1

"Where activities or enjoyment, natural and often necessary to thewell being of an American citizen, such as travel, are involved, wewill construe narrowly all delegated powers that curtail or dilutethem.....to repeat, we deal here with a constitutional right of thecitizen"

Edwards vs California 314 160 (1941)

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[The enactment by the legislature of its Statute 1959 Vehicle Codewhereby a person who travels in commerce for purposes oftrafficking and using the public highways must be licenses isfaulty as it assumes the right to engage in commerce by theindividual as a means of earning a livelihood may be regulated andtaxed as a privilege]

[As the individual cannot be required to have a license to earn alivelihood which is a traditional common law right, it cannotrequire the private individual not using the highways for theearning of a livelihood to be licensed and taxed for enjoying theright by naming it a 'privilege'.]

[Obviously, this is a misapplication of the concept of licensingwhere it is used to regulate the individual's common law right.There is no grant of a 'privilege/benefaction'of any kind in apublic license. The Department of Motor Vehicles by its abuse ofthe statute by causing the individual to believe a Driver's Licenseis a privilege and the only means by which the individual may usethe common public highways and so the general public in itsignorance of the statutory law and its privileged right believesthat they must apply for and have a 'public license' while enjoyingits privileged right]

[The individual must be made aware of the principles of the 'publiclicense/malefactions' are not the principles of a 'privatelicense/benefaction']"A private license is technically an authority given to do someact, or series of acts, on the land of another with (cont)

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(cont) out the passing of any estate in the land. Licenses amountto nothing more than an excuse for the act. which would otherwisebe a trespass"

Cook vs Stearn 11 Mass 533, 537 (1814)

[If a private license is between private persons then a publiclicense is one granted by some division/agency/department of theCorporate State to an individual thus, converting that individualto a license/contractual relationship with the Corporate State, abusiness entity]

[A question arises in the mind of the author as to just how, underthe National Constitution, was it possible for the NationalGovernment to create a Corporate Entity known as the FederalGovernment. My conjecture is that the Congress withoutconstitutional authority simply created such a Corporation. So,such a Corporation is a de facto corporation and it in turn createsde facto corporations which do business for the Federal CorporateGovernment. Black's 4th states that de facto is an office,position, or "status existing under a mere claim or color ofright" Here is an interesting definition of De Facto Governmentwhich if the above is true then the Federal Government and theState of California are De Facto Governments and exist because noone challenges their colorable authority. "One that maintainsitself by a display of force against the will of the rightful legalgovernment and is successful, at least temporarily, in overturningthe institutions of the rightful legal government by setting up itsown in lieu thereof"]

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[If the above interpretation, by the author is true, then theDepartment of Motor Vehicles is a de facto department within the defacto Business, Transportation & Housing Agency created by the DeFacto State of California]

[The claim of the Department of Motor Vehicles that a motorist mustbe licensed is not the granting of a privilege as the motorist andindividual engaged in earning a livelihood already has theprivileged right to use the common public highways without the needfor a license. Thus, it is actually a restraint upon activitiesrecognized as privileged right]

"A license law assumes an illegality of an action, and denouncesand penalizes those who pursue it without protecting themselvesfrom prosecution by the procuring of the unneeded license"

37 Georgia Law Journal 73, 74

[The conflict here lies in 'form' as against 'substance' as inform, a license is a permission of action that would otherwise beunlawful; in substance, a license is a limitation of an actionwhich would otherwise be lawful. So, the purpose of any license,private or public is to grant a 'gift'. The gift restricts the

activity of those without the license]

[So, the true purpose, when private, is to control and regulate themanner in which the otherwise unlawful act is conducted, thuscontrolling the interest of the private person. In the case of thepublic license controlling the public's interest & right (If thereis a public interest)

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[So, the statute and its code administered by the Department ofMotor Vehicles, by the Driver's License is licensing a 'right' andnaming it a 'privilege', but not as a 'privilege' under theConstitution's rights/privileges/immunities]

[Thus, does the Department of Motor Vehicles by deceit and failureto inform where the need exists to inform as to the true nature ofthe Vehicle Code, seemingly take a right and convert it, in themind of the individual motorist, to a privilege]

"A license when granting a privilege, may not, as the terms to itspossession, impose conditions which require the abandonment ofconstitutional rights"

271 US 583, 589 (1924)257 US 529, 532 (1922)

"The acceptance of a license, in what ever form, will not imposeupon the licensee an obligation to respect or to comply with anyprovisions of the statute or with the regulations prescribed thatare repugnant to the Constitution of the United States"

180 US 452 (1901); 333 US 426; 606 Cal (1936); 56 P2d 602 Collier& Wallis

[Question. Analogous. If a robber steals part of your money andleaves the rest, have you been given a 'gift'?]

[Recap, Activities when licensed but, which are rights by commonlaw or natural law, are intended to restrict the liberty (cont)

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(cont) of enjoying those rights/liberties in the name of revenueand control of the individual as to his/her whereabouts by therecord keeping in todays computer age]

"The 'liberty' guaranteed by the constitution must be interpretedin the light of the common law, the principles and history of whichwere familiar and known to the framers of the constitution. thisliberty denotes the 'right' of the individual to engage in any ofthe common occupations of life, to locomote, and generally enjoythose rights long recognized at common law as essential to theorderly pursuit of happiness by free men"

Meyer vs Nebraska 262 US 390, 399US vs Wong Kim Ark 169 US 649, 654

"No thing is gained in the argument by calling it 'police power'Henderson vs City of New York 92 US 259, 271 (1875)Nebbie vs New York 291 US 501 (1934)

[Repeat, the licensing of motorist/individuals engaged in privatebusiness using the common highways dedicated to the use of thegeneral public is a method of restricting activities longrecognized by the colonies before the formation of the states andsubsequently recognized by the newly created states by theirelected We, the People when they wrote the Constitution 'for' theUnited States, a Republic. A Republic recognized in theConstitution 'of' the United States and the People therein]

[The de facto corporate created license method by the (cont)

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(cont) legislature sitting assembled for the Corporate State ofCalifornia by the creation of the Department of Motor Vehiclesfound within the Business, Transportation and Housing Agency is astrict method of controlling and taxing in that it substitutesadministrative agency supervision, which is continuous by a case bycase method of control under quasi criminal prosecution. But, whencontrol is by licensing and administrative enforcement suchenforcement is not tried in criminal courts at law but, is bysummary procedure which is maritime/admiralty courts sitting for

the Department of Motor Vehicles as it is pursued under a civilcode which is private and by-passes the usual criminal procedureand uses civil, non-judicial Notices to Appear under color ofcriminal prosecution]

"If a license is a true privilege, so long as the legislationmaking the privilege available to the public generally or to'certain class of persons', the individual could have the right toreceive and the right to enjoy the use of the license in conformitywith the requirements of the legislation and under theconstitutional protection against unjustifiable administrativeaction, in the case of any other of his constitutional rights"Tutan vs US 270 US 568, 578 (1927)

[Bottom line. Whether general public or certain class of persons,any action under Vehicle Code, whether licensee or non-licensee, ifnot engaged in licensed activity, is an 'unjustifiableadministrative action']

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ADDENDUM

NATURE OF STATUTE, VEHICLE CODE

[An individual not engaged in trafficking is not a class of personswithin Vehicle Code; an individual licensed but not engaged intrafficking is not a person within the Vehicle Code, subject to itsenforcement scheme]

[Thus, where there is no public statute which regulatesindividuals, licensed or unlicensed, they do not come withinjurisdiction of Department of Motor Vehicles as their jurisdictionis only to private privilege statute]

58 Cal Jur2d Statutes s8

The Code of Civil Procedure provides that all statutes are publicor private and defines private statute as one that concerns onlydesignated individuals and affects only their private rights. Allother statutes, including those creating or affecting corporations,are public statutes (CCP s1898) A valid private act is asconclusive within its particular scope as is a public statute (Peo

ex rel McLane vs Bond 10 Cal 563) and the courts are as much boundto observe the one as the other (Peo vs Oakland 118 Cal 234)

A general or public act affects the whole community, whereas aprivate act affects only particular persons or private concerns (Exparte Burke 59 Cal 6) a selected class or particular object (Earlevs Bd Ed 55 Cal 489; Smith vs McDermott 93 Cal 421)

The constitutional declaration vesting legislative (cont)

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(cont) power in legislature by Constitution Art IV s1, is notconsidered a grant of power, rather it is a restriction therebyrendering the legislature competent to exercise all powers notforbidden by state or federal constitutions (Peo vs Coleman 4 Cal46; Peo vs McCreery 34 Cal 432)

The legislature may command or merely permit a thing to be done(Peo vs ex rel Blanding vs Burr 13 Cal 343; Peo vs Lynch 51 Cal 15)but it may not violate Constitutional prohibits or guarantees(Lockard vs Los Angeles 33 Cal2d 553; Cert den 337 US 939) ORAUTHORIZE OTHERS TO DO SO.

"When private individuals or groups are endowed by state with poweror functions governmental in nature, they become agencies orinstrumentalities of the state and subject to its constitutionallimitations"San Francisco vs Johnson 3 Cal3d 937; cert denied 401 US 1012

[Recall, governmental agency of California which is a Departmentwith the Business, Transportation & Housing Agency is composed ofprivate individuals and Vehicle Code is a private statute, so wheredo you fit in the scheme?]

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VEHICLE CODE SINCE 1905 IS A BUSINESS STATUTE

[All occupations, trades, professions, businesses, and privateproperty dedicated to the benefit of the public, when without the

traditional recognized common law right to pursue as a livelihoodare subject to the police power of the State]Munn vs Illinois, 94 US 113 (1876)

FACTS: Several grain warehousemen in Chicago were sued by the stateof Illinois for failing to comply with the state law establishingmaximum rates for the storage of grain. The warehousemen claimedthat this law was repugnant to the part of the 14th amendment whichordains that no state shall deprive 'any person of life, liberty orproperty without due process of law, nor deny any person within itsjurisdiction the equal protection of the laws'.

ISSUE: Can a state constitutionally regulate the use, or even thefee for the use, of private property in that state?

DECISION: Yes.

REASONS: Waite, C.j. Two hundred years before this case, Lord ChiefJustice Hale stated in his treatise, De Protibus Maris, 1 Harg. L.Tr., 78, that when private property is affected with a publicinterest it ceases to be purely private. Property becomes clothedwith a public interest when used in a way to make it of publicconsequence and affect the community at large. When one devotes hisproperty to such a use, he must submit to be controlled by thepublic for the common good. Of course, he may withdraw the use, butso long as he maintains it, he must submit to public control forthe public good. The vast storage of grain falls into thiscategory. If the proprietor of a hackney can be licensed andcontrolled, so can warehousemen. "We know that this is a powerwhich may be abused; but that is no argument against its existence.For protection against abuses by Legislatures, the people mustresort to the polls, not to the courts......"

[The use of the word 'Vehicle' in the statute 'Vehicle Code' isintentional deceit intended to mislead the traveling public,deceptive advertising notice to the public, causing them to believethat it is a statute binding on them as (cont)

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(cont) vehicle users. In actuality the Vehicle Code is to regulateand enforce the safe operation of commercial motor vehiclesoperating for hire to the public, for profit, for gain, for

compensation, to the general public on an indifferent basis,transporting goods, property, and regulating drivers, chauffeurs ofpassenger vehicles uses to transport people, for hire, for profit,for gain, for compensation, on an indifferent basis]

[Thus, Vehicle Code 'not' being general law, a law which affectsthe community at large, and does not omit any subject and operatesequally upon all of a group, is a private business statute whichembraces a class of subjects well defined within the context of thestatute. Thus, it does not embrace the general public privatelytraveling upon the highways of the State by force of statutory law,does not have the force of law upon the general public]

[Vehicle Code is mere private business civil statute enacted forregulating special class of persons in the business of operating ascommon/public carriers for hire to the general public on anindifferent basis for hire, for profit, gain and compensation]

Beginning with the Motor Vehicle Act of 1905, and continuing to thepresent time, that intent has remained constant, up to andincluding the re-enactment of the code in 1959.

Statutes at Large, 1959, Chapter 3, page 1523; Approved byGovernor, February 25, 1959' filed with Secretary of State,February 25, 1959; THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACTAS FOLLOWS: An act to repeal and re-enact the VehicleCode...........(cont)

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(cont)

1. This act shall be known as the Vehicle Code.

2. The provisions of this code, insofar as they are substantiallythe same as existing provisions relating to the same subjectmatter, shall be construed as restatements and continuationsthereof and not new enactments.

[To repeal (to rescind, abrogate, recall, annul, reverse) a statuteor law, and then to re-enact that law or statute with amendments ornew definitions or add to the law or statute, with continuedobeyance of the provisions of constitutionally protected common law

rights, does not change the intent of the statute. If it was theintent of the body of the legislature to write new statute, itwould not have re-enacted existing statute, it would have enactednew written statute with new intent therein]

[Does a part time driver chauffeur need a license?]

At the time of the re-enactment of Vehicle Code of 1959, s250defined 'chauffeur' as; "Chauffeur is a person who is employed byanother for the principle purpose of driving a motor vehicle on thehighways and receives compensation therefor"

[At the time of the enactment of Motor Vehicle Act of 1905, it wasthe clear intent to regulate those persons who drove forcompensation and so those persons who wished to chauffeur forcompensation had to apply for and be granted and issued a 'license'in order to earn a livelihood on the highways of the state aschauffeurs]

When VC s250 was repealed, 1961, amended, Chapter 1615, page 3452,July 12, 1961, filed July 13, 1961, it simply substituted 'driver'for 'chauffeur'

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[That new section, 350 VC, did not alter/change the intent ofVehicle Code, driver and chauffeur simply became synonymous, theprivate traveler driving a passenger vehicle had not been convertedby the amendment to chauffeur, but remained a private travelerstill without the need to possess a license, either as chauffeur ordriver]

[It was a deliberate act to obfuscate by semantics and therebycause traveling persons driving their passenger vehicles forprivate business and pleasure and transportation to believe that heis required to have a driver's license, that the mere act ofdriving for personal travel, business, was a privilege, althoughthe common law right remained unaffected by the trickery anddeceit]

CALIFORNIA STATUTES AT LARGE1905 Motor Vehicle Act, Chapter 6121913 Motor Vehicle Act, Chapter 326

1915 Vehicle Act, Chapter 1881923 California Vehicle Act, Chapter 2661935 Vehicle Code, Chapter 271959 Vehicle Code, Chapter 3

The state legislature, either by itself or by delegation of itspower to municipal corporations, or other subdivisions or agencies,in its discretion, may impose a license, privilege, occupation,sales, use, or other excise tax on any or all lawful occupations,trades, professions, businesses, callings, or subjects, exceptwhere constitutional provisions, federal and state, consideredgenerally, limit the power to exact a license or to impose a tax,except in so far as its power in this respect is limited byconstitution or statute. State vs Kievman, 165, A 601;Shreveport vs Stringfellow, 68 So 951

When a statute law, regulation is adopted affecting the publichighway, the question to be resolved is whether the regulation isreasonable exercise of state's power to regulate highways, orwhether it is an attempt on the part of the state to abridgefundamental constitutional(cont)

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(cont) rights in the guise of highway regulation.

62 Cal App 3d 566

[The right to private travel for pleasure, business ortransportation upon the highways does not come within the 'commerceclause' of state or federal constitutions where by it can besubject to license, fee, tax]

Agency has no authority to enforce any licensee unless he is actingfor compensation, such an act is highly penal in its nature, andshould not be construed to include anything which is not embracedwithin its terms. There is no charge in the complaint, no evidenceto prove the charge if it were in the complaint that accused wasemployed for compensation...

Schomig vs Keiser, 189 CAL 596

It is basic in our law that an administrative agency may only actwithin the area of 'jurisdiction' marked out for it by law. If anindividual does not come within the coverage of the particularagency's power to take any action which affects him.

Endicott vs Perkins, 317 US 501 (1943)

Engaging in a regulated activity, without license is an offense, ifthe statute so provides, unless the statute specifies the receiptor expectation of compensation as an element of the offense, inwhich case there is no offense if that condition is not fulfilled

People vs Vermillion (1916) 30 Cal App 417, 418

Where a private statute exists (Vehicle Code of 1959) of which theintent is regulation of commercial common carriers, the particularagency enforcing that private statute, shall not apply it bytrickery and deceit, to persons who are not noticed by the statuteas persons regulated and taxed, not should it permit any party todo so in violation of a persons right to stay out of compelledlicense/contract, when he is not a person subject to the statute,unless clearly within its words.

State vs Eberhart, 179 P 853; 246 P2d 1011

Where a statute is enacted for the benefit of one class of personsit is not for courts to say that it was also meant to embrace andprotect other and additional persons and situations; that statutewhich defines separate classes on whom special benefits areconferred, the pro- (cont)

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(cont) -visions relating to a single class should be regarded asapplying to that class alone, unless the language clearly showintent to have larger or more general application; that statutewhich imposes obligation in derogation of the common law, andeffects substantial rights must be strictly construed and cannot beextended by implication to include persons who do not come withinthe terms.

Kurtz vs Capital, 61 A2d 4l70

Even if defendant was a licensee, a 'licensing agency' has noauthority to proceed against a licensee, not any party sitting'ministerially' for the agency, for acts done outside the activityin which he is licensed.

King vs Bd Med Exam, 65 CA2d 644

An action by agency, whether directly or through a court sittingadministerially as hearing officer, must be clearly defined in thestatute before it has subject matter jurisdiction, without suchjurisdiction of the licensee, all acts of the agency, by itsemployees, agents, hearing officers, are null and void.

Doolan vs Carr, 125 US 618; City vs Pearson, 181 Cal 640

Statutes may not be given a meaning which would be restrictive ofpersonal liberty unless the language thereof is clear and explicitand permits no other reasonable interpretation. In interpreting astatute which is ambiguous, and is subject to two or morereasonable interpretations, must adopt that construction which isfavorable to the individual and tends to least interfere with or tocircumscribe or delimit personal liberty.

State vs Mitchell, 7 SE2d 567

Defendant bases a defense on the fact that statute is beingunconstitutionally applied to him as an individual not required tobe a licensee of the agency under the statute.

San Mateo County vs Palomar Holdings, 1962, 208 CA2d 194

No Statutory duty lies to apply for, or to possess a driver'slicense for personal travel and transportation as defendant is notwithin the class of persons for whose benefit or protection thestatute was enacted.

Routh vs Quinn, 20 Cal2d 488

DEPARTMENT OF MOTOR VEHICLES HAS NO DISCRETION TO PRESUME TO ALTERCOMMON LAW AND APPLY COMMERCE VEHICLE CODE OUTSIDE ITS MANDATEDSTATUTORY AUTHORITY TO MERE PRIVATE TRAVELERS WHEN INFORMED BYPRIVATE TRAVELER

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Where fundamental vested rights are involved, courts have the dutyto scrutinize the issue before them under independent judgmenttest, rather than mere substantial evidence, or rationale basistest, as a matter of law.Bixby vs Pierno, 4 C3d 130

Statutes are not presumed to alter common law except to the extentthat they expressly so provide. "The civil code was not designed toembody the whole law of private and civil relations, rights, andduties; it is incomplete and partial; and except in those instanceswhere its language is clearly and unequivocally discloses anintention to depart from, alter, or abrogate the common law ruleconcerning a particular subject matter, a section of the codepurporting to embody such doctrine or rule will be construed in thelight of common law decisions on the same subject"(Estate of Elizalde, 182 Cal 427, 433)

The rule is stated as follows in 45 California Juris-prudence 2d,s116, page 625:

"Statutes must be given a reasonable and common sense constructionin accordance with the apparent purpose and intention of the lawmakers - one that is practical policy rather than to mischief orabsurdity"

The court should consider the consequences that might flow from aparticular interpretation (Estate of Ryan, 21 Cal 2d 498) and wherethe language is susceptible of two different constructions generalphrasing must yield to an intent which is apparent from the actitself. (Pritchard vs Sully Miller, 178 CA2d 246, 256; Farnworth vsNevada Cal., 188 CA2d 382, 387; Blumenthal vs Larson, 79 CA 726)

Superior Court as intermediate appellate court is bound by the law,both statutory and case, and as it existed at the time of thedecision, further modifications, if any, are required to come fromthe legislature or re-interpretations by highest appellate courts.Gustin vs Williams, (1967) 255 CA2d Supp 929

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FOR ANY GOVERNMENT AGENCY TO STEAL AWAY COMMON LAW RIGHT OF

LIBERTY, RIGHT TO TRAVEL FREE OF REGULATION, TAX AND FEE, WHICH ISPROTECTED BY ORGANIC LAW AND INTERNATIONAL TREATY, AND TREATIESARESUPERIOR TO ALL LEGISLATIVE STATE ACTS; PRIVATE PROPERTY BYLICENSING AND FEE AND TAX, IS THE UNLAWFUL TAKING OF PRIVATEPROPERTY AS IT TAKES AWAY TITLES OF ABSOLUTE OWNERSHIP. WHEN IT ISDONE BY INDUCING THE INDIVIDUAL TO CONTRACT BY MISINFORMATION,THREAT, EITHER DIRECT OR IMPLIED, BY THE FAILURE TO INFORM WHERETHE NEED TO INFORM EXISTS, IT IS A CRIMINAL TRESPASS OF COMMON LAWRIGHTS OF FREEDOM AND A TAKING OF PRIVATE PROPERTY WITHOUTCOMPENSATION FROM THE INDIVIDUAL AND A GROUND FOR AN ACTIONAT LAW WILL LIE.

"Persons lawfully within the United States are entitled to use thepublic highways and have the right to free passage thereon" (85CA2d 497)

Constitutional Law, 11 Am Jur s329

"Personal liberty largely consists of the right of locomotion, togo where and when one pleases, only so far restrained as the rightsof others may make it necessary for the welfare of all othercitizens" (Williams vs Fears, 179 US 270; Pinkerton vs Verberg, 78Mich. 573)

"The right of a citizen to travel upon the public highways and totransport his property thereon, by horse drawn carriage, wagon,automobile, is not a mere privilege which may be permitted orprohibited at will, but common right which he has under the rightto life, liberty and the pursuit of happiness. Under thisconstitutional guarantee one may, therefore, under normalconditions, travel at this inclination along the publichighways or in public places, and while conducting himself in anorderly and decent manner neither interfering with nor disturbinganother's rights, he will be protected, not only in his person, butin his safe conduct" (Thompson vs Smith, 155 Va 367)

NATURE OF LICENSES AS MALEFACTIONS

The primary intention of licensing, a right and then naming it a'privilege', really, is not prohibition, but regulation of the'right'. This regulation of the 'right' is made effective by aform, general denial of the 'right' and renaming it a 'privilege',which is then made available to the individual by an administrativeact of approval, a license/permit/consent. Thus, does a 'right'

become a 'privilege', but calling something a gift/privilegecannot make it one. When a robber takes part of a man's money(right to property), but leaves the rest, the victim certainly doesnot feel that he has been given anything.

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A license which regulates an activity, which are rights by commonlaw or 'natural law' are intended to restrict the liberty andenjoyment of private property in the name of revenue andregulation.

Thus, it is very clear that the requirement of a license is notintended as a 'privilege' , but as a common restraint uponactivities authorized by the common law for the intent of a licensein to pursue that regulated activity which otherwise is unlawful tothe individual without the license.

Here lies a conflict. The license is the permission to perform anillegal activity, in for, but in substance the license is alimitation of a action/activity which otherwise is lawful. So, thepurpose of the 'gift of privilege' is to restrict the rightfulactivity of the licensee and to prohibit the lawful activities, ofthose without the 'gift', activities already existing at commonlaw.

"A license is in the nature of special privilege entitling licenseeto do something he would not be entitled to do without the license"(San Francisco vs Liverpool, 74 Cal 113)

"Power of the legislature to impose taxes upon occupations andprivileges in unlimited, save restrictions found in organic law,(People vs Coleman, 4 Cal 46; People vs McGreery 34 Cal 342) orsuch as are inherent in nature of subject itself"

"License fee imposed as revenue measure cannot be justified underpolice power" (San Francisco vs Boss, 83 CA2d 445)

"The individual has no liability to the State where there is nopossession of state license/contract nexus, or where possession ofsame is by necessity.

The necessity being to protect life, liberty and property from an

unlawful taking. The necessity annuls the liability" (Burrows vsSup Ct, 13 Cal3d, 238 (1974)

Where the benefits of the license are unwanted, and the wanting ofthe benefits is an important one, since, if a benefit is forcedupon a person who objects, the benefit then becomes a gift and noreciprocating obligation arises. Even (cont)

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(cont) if a benefit is experienced by the default of the Grantee,the State, to take back the benefit when the licensee has objectedand protested. This Benefit Experienced Doctrine applies to bothtangible and intangible benefits.

This issue of 'benefits not wanted' is analogize in the amendmentto the U.S. Postal Statutes regarding the mailing of unwantedmerchandise, Title 39 s3009(a)

THE RIGHT TO TRAVEL IN THE MODE OF THE DAY, BE IT MOTOR VEHICLE,WAGON, CARRIAGE BY HORSE, IS INVIOLATE AND PROTECTED BEYOND COMMONLAW, ANTECEDENTLY, AND CONSTITUTIONALLY, AND BY INTERNATIONALTREATY

The United States State Department has defined the right to travelas being among the multiple entente meanings of Human Rights inthose treaties.

"Treaties have the effect of overruling state and Federal laws.This is not generally well known" (Chief Justice Warren Burger, USSupreme Court, Quoted by New York Times Magazine, September 22,1985)

"The United States has always been dedicated to the faithfulobservance of its treaty obligations. Many of the treaties to whichthe United States is a party contain stipulations so drafted thatthey create private rights, duties, privileges, or immunitieswithout the need of implementing legislation. Such treaties byvirtue of the constitution, are more than international obligationsof the U.S., they become part of our domestic law upon being made.Citing Haver vs Yaker, 9 Wall 32, 35, (1869) ".......inthis country, a treaty is domestic law upon being made, somethingmore than a contract, for the federal constitution declares it to

be the law of the land. It is consequently to be regarded in thecourts of justice as equivalent to an act of the legislaturewhenever it operates of itself, without the aid of any legislativeprovision, ruled so in marshall, C.J. in Foster vs Neilson, 2 Pet253, 314 (1829)

"A treaty then is a law of the land as an act of Congress is,whenever its provisions prescribe a rule by which the rights of theprivate citizen or subject may be determined" (Head Money Cases,112 US 580, 598, 599,(1884)

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"If the treaty contains stipulations which are self executing, thatis, require no legislative act to make them operative, to thatextent they have the force and effect of legislative enactment"(Whitney vs Robertson, 124 US 190, 194, (1888)

Justice Cardoza drew the distinction as follows: "A treaty has atwofold aspect. In its primary operation it is a compact betweenindependent states. In its secondary operation, it is a source ofprivate rights for individuals within the states" (Techt vs Hughes,229NY 222, 242(1920)

ADDENDUM

[Licenses issued by administrative agency, Department of MotorVehicles, are only for 'privileges' and do not grant that right orany right which otherwise is not yours, to use the common publichighways for personal travel]

"The privilege of using the streets and highways by the operationthereon of motor vehicles for hire, can by acquired only bypermission of license from the state or its political subdivisions"

Blashfield Cyc of Automobile Law & Practice Ed s331

"City having right to regulate use of its streets by motor vehiclesfor hire may issue licenses; license being permission"

Ex parte Schutte 42 SW2d 252

"A license confers upon licensee neither contractual nor vestedrights" (Rosenblatt vs California etc. 69 CalApp2d 69) Nor does itcreate a property right" (Zugravu vs O'Brien 196 NE 664)

[The vested right already exists under common law; the right ofproperty exists under common law]

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LICENSE IS BUSINESS CONTRACT WITH A PRIVATE AGENCY CREATED BY THESTATE, BUT IS NOT THE STATE EVEN THOUGH THE STATE AS AN INTEREST

It has been held that license involves a 'contract obligation' topay a specific compensation for a privilege.

State vs Chicago & North West RR, 108 NW 594

Chauffeur/driver license is a unilateral contract. After offer wasaccepted by a performance of the act, there was an obligationoutstanding on person only, the person performing the act asunilateral contract is by a promise for an act, or by an act for apromise.

DMV offers the privilege in return for a sum of money. But untilyou accept the privilege by the act of performing the privilege, noobligation is outstanding, thus, the license is void and no rights,or civil liabilities arise under a void contract. To phrase itanother way: When you have taken no bite from the proffered apple'privilege', have not enjoyed the sweetness of the fruit, noobligation or duty exists with the proffering agency, theDepartment of Motor Vehicles enforcing the Vehicle Code.

Effect of License:

Its acceptance does not impose any obligation on the licensee toexercise the privilege or to engage in the business covered by thelicense. State vs Chicago etc., 108 NW 594

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LEGISLATURE HAS NO POWER UNDER THE CONSTITUTION BY WHICH IT MAY

GRANT POLICE POWER TO AN AGENCY WHICH IS NOT ESTABLISHED TO PROTECTTHE PUBLIC PEACE, GOOD ORDER, OR THE HEALTH, MORALS AND SECURITY OFTHE PEOPLE. IF THE PARTICULAR AGENCY IS CREATED BY THE CORPORATESTATE OF CALIFORNIA AS A CORPORATE AGENT TO DO THAT WHICH THEREPUBLIC STATE CANNOT DO WHICH IS TO GRANT LICENSES TO REGULATEPERSONS ENGAGED IN BUSINESS ACTIVITY; NO POLICE POWER ATTACHES TOCIVIL STATUTES/CODES

"It is true that the legislation which secure to all protection intheir rights, and the equal use and enjoyment of their property,embraces an almost infinite variety of subjects. Whatever affectsthe peace, good order, morals and health of the community comeswithin its scope; and everyone must use and enjoy his property tothe restrictions which legislation imposes. What is termed the'police power' of the state, which from the language often usedrespecting it, one would suppose to be an undefined andirresponsible element in government, can only interfere with theconduct of individuals in their intercourse with each other, and inthe use of their property, only so far as may be required to securethese objects."

Munn vs Illinois 94 US 145, 24 LEd 77;Slaughterhouse Cases 16 Wallace 62, 21 LEd 394;Stone vs Miss. 101 US 818, 25 L Ed 1079

"An authority conferred by the American constitutional system uponthe individual states, through which they are enabled to establisha special department of police; adopt (cont)

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(cont) such regulations as tend to prevent to commission of fraud,violence, or other offenses against the state; aid in the arrest ofcriminals; and secure generally the comfort, health and prosperityof the state, by preserving the public order, preventing a conflictof rights in the common intercourse of citizens, and insuring toeach an uninterrupted enjoyment of all the privileges conferredupon him by the laws of his county"

Lalo, Pol. Encyclopedia s.v. Black's Law p 1317

[No police power constitutionally attaches to the Department ofMotor Vehicles by Statute, 1959, Vehicle Code either as party to

Department or not a party to the Department when they are enjoyingpeaceful intercourse in their common law right/privilege toparticipate in commercial traffic or as individuals enjoying theuse of the common highways for personal/private business, pleasure,transportation of private property without hire on those commonhighways]

"Regulations, fees and taxes may not be applied to the naturalperson using the common highways as it is in derogation of commonright of the public to use highways as an avenue upon whichvehicles for transportation of goods, passengers, freight, andtraffic of all kinds may be freely moved, having due regard forrights of others, while this, or other provisions of statute,should be fairly, liberally construed to promote and effectthe evident purpose for which it was intended, care should beexercised not to unduly extend its effect"

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Young vs Madison County 115 NW 23

"Highways are constructed and maintained for the benefit of membersof the public, who have the inalienable right to use them in areasonable manner without obstruction and under the doctrine of'over broadness', no statute may be drawn in such a way as toinhibit the exercise of the individuals freedoms affirmativelyprotected by the constitution.

When a law of regulation is adopted effecting the public highway,the question to be resolved is whether the regulation is areasonable exercise of state's power to regulate highways, orwhether it is an attempt on the part of the state in guise ofhighway regulation, to abridge constitutional rights" (Findley vsJustice Court 62 CalApp3d 566)

"While the use of the highways for 'travel and transportation' isnot a mere privilege, but a fundamental right, such use is subjectto reasonable regulations for public good and any appropriate meansadopted by the state to insure competence and care on the part oflicensees to protect others using highways is consonant with dueprocess"

Escobedo vs State of California, 35 Cal2d 870; Escobedo vs Dept of

Motor Vehicles, 222 P2d 1

[Nowhere in case law does it evidence that police power to arrestas the accepted procedure for regulation of users of the commonpublic highways. The only power to regulate highways is obtained bythe power to regulate commerce, which is not the regulation ofpersons engaged in commerce/traffic]

"Held,.......merely driving an automobile on the public (cont)

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(cont) roads is not a threat to the public safety or health, andconstitutes no hazard to the public, and a driver owes nothing morethan 'due care' to the public; and that the driver owes no otherduty to the state, he and his automobile have equal rights to andon the roadway as horses, wagons, carriages, etc..This same rightis still the substantive rule, in that speeding, running stopsigns, driving without a license, plates or registration are not inse 'threats to the public safety', and thus, are not arrestableoffenses." "While it is true that officer could not arrest theaccused for vehicle code infractions."Farley vs California, 20 CalApp3d 1032; 261 CalApp2d 461

VEHICLE CODE UNCONSTITUTIONAL IN PARTS

An act to repeal and re-enact the Vehicle Code. (Chapter 3,Statutes of 1959, as amended to the close of the Regular Session ofthe Legislature in 1989)

CONSTITUTIONALITY

Division 1, s10

5. If any portion of this code is held unconstitutional, suchdecisions shall not affect the validity of any other portion ofthis code.

[The Vehicle Code of 1959, and its amendments as of 1991, is inparts unconstitutional and should be challenged when those partsare applied and thereby, the person named in a Civil Extra-judicialNotice to Appear, has been deprived by those unconstitutional partswhen she/he is not a person of (cont)

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(cont) the class named/defined in the code, but merely becauseshe/he uses a present day mode of transportation as a means ofpersonal travel, private business or operating same and is immunefrom prosecution under the code]

"Due process provisions are commonly relied upon in attack ofdefense. However, principle that due process requirements of UnitedStates Constitution are violated by licensing legislation onlywhere legislation interferes, or destroys a personal propertyright"Payne vs Kansas 248 US 112; 240 US 342; 177 US 183

"While the use of highways for travel and transportation is not amere privilege, but a fundamental right"Escobedo vs State of California, 35 Cal2d 566

PART 1

THAT PART OF VEHICLE CODE WHICH PERMITS THE ARREST OF A PERSONPURSUANT TO VEHICLE CODE BY AN ADMINISTRATIVE CIVIL NOTICE TOAPPEAR, WHICH IS EXTRA-JUDICIAL, UNVERIFIED, AND FAILS TO SHOW AMALA PROHIBITA VIOLATION OR MALA PER SE VIOLATION ISUNCONSTITUTIONAL AS IT PERMITS ADMINISTRATIVEARREST FOR ADMINISTRATIVE ENFORCEMENT PROCEEDINGS WHICH ARE NOTARRESTABLE OFFENSES UNDER POLICE REGULATIONS, STATE LAW.

POLICE REGULATIONS; The laws of a state, or ordinances of amunicipality, which have for their objective the preservation andprotection of public peace and good order, and of health, morals,and security of the people.

Sonora vs Curtin 137 Cal 583

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[No constitutional police power exists for a peace officer toarrest an individual for a cited section deemed an 'infraction' asdefined in Vehicle Code. Infractions of civil codes are not 'publicoffenses'.

As civil offenses must be pursued as civil administrative actionswhen a person is a licensee of the agency and so engaged at thetime of stop.

Civil Administrative actions are summary procedure, which aremaritime in nature as to licensees. Vehicle Code is not a 'generallaw' as to all persons, but only 'general law' with force of law asto a class of persons named and noticed within the Vehicle Code]

[Infractions not being 'crimes' or 'public offenses' arrests citingsections of Vehicle Code in a Notice to Appear, commonly referredto as a 'traffic ticket', are not subject for police or civilarrest, thus, section 40306VC, is a false arrest and constitutesfalse imprisonment]

s40306.(a) Whenever a person is arrested for a misdemeanor or an'infraction', and is taken before a magistrate, the arrestingofficer shall file with the magistrate a complaint stating theoffense with which the person is charged.

" 'Arrest' occurred when police officer waved motorist to a halt,and restricted his liberty of movement pursuant to trafficviolation"US vs Washington, DC 1965, 249 F Supp 40; affirmed 401 F2d 914, 130US App DC 374

"A city police officer under pretended color of official right wasan abuse of authority invested in them as peace (cont)

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(cont) officers and relegated them to category of trespassers, soas to be liable for false imprisonment"Ware vs Dunn (1947) 80 CalApp2d 936

"As a notice to appear does not allege or show any probable causefor an arrest, and the fact that petitioner was released on apromise to appear before a committing magistrate for anarraignment, that fact is circumstance to be considered indetermining in first instance there was probable cause for anarrest"

Monroe vs Pape, DC Ill. 1963, 221 F supp 635

[Here are the grounds for a civil suit for damages for tort ofmalicious abuse of process, notice to appear, for false arrest andfalse imprisonment]

PART 2

THAT PART OF VEHICLE CODE WHICH PERMITS ARRESTS FOR MISDEMEANORS ASTHOUGH CRIMINAL (MALA IN SE) ACTS, IS UNCONSTITUTIONAL AS THEY ARENOT CRIMES UNDER PENAL CODE, BUT CIVIL ADMINISTRATIVE WRONGS (MALAPROHIBITA)

[Although all matters of Administrative Code Law are, in fact,special statutory proceedings, civil in nature, they are tried byquasi-criminal procedure as though, in fact, are mala in secriminal violations of Vehicle Code rather than, in fact, malaprohibita offenses of Vehicle Code]

MALA IN SE: Wrongs in themselves; acts morally wrong; offensesagainst conscience. (Crimes under penal code)

MALA PROHIBITA: Prohibited wrongs or offenses; acts which are madeOFFENSES by positive laws and PROHIBITED as such.

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Black's 4th p 1108

POSITIVE LAW: Law actually and specifically enacted or adopted byproper authority for the government of an organized 'juralsociety'. Black's 4th p 1324

JURAL SOCIETY: The term 'jural society' is used as the synonym of'state' or organized political community. Black's 4th p 989 note 4

[Positive laws are those laws which are judicial in nature, generallaw as to all the people of a state, whereas administrative law isto a special class of people and general law only to that specialclass created by the legislature and given created rights by alicense which imposes duties, rules, of conduct when natural rightsare abandoned for special privileges not available to the generalpopulation]

"Where criminal proceedings are used as ruse or pretext, or in bad

faith for the bare purpose of, getting some person into thejurisdiction in order to serve him with civil process, the processwill be set aside on the ground that there has been such an abuseof process as precludes jurisdiction in personam, and the facts mayjustify a recovery of damages for abuse of power"

1 American Juris 2d s14

[Vehicle Code misdemeanors are civil misdemeanors and thus, notarrestable offenses as mala in se, and are tried by specialstatutory proceeding as a traffic offense]

"A 'traffic offense' is not a 'criminal' case within the meaning ofthe Fifth Amendment"

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Lea vs MacDuff 126 NYS2d 646;People vs Bliss 278 NYS2d 732

"Violations of Vehicle Code are civil, including Driving Under theInfluence"

Hawaii vs Brown 651 P2d 488

"In People vs Olds 140 CalApp2d 156, reviewing court held thatunder Gross vs Superior Court 42 Cal2d 816, 820, when a matter iscivil code, which are special proceedings with possible collateralcriminal action, but it cannot be pursued where there is nocriminal act as then the defendant is not fined for the commissionof a criminal act, but because it was determined he had violatedsome civil code"

[To make a determination, if the cited section in the notice toappear is a mala in se (penal code crime) or mala prohibita(private code violation) go to the Penal Code. If the cited sectionis on in Health & Safety Code or Vehicle Code, or Welfare &Institutions Code, etc. is a mala prohibita violation, and you mustbe a licensed person enjoying the benefits of the private code atthe time of the issue of the notice to be within the jurisdictionof the particular code and its enforcing agency]

PRIVATE STATUTE, (code): A statute which operates only upon

particular persons, and private concerns.

I Blackstone's Commentaries 86

An act which relates to certain individuals or to a particularclass of men.

State vs Chambers 93 NC 600

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BENCH WARRANTS FOR FAILURE TO APPEAR ON MERE UNVERIFIED NOTICE TOAPPEAR ISSUED WHEN NO VERIFIED COMPLAINT HAS BEEN FILED BY SOMEPARTY OR AGENCY WITH THE MAGISTRATE OF MUNICIPAL TRIBUNAL SITTINGFOR HEARING FOR ADMINISTRATIVE AGENCY TO SET AN ADMINISTRATIVERECORD ARE NULL AND VOID WITHOUT FORCE OF STATUTORY LAW

[A bench warrant for arrest for a failure to appear on a Notice toAppear constitutes a false arrest by the magistrate issuing thebench warrant when the matter allegedly before the tribunal iscivil special statutory procedure. Is error as it assumes personnamed on the notice is a licensee and was engaged in the activityregulated and enforced by the Department of Motor Vehicles.]

[Bench Warrants are not Arrest Warrants. A bench warrant can onlyissue on civil proceedings for contempt of a lawful court orderpursuant to a judgment]

[Bench Warrants are administrative as in case of Vehicle Code whenthey do not issue pursuant to s40513(a), "a complaint shall befiled which shall conform to the provisions of Chapter 2(commencing with section 948) of Title 5, Part 2 of the PenalCode,....." Which are the demanded provisions for issuing acriminal warrant of arrest]

The other side of the 'coin' as to nature of warrants of arrestwhere administrative is clearly explained in Abel vs US 362 at 246:"The administrative warrant of arrest which has long been (cont)

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(cont) used by INS and other agencies. It is not the ordinaryjudicial warrant; yet, even so, there is some check in therequirement that, before the administrative warrant is signed, thesigning official must be shown a prima facie case, and even if wemust, under Wong Wing, concede that administrative arrest authoritymay be conferred where necessary to give effect to substantivepowers possessed by an agency, that is true only where substantivepowers are powers over the person (Aiuppa vs US 338 US F2d 146)only substantial relationship means jurisdiction(See vs Seattle 387 US 541, Camara vs San Francisco 387 US 523)

Otherwise administrative arrest authority might be permitted sowidely that it could subvert the practical effectiveness of theFourth (Aiuppa)"

"To the administrative arrest power may thus be added anadministrative bail power, remembering first, power over theperson. The vital safeguard of independent judicial determinationis lacking. The same agency which is given arrest power, alsodetermines whether there is probable cause to support a givenarrest, whether the person detained should be conditionallyreleased on bail. To all this should be added the fact that it isthe same agency that makes the charge which leads to the arrest,prosecutes the charge and then determines in an administrativeproceeding whether the charge is justified. It is comparable to acase in which the prosecuting attorney or their law enforcementsubordinates make a final determination as to whether personsaccused on something shall remain in jail awaiting a (cont)

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(cont) decision as to the truthfulness of the accusation againstthem. (342 US 554, per Black's)

[Civil Notices issue on cited section of Vehicle Code which only byproper procedure and evidence become administrative 'trafficoffenses']

"Traffic Offenses - Judge in Capacity of Magistrate. Arrestingofficer must file a complaint under oath stating the offensecharged and copy of the Notice to Appear to the officer's lawenforcement agency, VC sss405000, 40504, 40506. The failure toappear mandates regular verified complaint. (Pen C. ss 948, 963)"

[When the above proper procedure is not followed and no probablecause shown by mandated regular verified complaint no bench warrantcan lawfully issue]

"In United States vs Evans 574 F2d 352 (1978) it held: If after theservice of an appearance ticket and filing of a complaint for theoffense designated therein, the defendant does not appear in thedesignated local criminal court at the time the appearance ticketis returnable, the court may issue a warrant based upon thecomplaint filed."

[A bench warrant cannot issue without the filing of a verifiedcomplaint showing the probable cause for the arrest as themagistrate is without subject matter jurisdiction]

[A notice to appear, standing alone with mere citations fromVehicle Code, without accompanying complaint, cannot be accepted bythe magistrate as presumptive evidence of facts evidencing probablecause as it is without facts]

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PRESUMPTIVE EVIDENCE:Note (2) Evidence which must be received and treated as true andsufficient until rebutted by other testimony. Note (3) Presumptiveevidence is synonymous with prima facie evidence.Black's 4th p 1350

PRIMA FACIE: At first sight; on the first appearance; on the faceof it; so far as can be judged from the first disclosure;presumably; a fact presumed to be true unless disproved by someevidence to the contrary. Black's 4th p 1353

PART 4THAT PART OF VEHICLE CODE WHICH PERMITS A DEFENDANT TO WAIVE THENEED FOR THE FILING OF A VERIFIED COMPLAINT THEREBY GIVING THEMAGISTRATE SUBJECT MATTER JURISDICTION IS CONTRARY TO STATUTORYMANDATE AND DENIED A DEFENDANT DUE PROCESS OF STATUTORYPROCEDURE The pertinent part of 40513(a) VC is: ....except that a defendantmay, by an agreement in writing, subscribed by him and filed with

the court, 'waive the filing of a verified complaint and elect thatthe prosecution may proceed upon the written complaint'.

[A magistrate of a court without subject matter first obtained bya filing, has no jurisdiction to take any steps in a case broughtbefore him or make a ruling or listen to any motions by any partyto the case]

[One may as well state that a magistrate has the power to (cont)

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(cont) assume subject matter jurisdiction, step into the halls ofthe court house or upon the streets and by mere robe of officebring any person into his jurisdiction without the need to conformto the mandated procedure of Vehicle Code]

"Where no formal complaint filed, no subject matter jurisdiction.Court must be relieved of the burden of being compelled toparticipate in illegal conduct. It is morally incongruous for thestate to flout the constitutional rights and at the same timedemand that its citizens obey the law. If government becomes lawbreaker, its actions breeds contempt for the law. Such conduct byits lawless venture lends aid to lawless venture."Cahan, 44 Cal2d at pg 445

[Where the district attorney appears for the People of the State asplaintiff, his duty to conform is mandated]

"The requirement that a prosecution be based upon a swornstatement, made by a district attorney, is an essential guaranteeto a defendant of a fundamental right, namely, that he not bepunished for a violation without a formal and sufficientaccusation, and this right may not be waived even by a plea ofguilty" Albrecht vs US 273 US 1, 8; Weeks vs US 216 F 292

"Subject matter jurisdiction may not, however, be conferred byconsent, vaiver, or estoppel" Summers vs Sup Ct 53 Cal2d 295

"A court cannot obtain judicial subject matter jurisdiction (cont)

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(cont) by consent"Bonds vs Hickman 29 Cal 460; Norwood vs Kenfield, 34 Cal 329;Elliot vs Sup Ct 168 Cal 727;Schlyn vs Schlyn 43 Cal2d 361

"Jurisdiction of subject matter cannot be conferred"Van Horn vs Justice Ct Cal2d 235;Samsell vs Sup Ct Cal2d 763

"Jurisdiction of subject matter over which a court has otherwise nosubject matter jurisdiction cannot be conferred, by consent,stipulation"Kurtz vs Culer 178 Cal 178

".....or agreement"Johnson vs Malloy 74 Cal 430

"...or silence"Tennessen vs Prudential 8 CalApp2d 160;James vs Sup Ct 135 CalApp2d 352

"....or appearance"Samsell, supra, Robinson vs Sup Ct 35 CalApp2d 379

".....or waiver"Schlyn, supra; Keithly vs Civil Service 11 CalApp3d 443

"Where there was a want of jurisdiction of the subject matter, thepurported judgment or order of the respondent court was void forall purposes"Fletcher vs Sup Ct 79 CalApp 468

PART 5UNLAWFUL, INDISCRIMINATE USE AND ABUSE OF VEHICLE CODE AS TOLICENSEES OF DEPARTMENT OF MOTOR VEHICLES, AND (cont)

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(cont) NON-LICENSEES OUTSIDE THE JURISDICTION OF THEADMINISTRATIVE AGENCY AGENTS AND EMPLOYEES AND PUBLIC OFFICIALS ANDPEACE OFFICERS AND COUNTY DISTRICT ATTORNEYS, WHO UNDER COLOR ANDGUISE OF VEHICLE CODE AND OFFICE AND SCOPE OF DUTY, TREAT CITATIONSIN NOTICES TO APPEAR AS CRIMES AND THEREBY VIOLATE RIGHTS OF

PRIVACY

[The user of the common public highways has an interest which mustbe protected, his privacy. When the privacy is not a concern to thepublic with right to know, the user of the common public highways,absent the commission of a crime, his right to privacy isguaranteed as a constitutional privilege, and so deemed by theUnited States Supreme Court by the First, Third, Fourth, Fifth andNinth Amendments]

[The right of the individual to engage in lawful activity ofbusiness of transportation, trafficking on the highways by the useof motor propelled conveyances is absolute, and the individual soengaged cannot be compelled to sacrifice his freedom, liberty andprivacy while so engaged under color and guise of Vehicle Code;when his property and time and facilities are not dedicated to thepublic's benefit, nor the individual so engaged to earn alivelihood for himself and his family, nor the individual who usesa motor driven conveyance for family use, transportation of privateproperty, personal business or private business for anotherindividual]

[When an individual acts on his behalf, without any legal or lawfulresponsibility to the people of the state or any of its corporateagencies, then the privacy zone is trespassed (cont)

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(cont) and thereby violated when he is stopped by any person actingfor the Department of Motor Vehicles and is asked any questions,personal in nature, as the right to expectation of privacy as tohimself or his activity are fundamental and not to be violated whenthere is no nexus contractually, legal, lawfully with CorporateState of California or specifically with the Department of MotorVehicles]

TRAVELER: To go from one place to another at a distance; tojourney; spoken of voluntary change of place.TRAVELER: One who passes from place to place, whether for pleasure,instruction, business, or health.Black's 4th p 1671

"Right to travel is a basic right repeatedly recognized andguaranteed by constitution"

Town of Pompey vs Parker, 1976, 385 NYS2d 959

"Deceit and fraud is used to bring a traveler who travels by themode of the day, a passenger vehicle, to unknowingly volunteer foran occupational license whereby he is led to believe that he mustbe licensed, and thereby infringes and takes from the him right toprivacy as a traveler. When the traveler has no relationship to thepublic health, safety, and welfare, and the license offering nobenefit or protection to the traveler, is an unconstitutionalapplication of a constitutional statute, and infringes upon theprivacy of the individual by the demand of certain facts andinformation as a condition of the license. Thereby infringes uponthe fundamental liberty of privacy and the right to be let alone (cont)

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(cont) as guaranteed by the 9th Amendment of the Constitution."State vs Albertson, 1970, 470 P2d 300

"......when there is no showing of subordinating state interests"Dawson vs Hillsborough County, DC Fla, 1971, 322 F Supp 286

[Equally, the individually licensed to engage in, enjoy traffickingon the common highways by any mode of transportation but, at thetime of a 'traffic stop' is using a motor vehicle but not usingsuch at time trafficking, is not within the jurisdiction ofDepartment of Motor Vehicles, and thus, has not lost his zone ofprivacy]

[Nor is any traveler, business engaged or private, a subject ofscrutiny by municipal police officers, as he is not the subject ofinvestigation/scrutiny when he has not committed a publicoffense/crime by the eyeball witnessing of the police officer inhis scope of duty]

"The right to privacy, to be let alone, (9th Amend) may only bejustified by the state's taking, when a compelling state interestin regulation of the subject is within the state's constitutionalpower to regulate can justify the limiting of freedoms, liberty,and privacy"US vs Lee, Pa, 1982, 455 US 252, 71 Led2d 127

[To stop any traveler upon the public highways is an unwarranted

invasion of the individual's privacy when there is no probablecause for belief of a public offense, and inflicts unwarrantedpublicity, of a negative nature, when done in view of all personswitnessing. It is always the (cont)

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(cont) belief of the public that when an individual is being heldby a uniformed figure of authority, the person so held hascommitted some wrong. Thus, by the intrusion of a figure ofauthority, valid or invalid, into the privacy of the individual bythe asking of questions, outside the right of the police officer toknow the answers, inflicts public shame and embarrassment upon theindividual who has done no wrong]

"The right to privacy is the right to be let alone, to be free fromunwarranted publicity"Holloman vs Life Insur. 192 Supreme Ct 454

[Any act, by any person, which denies the individual's right towithhold private information or his property from scrutiny withoutvoluntary, willing, consent, is an infringement and taking of one'sprivacy, to his harm]

"And the right to withhold himself and his property from publicscrutiny, if he so chooses, and it exists so far as its assertionis consistent with the law, or public policy, and in a proper caseequity will interfere, if there is no remedy at law, to prevent thethreatened injury by invasion or infringement upon his right frommotives of gain or malice"Federal Trade Comm vs American Tobacco, 264 US 298

MALICE: The intentional doing of a wrongful act without just causeor excuse, with an intent to inflict injury or under circumstancesthat the law will imply an evil intent. A conscious violation ofthe law (or the prompting of the mind to commit it) which operatesto the prejudice of another person. (cont)

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(cont) In the law of malicious prosecution, it means that theprosecution was instituted primarily because of a purpose otherthan that of bringing an offender to justice.

Black's 4th p 1109

[In US vs CHADWICK, 1977, 97 S. Ct 2476, 53 LEd2d 538, the SupremeCourt in a 7 to 2 decision, said to be the most important casesince 'Chimel vs Cal (1969) 395 US 752' since it expands the rightto protection of the individual's privacy to that right wherepersonal property is involved, where previously/traditionally ithad been limited to the home]

[CHADWICK extends the right of movable personal property to theprotection of the Fourth Amendment. The case was based uponreasonable expectation of privacy by a person manifested by an actto exclude the invasion of privacy even if the authorities obtainexclusive control over it. In that case it was luggage obtained byprobable cause, where if there is no emergency or exigentcircumstances to justify invasion without warrant, a warrant isrequired to invade personal movable property]

[The court in CHADWICK emphasized that their decision in no waychanged the different rule that applies to motor vehicles. 'Ahistorical governmental treatment of motor vehicles, which permitsthem to be licensed as commercial motor vehicles in commoncarriage, and as such subject to impound']

[Take careful notice of the limitation implicit therein. They aretalking about commercial motor vehicles which have (cont)

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(cont) been dedicated to the public's use]

"So long as one uses his property for private purposes and does notdevote it to the public's use, public has no interest in it and novoice in its control"Associated Pipe vs R.R. Comm 176 Cal 518

[So, the motorist with his private undedicated automobileobviously, does not neatly fit in CHADWICK included vehicles usedfor 'common carriage', further that any motor propelled vehicle is'movable personal property', and not being 'equipment' underUniform Commercial Code s1-109. 1, 109.14 but is 'consumer goods'it comes within CHADWICK's 'luggage'. Additionally, in Ingersoll vsPalmer, the California State Supreme Court, Broussard, J. in hisdissenting opinion cited the United States Supreme Court case,

(Delaware vs Prouse (1979) 440 US 648, 662-663) which ruled that "'motorists' have a considerable and legitimate expectation ofprivacy in their automobiles, including expectation of freedom ofmovement"] [Author would argue that a person traveling in his 'consumer goods'with doors locked and windows closed, and which is not heavily,persuasively regulated dedicated motor vehicle, certainly comeswithin the restrictions imposed on government police power by theFourth Amendment]

"It seems rather elementary to us that a locked door is a verystrong manifestation of a person's expectation of privacy, andthus, protected by the Fourth Amendment"People vs Trull (1978) 380 NE2d 1169

[Driving for pleasure, private business, or personal transportation (cont)

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(cont) obviously does not deprive a 'motorist' of the FourthAmendment protection from invasions/ intrusions, unless 'palpable,reasonable articulable probable cause exists]

"As to general public, his expectation of privacy was unqualified"State vs Johnson (1981) 301 NW2d 625, 628

"Court rejects the argument that driving is a persuasivelyregulated activity subjecting motorists to roving stops. Courtexplained that roving stops of a motorist was unreasonable, thedriver was not in the same position as the gun manufacturer orliquor distributor who had, in effect, consented to the inspectionby entering a heavily regulated industry"Almieda-Sanchez vs US (1973) 413 US 266

[So, the expectation of privacy is not qualified merely because themotorist uses the common public highways and he is a member of thepublic, but only when licensed and obtains a benefit by catering tothe general public]

"Because a person travels by motor vehicle, vehicle does not becomea viable touchstone which determines that the scope of privacyprotected by the Fourth Amendment is reduced or eliminated, such

determination would be conclusory."Standing and Expectation of Privacy31 University of Florida Law Review

"The individual's right to privacy may be raised on the specificprovisions of constitution protected personal privacy, from otherforms of governmental invasion, so that the individual is able toraise the shield of the constitution (cont)

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(cont) against the practice, and if a zone of privacy can begrounded on neutral principles rooted in constitutional protectionof Amendments of the United States First, Third, Fifth, Ninth."US vs Choate 576 F2d 165; cert denied 439 US 953, and CaliforniaState Constitution Article 1, s1

"The vision of the Fourth Amendment that emerges from thisre-interpretation is that any effort by a government agency toobtain information falls within the ban of fourth if it intrudesupon citizen's security."Katz vs US (1967) 389 US 351

[The involuntary disclosure of personal information, induced bydeceit of color of statute, color of uniform, at time ofquasi-police stop by the demand for identification when no nexusexists with a particular administrative agency (department of motorvehicles), the deceit and coercion being that failure to produceidentification of oneself, registration of a vehicle, or evidenceof license fee paid, is an unlawful intrusion/invasion/deprival ofprivacy by some person who, under color of Vehicle Code, when thereis no actual knowledge that the individual stopped is a personwithin the jurisdiction of the Department of Motor Vehicles aslicensee who, at the time of the traffic stop, is using/enjoyingthe privilege and its benefits]

"When disclosure of personal information, which is potentiallyharmful, violates the right secured by the constitution, and theconstitution secures the right of privacy because that (cont)

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(cont) privacy right is 'indispensable' to some other

constitutional right, and thus critical questions are whether, andhow, involuntary information affected exercise of rightindependently secured by the constitution. The constitutionprotects individual interest in avoiding disclosure of personalmatter, which right is well characterized as the 'right ofselective disclosure' "Crain vs Krehbiel 443 F Supp 202

[Obviously, any information extracted from you which would lead toprosecution and fines, assessments, or incarceration, can not becompelled by the intrusion of privacy]

[If the person stopping is legitimately able to act for theDepartment of Motor Vehicles as an employee or agent, and by hisown determination able to articulate that you are a person withinthe jurisdiction of the agency, i.e., (a chauffeur catering to thegeneral public in some capacity, and have collected a sum of moniesor anticipate collecting a sum of monies in some activity regulatedby the Department of Motor Vehicles) then you are ripe for theplucking]

[When you are a person traveling as a private affair and thepurpose of the traveling is without business privileges from anagency of the corporate state, then the state nor the generalpublic of the state, has any interest in that private affair for itneither gains a benefit due it, nor does it lose a benefit due it]

"A right of action for invasion of one's privacy is recognized inCalifornia"

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Coverstone vs Davies 38 Cal2d 315; cert deniedMock vs Davies 344 US 840

[Intrusion into a plaintiff's private affairs are tortable cause ofaction. Private affairs are those acts which are not clothed withpublic interest, which affects the plaintiff but have no effectupon the public, and no duty is owed the general public or to anydivision of the state]

Four torts are encompassed with the 'law of privacy'.(1) Intrusion upon plaintiff's seclusion or solitude, or into hisprivate affairs;

(2)Public disclosure of embarrassing private facts about theplaintiff;(3) Publicity which places plaintiff in a false light in thepublic's eyes;(4) Appropriation for defendant's advantage, of likeness or name.Lugosi vs Universal Studios 25 Cal3d 813

"The state cannot enter the realm of the private life of theindividual anymore than it can enter the realm of private familylife"Moore vs City of East Cleveland 431 US 494 (1977)

[So, seriously consider a civil suit when stopped, and as a resultof that stop you are deprived of the right to privacy as is thecommon mala in se criminal]

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PART 6THAT PART OF VEHICLE CODE WHICH PERMITS PEACE OFFICERS TO ARRESTFOR MALA PROHIBITA MISDEMEANORS, AND TRIED AS THOUGH MALA EN SEMISDEMEANORS BY QUASI-CRIMINAL PROCEDURE WITHOUT TRUE CRIMINALPROCEDURE, IS UNCONSTITUTIONAL PROCESS

[Where the matter is a quasi-criminal procedure for mala prohibitamisdemeanor under Vehicle Code, then because a six month jailincarceration may ensue, it is a deprival of due process of thelaw. When true criminal procedure is absent from the prosecution bylaw enforcement agency, and when arresting officer fails to filewith Notice to Appear, a verified complaint with the lawenforcement agency]

"TRAFFIC OFFENSES - JUDGE IN CAPACITY OF MAGISTRATE. Arrestingofficer must file a complaint under oath stating the offensecharged, and copy of the Notice to Appear to the officer's lawenforcement agency, sss 40500, 40504, 40506. The failure to appearmandates regular complaint filed (Pen C. ss 948, 963) with court."

[It is the belief of the author that the law enforcement agencymust be the Department of Motor Vehicles, as Notices to Appear areonly authorized within Vehicle Code, and original jurisdiction liesonly with that agency]

[This author then started his research with VC s40500, and followed

its references and continuing sections, and made the discovery thata Notice to Appear included violations of ordinances of city andcounty traffic violations. So, somewhere along the line in thechain of command and delegation (cont)

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(cont) of authority, the county municipal courts have beendelegated the authority to hear county and city traffic ordinanceswhen they are violated within those jurisdictions, and werelicensees engaged in trafficking at the time of arrest]

NOTICE TO APPEAR40500 (a) "Whenever a person is arrested for any violation of thiscode not declared to be a felony, or for a violation of anordinance of a city or county relating to trafficoffenses..........the offense charged......."

[I have never seen a Notice which charged an offense, which ofcourse, is why the need for a complaint]

(d) ".....the officer shall deliver the remaining original and allcopies of the Notice to Appear as provided" s40506

[which merely states that the officer shall file a copy of theNotice to Appear with a magistrate or judge, and with thecommissioner, chief of police, sheriff or other superior officer tothe arresting officer]

[So, here we go again. Author maintains the need to file a copywith the commissioner, the Commissioner of the Department of MotorVehicles, the agency enforcing its own statutory law. The otherparties must be noticed by a copy of the Notice to Appear, as theycan be called as witnesses. Give this thought some seriousconsideration. After arraignment, subpoena the Commissioner andwhomever is the superior officer of the arresting officer as awitness for the defense]

[Now comes the interesting sections of Penal Code cited underfailure to appear which are mandated]

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Pen C s948 is forms; rules for determination of sufficiency ofpleadings, and in cases of inferior courts it refers to s740 PC

s740. Offenses Triable in Inferior courts; Prosecution by Writtencomplaint.

Except as otherwise provided by law, all public offenses triable inthe inferior courts must be prosecuted by written complaint underoath subscribed by complainant.

Pen C. s963 Pleading private statutes or ordinances; judicialnotice.

In pleading a private statute, or ordinance of a county or amunicipal corporation, or a right derived there from, it issufficient to refer to the statute or ordinance by the title andthe day of passage, and the court must take judicial noticethereof, in the same manner that it takes judicial notice ofmatters listed in section 452 of Evidence Code.

PRIVATE STATUTE: A statute which operates only upon particularpersons and private concerns.1 Blackstone's Commentaries 86

An act which relates to certain individuals or to a particularclass of men.State vs Chambers 93 NC 600

"Where a private occupational statute (vehicle code) as here, ofwhich the intent is a regulation of private commercial occupations,the particular agency enforcing that private statute, shall notapply it by trickery and deceit, or threat and misrepresentation,to persons who are not noticed by the (cont)

VOL 1 CHAPTER 12 - 29PAGE 216

(cont) statute as persons regulated and taxed. Nor should itpermit any party to so do, in violation of a persons right to stayout of a compelled contract, when he is not a person subject to astatute, unless clearly within its words"State vs Eberhard 179 P 853; 246 P2d 1011

[This is the demanded procedure for issue of a 'failure to appearbench warrant' if person is clearly within its words]

"Before a man can be punished, his case must be plainly andunmistakenly within the statute, and if there is any doubt whetherthe statute embraces it, that doubt is to be resolved in favor ofthe accused"US vs Lacher 134 US 624Evid C. s452

JUDICIAL NOTICE MAY BE TAKEN OF THE FOLLOWING MATTERS TO THE EXTENTTHAT THEY ARE NOT EMBRACED WITHIN s451(a) The decisional, constitutional, and statutory law of any stateof the United States, and the resolutions and privateacts........of the legislature of this state. s453.

COMPULSORY JUDICIAL NOTICE UPON REQUESTThe trial court shall take judicial notice of any matter specifiedin s452, if a party requests it and:(a) Gives each adverse party sufficient notice of the requestthrough the pleadings, or otherwise, to enable such adverse partyto prepare to meet the request, and:(b) Furnished the court with sufficient information to enable it totake judicial notice of the matter.

VOL 1 CHAPTER 12 - 30PAGE 217

[The bottom line question is: Is this a mala prohibita or is it amala en se violation?]

[This author believes and contends that any action, which isinitiated by a Notice to Appear pursuant to Vehicle Code, cannot beconverted to a public offense status. That is why cops, districtattorneys and prosecutors, never, when a party has been issued acivil, extra-judicial notice, file a verified complaint charginga public offense based only on the notice itself, and why arrestingquasi-cops never verify a Notice to Appear as required under s40513(b), which only then permits the magistrate to issue a benchwarrant for failure to appear when the notice is checked as a'traffic ticket'.]

[If the matter was a true penal code misdemeanor, mala en se, andthe issue is 'no Driver's License', and you are to be prosecutedfor not having a Driver's License, here is the due processprocedure which the magistrate & prosecutor must do when theprocedure is 'quasi-criminal' in nature]

[Understand that because cops/prosecutors/magistrates would haveyou believe that 'driving is a privilege', they are not actuallysaying the mere driving (verb) is the privilege. The privilege isto do some act which would otherwise be unlawful, i.e., sellingalcoholic beverages, or driving for compensation or anticipatedcompensation]

"Criminal prosecution and conviction for violation of a lawrequiring a license, or imposing an occupation or private tax, willlie where (Commonwealth vs Leswing 5 A2d 809), and only where (Cityof Pittsburgh vs Kane 14 A2d 887), and the (cont)

VOL 1 CHAPTER 12 - 31PAGE 218

(cont) accused's conduct comes within the condemnation of thestatute sought to be enforced. The question of what court hasjurisdiction of such prosecution is determined by the statute"City of St. Louis vs Bouckaert 185 SW2d 886

[If a Vehicle Code misdemeanor were a true misdemeanor, then thedemand for a verified complaint is clearly mandated in s40513(a)]

"A complaint must be sufficiently definitive and specific, to givefair notice to the accused of the nature of the case he is to meet,and furnish the court and jury with sufficient basis for anappropriate judgment"US vs Independent Meat 32 F Supp 317

"The necessity and sufficiency of allegations are determined inaccordance with general principles. Where facts are materialelements of the offense, .........., and where the license isrequired for doing certain acts only under certain conditions, acomplaint for doing such acts without required license shouldclearly set out the existence of such conditions in order to bringthe offense within the statute"State vs Insley 20 A 1031

"Before a man can be punished, his case must be plainly &unmistakenly within the statute, and if there is any doubt whetherthe statute embraces it, that doubt is to be resolved in favor ofthe accused"US Lacher 134 US 624

"Where the complaint is for pursuing or engaging in an occupation

or profession requiring a license, it must be (cont)

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(cont) alleged that the accused did pursue or engage in suchoccupation, and that the accused did pursue or engage in withoutthe required license"People vs Wacks 137 NYS 652Calif - People vs Jarvis 27 P2d 77, 135 CalApp 288

"The fact that the occupation or business is carried on forcompensation or profit, must be alleged where the fact is essentialelement of the offense"Cousins vs Commonwealth 19 Gratt 80737 Cal Juris p 268, note 20

"The essential elements of the offense must be proved beyond areasonable doubt"Fuller vs City 152 So 66

"The burden is on the prosecution, in the first instance, to proveall the material elements of the offense charged; when the primafacie case has been established, the burden devolves on accused ofadducing evidence as to the matters of defense, such as, he wasexempt from the requirement"Ex parte Buczkowski D.C. Cal 30 F2d 416affirmed CCA 32 F2d 891

PART 7NOTICE TO APPEAR IS USED AS A PLEADING WITHOUT DUE PROCESS OFEITHER PENAL CODE OR ADMINISTRATIVE PROCEDURE

[That part of the Notice to Appear, which is an administrativecivil procedure, non-judicial in nature, cannot be used as apleading]

"Held, that a uniform traffic ticket is not sufficient (cont)

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(cont) information to be used as a pleading, and held that theabsence of verified information was a jurisdictional defect whichcould not be waived by a plea of guilty"

3 NY2d 148

"As a notice does not allege or show any probable cause for anarrest, and the fact that petitioner was released on a promise toappear before a committing magistrate for an arraignment, that factis circumstance, to be considered in determining whether in firstinstance there was probable cause for the arrest"Monroe vs Pape D.C. Illinois 1963, 221 F Supp 635

[Notice requires the individual to sign a promise to appear with anadmission of guilt a part thereof]

"Without admitting guilt, I promise to appear........"

[That is a plea, and in the opinion of the author, that is a pleaof guilty as it does not state 'not guilty', but the fact is thatit is a plea]

[That is an unconstitutional demand for a plea made to anindividual who, at the time, is not a sworn officer of a court withsubject matter/personam jurisdiction to accept a plea]

"Officer was not duly sworn at the time of issue of the notice, andnotice was not verified, therefore the notice is null and void, andhas no legal binding in this court or in this case"Federal 34 US 969Gleason 32 Kansas 245Balard 43 Ohio 340

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[A plea cannot be accepted until a formal, verified complaint hasbeen filed by a law enforcement agency with the magistrate of thecourt, showing probable cause, and the asking of a warrant ofarrest]

"TRAFFIC OFFENSES - JUDGE IN CAPACITY OF MAGISTRATEArresting officer must file a complaint under oath stating offensecharged, and a copy of the Notice to Appear, to the officer's lawenforcement agency. VC sss40500, 40504, 40506, Pen C sss948, 963,11.36, filed with the court."

[If the complaint is filed under Vehicle Code, the matter is beforea magistrate]

"The word 'magistrate', does not necessarily imply an officerexercising any judicial functions"Schultz vs Merchant's Insur Co 57 Mo 336

[If the complaint is filed under Penal Code, the matter is a truecriminal complaint demanding all the protection to the accused bythe court at-law under 4th, 5th, and 6th Amendments of the Bill ofRights]

[So, if or when you appear in a municipal court on a Notice toAppear (traffic ticket), then you must ask the man on the benchwhether the arrest was a civil arrest pursuant to Vehicle Code, orif it was a criminal arrest pursuant to the Penal Code. You canthen understand the nature of the action against you, and ask forthe mandated complaint so you can understand the nature of thecharge, as you cannot enter a plea without understanding the chargefiled with the court]

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PART 8"WITHOUT ADMITTING GUILT, ......." HAS THE SAME EFFECT AS A PLEA OFGUILTY, AS THERE IS AN AWARENESS OF GUILT, THOUGH NOT ADMITTED.ONLY A PLEA OF 'NOT GUILTY' DENIES GUILT

"A plea of guilty, in so far as regards proceeding on complaint,and is a confession for purposes of criminal prosecution"US vs Hartwell 3 Clifford 221

[So, if the magistrate informs you that a Notice to Appear is thesame as a complaint, or is a complaint, and the proceedings beforethe court are criminal or quasi-criminal, then inform themagistrate that the confession of guilt is being withdrawn]

[When a plea of guilt is obtained under duress and coercion, if thenotice will not be signed, then it is invalid. A confession must bevoluntary and knowingly made, and must show corpus delicti, primafacie and mens rea evidence before it may be introduced into therecord of the case by a court at a pre-trial hearing, or at thetrial]

[Where a confession is obtained under duress, by coercion orthreat, and fear of loss of liberty, that confession is not anadmissible confession of guilt. Standing alone, without a

determination that it was in fact voluntary, is a 'naked'confession]

"A confession is naked when it is unsupported by any evidence of acrime by the confessor, and was induced from the confessor by thethreat of official prosecution, and (cont)

VOL 1 CHAPTER 12 - 36PAGE 223

(cont) thus, is not voluntary"Cannon vs US 19 F2d 823State vs Dolan 90 A 1034, 1035

"No confession induced by threat of official prosecution isvoluntary, and as such, is not admissible on a question of guilteven though statements contained in the confession may beindependently established as true"Rogers vs City of Richmond 357 US 200

"A confession is a fact to be proved by evidence, rather thanevidence to prove a fact"State vs Castelli 101 A 476

MANDATORY APPEARANCEs40302 VC. Whenever any person is arrested for any violation ofthis code, not declared to be a felony, the arrested person shallbe taken without unnecessary delay before a magistrate within thecounty in which the offense charged is alleged to have beencommitted, and who has jurisdiction of the offense and is nearestor most accessible with reference to the place where the arrest ismade in any of the following case;

(b) When the person arrested refuses to give his written promise toappear in court.[Subd. (b) constitutes the threat and coercion used to compel theconfession and shows the act of signing the confession was notvoluntary]

[Additionally, the confession should not be admissible evidence asit was made to an individual who was not a sworn (cont)

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(cont) officer of the court before which you must appear. Thecourt magistrate must suppress the unknowing, involuntaryconfession of guilt on the notice, and suppress the notice itself,as standing alone it is without probative proof or evidence of thecommission of an arrestable offense by the signatory]

PROBATIVE: In the law of evidence. Having the effect of proof;tending to prove, or actually proving. Testimony carrying qualityof proof and having fitness to induce conviction of truth,consisting of fact and reason co-operating as co-ordinate factors.Black's p 1367

[Thus, where a magistrate admits a Notice to Appear as a confessionwithout voluntary giving of evidence, and no proof of corpusdelicti, prima facie and mens rea, and where the magistrate hasinformed the defendant that the matter before the bench is criminalor quasi-criminal prosecution, then there must be a showing readingof Miranda vs Arizona rights 1966, 384 US 436, 444 rule]

[Remember, vehicle code considers stops as arrests. The issuing ofthe notice constitutes 'constructive custody' had by the court whena promise was made to appear]

[Repeat. If you ask the magistrate what is the nature of yourappearance and the procedure before him, he will inform you that iscriminal or quasi-criminal, thus due process criminal prosecutionmust be observed from the moment of the original stop and arrest,which was custodial, because you were denied the right to continueto enjoy your liberty to leave]

VOL 1 CHAPTER 12 - 38PAGE 225

MIRANDA RULEPrior to any custodial interrogation; that is questioning initiatedby law enforcement officers after a person is taken into custody orotherwise deprived of his freedom in any significant way, theperson must be warned:(1) The he has a right to remain silent;(2) That any statement he does make which may be used as evidenceagainst him;(3) That if he cannot afford an attorney, one will be appointed forhim prior to any questioning if he so desires.

Unless, and until these warning or a waiver of these rights are

demonstrated at the trial, no evidence obtained in theinterrogation may be used against the accused.Miranda vs Arizona 384 US 436, 444, 478, 479;86 S. Ct. 1602, 1612;16 L ed2d 294

[So, at the time of the stop, and you have asked the cop(quasi-cop) if he is arresting pursuant to Vehicle Code or PenalCode, whichever he informs you, demand that your Miranda rights beread to you]

[Repeat. It is the author's opinion that an arrest is an arrestunder either code, and demand that he not only read the Mirandarights, but that you be given a copy with his signature that he didread you your rights, COPS LIE!]

[Repeat. On the issue of notices to appear being extra-judicialconfessions]

VOL 1 CHAPTER 12 - 39PAGE 226

"But, even if we assume against the prisoner that, besides his ownextra-judicial confessions, there was evidence given at the trialtending to prove the corpus delicti, the instructions asked wouldnot, for that reason, be less pertinent, nor would it be of lessimportance that the jury should be instructed that his guilt couldnot be established alone by his extra-judicial statements orconfessions"People vs Thrail 50 Cal 414 (1875)

"The rule is clearly established in this state that theextra-judicial statements, or admissions of the commission of acrime charged him, are insufficient to establish the existence ofany substantive or essential element of a crime charged against thedefendant....The Corpus Delicti consists of the elements of thecrime"People vs Quarez (1925) 196 Cal 404, 408-409People vs Simonsen 107 Cal 346People vs Vertees 169 Cal 404

[Here is corpus delicti explained]

"The rule of proof of corpus delicti requires that the elements ofthe crime must be established before admissions or confessions of

a defendant may be admitted in evidence. The required evidence is: (1) the injury, loss, or harm, and (2)that the criminal agency was the cause. The preliminary proof neednot be beyond reasonable doubt, but only a slight or prima facieshowing is necessary"People vs Wong (1973) 35 CalApp3d 812, 839

[So. Cause the magistrate to make a clear, unmistakable (cont)

VOL 1 CHAPTER 12 - 40PAGE 227

(cont) claim that the proceedings are not civil, but mostassuredly criminal in nature, on the record of the case filed withthe Court Clerk]

[Addendum. When you sign the notice, cross out "Without admittingguilt" and print, "NOT GUILTY", and on your appearance atarraignment, be sure to ask the court room clerk or the bailiff fora copy of "ADVISEMENT OF RIGHTS AND CERTAIN COURT PROCEDURES, butpreferably a copy of LEGAL RIGHTS. Sign it 'no waiver of rights',and when you stand before the bench inform the magistrate that youneed to have your legal rights read to you on the record, so thatyou will be certain that you understand them, and also a copy ofthe verified complaint be given you, and that the magistrate readthe charges (not mere cites from Vehicle Code in the Notice toAppear) as you do not understand them]

s40300 VC Application of Chapter Article 1 ArrestsThe provisions of this chapter shall govern all peace officers inmaking arrests for violations of this code, without a warrant, foroffenses committed in their presence, but the procedure prescribedherein, shall not otherwise be exclusive to any other methodprescribed by law for the arrest, and prosecution of a person foran offense of like grade.

[Here is the knowledge that a mala prohibita violation must beprocessed the same as a mal in se violation from the words of thecode itself]

PAGE 228

CITIZEN'S LAW REVIEWPublisher Public Interest School of LawVOL 1 ISSUE 6 - 1992

HAVE YOU BEEN CHARGED WITH DRIVING WITHOUT A LICENSE?

The following is what is known as a 'so what' defense; yes, Iwas driving without a chauffeur/driver license, 'so what!', no lawexists which can command me to have a license while using thecommon highways for personal travel, pleasure, transportation orbusiness, or while engaged in a legitimate business for profit .

In the RED BOOK, the string of argument is that where a man isnot engaged in a business activity for compensation, there is noneed for a chauffeur/driver license by an individual.

That police power exists to license an activity only when theactivity is unlawful under common law, i.e.., selling alcoholicbeverages. Thus, author alleges that so long as the right to engagein a business, which is a commercial activity, exists, then whenengaged in a lawful business/occupation, then the man has the rightto engage in commerce, that commerce itself can be regulated, butthe individual so engaged cannot be regulated or controlled by alicense, which may only be required for acts which are for thebenefit of general public by the dedication of one's property tothe benefit of the general public.

Without the dedication, then one is only pursuing a livelihoodby performing a service in commerce, as the means by which one'sproperty remains private, thereby no obligation to the generalpublic, but only to the individual member of the general public,one is serving, thus, any obligation thereby is only the subject ofcivil litigation between private litigants.

Remembering that the legislature has no police power, andprivate statutory enactments are without police power as they areprivate, in nature, such as Vehicle Code, and your pursuit of alegitimate pursuit; let's turn to the law and be educated as toyour right to use the public highways, and your private automobilefor legitimate compensation by servicing another individual.

"The right of a citizen to engage in a business that isinnocent and useful is constitutionally protected (Whitwell, In re98 C 73, 32 P 870), and neither the legislature (Whitwell & LaurelHill etc. vs San Francisco 152 C 464, 93 P 70 affd 216 US 358, 54Led 515, 30 S Ct; Foley In re 172 C 744, 158 P 1034; Mares, In re75 CA2d 798, 171 P2d 762), nor the governing body of a city orcounty (McCoy In re 98 CA 116, 101 P 419) may, under the guise ofprotecting the public interest, arbitrarily interfere with private

business, or impose unusual or unnecessary restriction of lawfuloccupations. The procuring of licenses may not be required, asmeans of prohibiting any avocation that is not injurious to thepublic morals, offensive to the senses, or dangerous to the publichealth and safety; nor may conditions by annexed to their issuancethat would tend to such a prohibition (Whitwell In re supra; Sonaravs Crutin 137 C 583, 70 P 674)

"The right to prohibit the sale or traffic in intoxicatingliquor, is entirely separate and distinct from the power toregulate and impose a license tax, thereon, for revenue purposes,and an ordinance which in terms proceeds under the latter power,but in effect amounts to an exercise of the former, cannot stand"Merced County vs Fleming 111 C 46, 43 P 392

Thus, where there is no power to regulate the individual manin the pursuit of happiness, and a legitimate livelihood, then the(cont)

PAGE 229

(cont) use of the license fee to obtain revenue, cannot standwhere it can only exist under the power to regulate.

"The principle limitation on the exercise of power to licenseis that a legitimate business may not be subjected to oppressive,or unjust discriminatory burdens (Guerrero In re 69 C 88, 10 P 261;Pacific etc. vs Conrad 168 C 91, 141 P 916) Indeed, a state cannotexclude a person from any occupation in a manner, or for reasons,that contravene the due process or equal protection clauses ofFourteenth Amendment of the United States Constitution. (Endler vsSchutzbank 68 C2d 162, 65 CalTptr 297, 436 P2d 297)

Let's exhaust WHITWELL, which is so pertinent to the issue ofno licensing of the individual, when the respondent in that caseargued that licensing is a legitimate police regulation:

Quoting the court in WHITWELL: "The police power-the power tomake laws to secure the comfort, convenience, peace & health of thecommunity-is an extensive one, & in its exercise a very widediscretion as to what is needful, or proper for that purpose, isnecessarily committed to the legislative body in which the power tomake such laws is vested (Ex parte Tuttle 91 Cal 589) But, it isnot true that when this power is exerted for the purpose ofregulating a business or occupation, which in itself is recognized

as innocent and useful to the community, the legislature is theexclusive judge as to what is a reasonable and just restraint upona constitutional right of the citizen to pursue such business orprofession. As the right of the citizen to engage in such businessor follow such a profession is protected by the constitution, it isalways a judicial question whether any particular regulation ofsuch right is a valid exercise of the legislative power (Tiedeman'sLimitation of Police Power ss 85, 194 State vs Jersey City 47 NJL286; Commonwealth vs Robertson 5 Cush 438; Austin vs Murray 16 Piek121) This principle is stated very forcibly in the case of (Muglervs Kansas 123 US 661), in the following language;" "The courts arenot bound by mere forms, nor are they to be misled by merepretenses. They are at liberty, indeed are under solemn duty, tolook at the substance of things whenever they enter upon theinquiry, of whether the legislature has transcended the limits ofits authority. If, therefore, a statute purporting to have beenenacted to protect the public health, the public morals, or thepublic safety (here think vehicle code, inserted by author), has noreal or substantive relation to these objects, or is palpableinvasion of rights secured by the fundamental law, it is the dutyof the courts to so adjudge, and thereby give effect to theconstitution"

And so, in the (Matter of Jacobs 98 NY 108; 50 Am Rep 636,Earl J.) in delivering the opinion of the court in that case, saidin relation to the power of the legislature to make policeregulations: "The limit of the power cannot be accurately defined,and the courts have not been able, or willing definitely tocircumscribe it. But, the power, however, broad and extensive isnot above the constitution. When it speaks its voice must beheeded. It furnishes the supreme law and guide for the conduct oflegislators, judges and private persons, and so far as it imposesrestraints, the police power must be exercised in subordinationthereto."

And this necessary limitation upon the power of thelegislature to interfere with the fundamental rights of thecitizens in the enactment of police regulations was recognized bythis (cont)

PAGE 230

(cont) court in (Ex parte Sing Lee 96 Cal 354), in which case, wesaid that the personal liberty of the citizen and his rights ofproperty cannot be invaded under guise of police regulation

Unquote.

"So long as one uses his property for private purposes anddoes not devote it to public use, the public has no interest in itand no voice it its control." (Assoc. Pipe vs Rail Road Comm 176Cal 518)

"The Constitution found it (commerce) an existing right, and(Gibbons vs Ogden 9 Wheaton 1, 211) it gave to Congress the powerto regulate it"

The citizen's rights in commerce do not come from theConstitution. They existed before the Constitution was written, andas Chief Justice Marshall pointed out, the Constitution recognizesthat fact. If the right of man to trade is above the Constitution,and the Constitution empowers Congress only to regulate commerce,by no sound reasoning can the conclusion be reached that Congresscan stop commerce.

Mugler vs Kansas supra: "It does not follow that everystatute, enacted ostensibly for the promotion of these ends, is tobe accepted as a legitimate exertion of the police powers of theState. There are, of necessity, limits beyond which legislationcannot rightfully go. While every possible presumption is to beindulged in favor of the validity of the Statute, the courts mustobey the Constitution, rather than the law making department ofgovernment and must, upon their own responsibility, determinewhether, in any particular case, these limits have been passed."

So, although Congress and the Legislatures of the States mayregulate commerce, that regulation cannot demand franchises,licensing, permits required of the Man, so engaged, as rightscannot be licensed where a right exists, other than by thevoluntary act by the Man.

REGULATE: The power of Congress to regulate commerce is thepower to enact all appropriate legislation for its protection oradvancement; to adopt measures to promote its growth, and insureits safety; to foster, protect, control and restrain. (Virginiaetc. vs System etc. 84 F2d 641, 650)

Thus, State and Congress may regulate the commercial activityof the trafficker, manufacturer, dedicated property, i.e. seatbelts, safety features in a manufacturer's products; regulate thefood processor, drug manufacturer, etc., for the safety of the

public, or those who have an effect on the morals of the public,but that is done by licensing/franchising/incorporation, but notthe individual functioning as a private man/individual to serveanother man/individual while so doing to earn a livelihood, whichdoes not endanger the public etc.

VOL 1 CHAPTER 13 - 1PAGE 231

PENALTY FOR VIOLATIONS OF VEHICLE CODE, AS ENACTED BY THELEGISLATURE OF THE STATE, ARE INFLICTED WITHOUT CONVICTION IN THEORDINARY COURSE OF JUDICIAL PROCEEDINGS. AS VEHICLE CODE INFLICTSA MILDER DEGREE OF PUNISHMENT THAN THAT OF DEATH IT IS CALLED A"BILL OF PAINS & PENALTIES" BILL OF ATTAINDER. Black's 4th p 162

"Bills of attainder" as they are technically called, are suchspecial acts of the legislature as inflicts capital punishment uponpersons supposed guilty of high offenses, such as treason andfelony, without any conviction in the ordinary course of judicialproceedings. If an act inflicts a milder degree of punishment thandeath, it is called a 'bill of pains and penalties', but both areincluded in the prohibition in the federal constitution"Losier vs Sherman, 157 Kansas 153, 138 P2d 272, 273;State vs Graves, 352 Mo 1102, 183 SW2d 46, 54

Black's 4th. In the United States, the doctrine of attainder is nowscarcely known, although during and shortly after the Revolution,acts of attainder were passed by several of the states. The passageof such bills is expressly forbidden by the constitution.

Attainder differs from conviction, in that it is 'after' judgment,whereas conviction is upon verdict of guilty, but 'before' judgmentpronounced.....The consequences of attainder are forfeiture ofproperty.

FORFEITURE: "To incur a penalty; to become liable to the payment ofa sum of money, as the consequence of a certain (cont)

VOL 1 CHAPTER 13 - 2PAGE 232

(cont) act"Sands vs Holbert 93 W Va 574, 117 SW 896, 899;Ford vs Ellison 287 Mo 683, 230 SW 637, 640

"Something to which the right is lost, by the commission of a crimeor fault, or the losing of something by way of penalty"Ridgeway vs City of Akron, Ohio App 42 NE2d 724, 726

Note. 8. The incurring a liability to pay a definite sum of moneyas the consequence of violating the provisions of somestatute.........Note. 9. A ...... of sum of money forfeited. Something imposed asa punishment for an offense.........

FINE: Criminal Law, A pecuniary punishment imposed by law by atribunal upon a person convicted of misdemeanor.Black's 4th p 759

[That part of the California Commercial Vehicle Code, which grantsthe power to the Department of Motor Vehicles, to define certainviolations of the code as misdemeanors, and to impose penalpenalties by a non-judicial civil special proceedings isunconstitutional, and cannot be enforced under the Constitution ofthe United States or California Constitution]

Constitution of the United StatesArticle 1, s9, cl 3:No bill of attainer shall be passed.

California ConstitutionArticle s16No bill of attainer,........shall ever be passed.

VOL 1 CHAPTER 13 - 3PAGE 233

Note. 31 Definition"A 'bill of attainer' is a legislative act inflicting punishmentwithout judicial trial"Dept of Social Welfare of State vs Gardiner (1949) 210 P2d 855, 94CalApp2d 431

"This clause and principle of separation of powers are intendedonly as protection for individual persons, and private groups,those who are peculiarly vulnerable to non-judicial determinationsof guilt." State vs Katzenback, SC 1966, 66 S Ct 803; 383 US 301

[Department of Motor Vehicles has no judicial powers delegated toit by Statute, 1959, Vehicle Code. It may not impose fines or

incarcerate individuals within its jurisdiction, but persons, classof persons, are subject of non-judicial determinations of guilt, bya magistrate of a municipal tribunal sitting as an 'arm' forenforcement of Vehicle Code, which are by summary procedure andsummary judgment]

"Bill of attainer clause not only was intended as oneimplementation of general principle of fractionized power, but alsoreflected framer's belief that the legislative branch is not wellsuited, as politically independent judges and juries, to task ofruling upon blameworthiness of, and levying appropriate punishmentupon, specific persons" US vs Brown, Cal, 1965, 85 S Ct 1707, 14 L Ed2d 484

[Legislature has permitted the Department of Motor Vehicles todelegate, to magistrates of corporate municipal tribunals (cont)

VOL 1 CHAPTER 13 - 4PAGE 234

(cont) (courts), the authority to sit as administrative hearingofficials for it, and by summary procedures initiated by civilnon-judicial notices to appear, make a summary judgment, and toimpose fines and assessments and impose county jail sentences.Summary procedures are non-judicial, in nature, and operate withoutthe usual protection guaranteed under the 4th & 5th Amendments ofFederal Constitution and are heard by a quasi-criminal procedure]

[Procedure in summary proceedings is governed by the provisions ofthe statute. The proceedings are not intended to be carried on inthe formal manner in which ordinary actions are prosecuted. But,such a procedure by a party pursuing that remedy, must bring hiscase strictly within the requirements of the statute]

[In summary proceedings, although defendant must be notified orsummoned to appear, the process or notice need not satisfy therequirement of formal summonses, and so it has been stated that asummary proceeding ordinarily implies one begun without summons orsupena]

"A 'summary proceeding' is not an action, though analogous to itspurpose and scope, it is special proceeding. Properly speaking,therefore, there can be no judgment in summary proceedings, thoughthe final order entered is frequently referred to as a judgment,and is in effect a judgment"

Seymour vs Hughs, 105 NYS 249, 250

[Thus, summary procedure is not judicial trial, and any judgment,in effect, is not a judicial judgment, and any (cont)

VOL 1 CHAPTER 13 - 5PAGE 235

(cont) penal penalty is punishment by pain & penalties]

"Legislatures may act to curb behavior which they regard as harmfulto public welfare, whether such is found to be engaged in by manypersons or by one, and so long as the incidence of legislation issuch that persons who engaged in regulated conduct, by they many orfew, can escape regulation merely by altering the course of presentactivities, there may be no complaint of attainer"Communist Party vs Control Brd, 367 US 1, rehearing denied 368 US871

"Principle on which this clause is based, the notion that personshave a right to fair warning of that conduct which will give riseto criminal penalties, is fundamental to our concept ofconstitutional liberty, and, as such, that right is protectedagainst judicial action by due process clause of Amend. 5"US vs Brown, Ca Geo 1977, 555 F2d 407, rehearing denied 599 F2d 29,Cert denied 98 S Ct 1440, 435 US 904

[In California, all individuals are told by peace officers, andmagistrates of municipal tribunals, that it is a privilege to usethe common highways of the state for personal business, pleasure,transportation of private goods, or family benefit, merely becausethey use a motor drawn vehicle as mode of conveyance without theregistration of that conveyance, and a license fee/tax paid, andthe granting of a Driver's License by the Department of MotorVehicles]

[Thus, fair warning is denied the individual that, in fact, (cont)

VOL 1 CHAPTER 13 - 6PAGE 236

(cont) only the individual engaged in commercialenterprise/activity/business, dedicated and conducted for thebenefit of the public, is within the jurisdiction of the Department

of Motor Vehicles and under supervision of the Vehicle Code]

[In California, the individual cannot escape, by altering hiscourse of conduct to avoid the prosecution under Vehicle Code byDepartment of Motor Vehicles, as even when he uses the commonhighways for personal travel, business, transportation and businessbetween private parties, and are parties outside the jurisdictionof statute and its code and administrative agency, he/they areprosecuted by summary procedure and summary judgment but, bydeceit, misrepresentation, fraud are told that all violations underVehicle Code are Criminal actions, and alleged violators appearbefore a magistrate by a Case Number entitled People of the Stateof California vs John/Jane Doe. Thus, grounds lie for an action formalicious abuse of process by an unconstitutional Bill of Attainder(bill of pains & penalties), as individuals are being prosecutedseeking criminal penalties by non-judicial actions without theprotection of the 5th Amendment, which limits the way in which aperson may be prosecuted]

[Thus, the legislature has created a form of statute, whichspeaking on its own behalf and acts on behalf of the legislature,as judicial function or more simply expressed, trial by thelegislature]

"Legislative acts, no matter what their form, that apply......insuch a way as to inflict punishment without judicial (cont)

VOL 1 CHAPTER 13 - 7PAGE 237

(cont) trial, are 'bills of attainder' (bill of pains &penalties)"US vs Lovett 328 US 303, 90 L Ed 1252

VOL 1 CHAPTER 14 - 1PAGE 238

ALTHOUGH ALL MATTERS OF VEHICLES CODE WHEREIN A VIOLATION ISALLEGED ARE NOT MALA IN SE, BUT IN FACT MALA PROHIBITA MUNICIPALCOURT MAGISTRATES STATE THAT THE BEFORE THEM IS A CRIMINALPROSECUTION, MALA IN SE.

[Thus, the court would have the defendant believe that he is in ajudicial court at law, not true]

2 Am Jur2d s779. Administrative jurisdiction as excluding judicialjurisdiction.

Unless there is a clear indication of a contrary legislativeintent, (17) if the legislature provides a remedy before anadministrative agency which meets the demand of due process of thelaw (18), and does not invade the constitutional jurisdiction of acourt, a court may be deemed to have no jurisdiction in thepremises. Administrative agencies and their departments have beenheld to have exclusive original jurisdiction of particular matter,which precludes an original action in court in regard to suchmatters, (20) particularly where the statute provides for 'finaland conclusive' action by the administrative agency. (1) Thisprinciple is not limited to remedies in relation to rights createdby the statutes empowering the administrative agencies, but appliesas well, to 'common law rights' protection or endorsement, ofwhich, is confided to the administrative tribunals. (2)(17) Union P R Co vs Price 360 US 601, 3 L ed2d 1460Holding that action at law was precluded by prior choice ofadministrative remedy.(18) Sunshine Coal Co vs Adkins 319 US 381, 84 Led 1263

VOL 1 CHAPTER 14 - 2PAGE 239

Where Congress has created a special administrative procedure forthe determination of the status of persons or companies under aregulatory act, and has prescribed a procedure which meets allrequirements of due process, that remedy is exclusive.

[Remember, any act of Congress as to constitutional rights to dueprocess of law, administrative or at law, is binding on the statesby the Fourteenth Amendment, so don't let the magistrate bluff youthat this is an exclusive state issue]

(20) Pennsylvania R. Co vs Day 360 US 543, 3 L ed2d 1422Retirement of an employee did not effect the board's exclusivejurisdiction to interpret a labor agreement.

[Hypothetical. A person/individual was a licensee, but after thenotice to appear that individual surrendered the privileges of thelicense, but the magistrate is going to permit prosecution on theground that the violation was committed before the surrender of thelicense. That individual is still entitled to a final determinationand remedy by an administrative hearing by Department of Motor

Vehicles]

(1) First Moon vs White Tail 270 US 243, 70 Led 565(2) Erie R Co vs Stewart Furnace Co 17 Ohio App 335Common law recognizes a right..........

[Magistrate cannot engage in any action before it which woulddeprive the individual of administrative remedy which recognizescommon law rights as must the magistrate sitting for the agency andas the magistrate must when he falsely states the proceedings aremala in se, criminal action]

VOL 1 CHAPTER 14 - 3PAGE 240

"A court cannot engage in any action which deprives a party beforeit his constitutional rights. It has long been recognized that itis a proper function of courts to act as check on improper use ofboth executive and legislative powers"Powell vs McCormick 395 US 486

In Powell, the Court quoted Kilborn vs Thompson 103 US 168 as itsauthority:"Especially is it competent and proper for this court to considerwhether proceedings are in conformity with the constitution andlaws (statutory enactments are law as to the class identified inthe statute, but only as to that class) because, living under awritten constitution no branch or department of government(Department of Motor Vehicles) is supreme; it is the province andduty of judiciary in cases regularly brought before them, whetherpowers of any branch of government have been exercised inconformity to the constitution; if they have not, to treat theiracts as null and void"

[Regularly brought before them means, at law of due process thatthe court has proper/competent subject matter jurisdiction andpersonam]

[So, use the estoppel power available to you, remembering first,that the matter must have been properly and competently broughtinto the jurisdiction of the court,and that a notice to appear doesnot, but if the magistrate asserts, and I would demand that he doit in writing, under (cont)

VOL 1 CHAPTER 14 - 4

PAGE 241

(cont) oath, that the magistrate has jurisdiction by a mere civilextra-judicial notice, then ask for a continuance. With thecontinuance, you will have time to file Form 372, and there afterif the magistrate refuses to dismiss, the Form 373 for a writ ofprohibition with the Superior Court of the County]

[Although the author has done his best to educate the reader on howto proceed, necessarily he can do no more than put you on theproper road and direct you to the local law library for details asto your personal case]

ADDENDUM"When that statute, as in Vehicle Code, grants quasi- judicialpowers to the agency, and that power is used to act and its actsare particular and immediate, a person enjoying the licensedprivileges granted by the agency, also assumes obligations andliabilities of the privilege, and where a person whose rights orproperty may be affected by an action of the agency enforcingVehicle Code, that person is entitled to notice and hearing ofaccusation and notice to defend"Calif' Fascination vs Hoover 246 P2d 656Andrews vs State Brd 267 P2d 352

PAGE 242

ARTHUR FRANK SANFORD5984 Villa DriveRancho Cucamonga, CA

Demandant

DEPARTMENT OF MOTOR VEHICLES2451 First StreetSacramento, CA

ATTENTION: A.A. Pierce, Director

ARTHUR FRANK SANFORD, DEMAND FOR 'FORMAL' Demandant, ADMINISTRATIVE HEARINGNotice to Appear No. TO ESTABLISH RECORD FORAgency:

REVIEW; ADJUDICATION ANDOfficer: DECLARATORY JUDGMENTArea: ON ADMINISTRATIVE RECORD

Held, that the constitutionality of an agency's procedure may bechallenged in a judicial reviewing court, without first challengingin the agency, and without first exhausting administrative remedieson the questions(Mathews vs Eldridge, 424 US 319 (1976),

However, demandant believes that,because it is a sharp departure from previous law, and in certainrespects, contrary to the clear words before it, that he willexhaust administrative remedies, as the historical holdings areclearly cut as to demanded procedure.

Administrative exhaustion is demanded where constitutionalchallenge is to the statute as applied by the agency. (Matters vsCity, 219 NW2d 718)

Where the challenge is to the statute as administered, theexhaustion requirement does serve a useful purpose. The courtsshould not rule that a statute is unconstitutionally administeredwhen the available avenues of administration have not been explored(Metcalf vs Swank, 444 F2d 1353, 1357 (7th Cir 1971), vacated onother grounds, 406 US 1114 (1972)

When determination of the constitutional issue depends (cont)

PAGE 243

(cont) on factual determinations, they should be made first by theadministrative officials who are especially equipped to inquire, inthe first instance, into the facts. (Roadway Express vs Kingsley,179 A2d 729, 732)

HISTORY OF CASE DEMANDS ADMINISTRATIVE HEARING

An immediate hearing is vital on this matter as the demandant hasbecome an aggrieved person suffering legal wrongs, noadministrative hearing record of facts of the matter for review, orissues for review are extant; demandant has not been heard and

exhausted, people have not exhausted, and yet the people areproceeding without 'exclusive record of hearing' asking vehiclecode enforcement where the demandant is not a common carrier,without allegation or presentation of facts that he was engaged incommon carriage at the time of the 'traffic stop'.

Before a matter may be reviewed, a record of the hearing and theruling must be established on the record of the administrativeagency, for review by the agency is nothing more than an appellateprocedure for a final determination by the agency.

Procedure to be followed is outlined within Government Code, Title2, Div. 3, Chapter 5, Administrative Adjudication Gov C. 11500 -11528 Upon final appeal by the agency the matter may be moved fora review by judicial court.

The basic principle is that review is limited to the agency record(US vs Bianco, 373 US 709, 715) "The review shall be confined tothe record" More recent cases applying the principle are (Interiorvs Rogers, 522 P2d 164 (1974); Lellis vs Archie, 516 P2d 469, 471(1973); Helland vs Civil Service, 519 P2d 258, 260 (1974) (cont)

PAGE 244

(cont) defendant, in error, demand for a hearing.

Guy GardnerDefendant, in error.

MEMORANDUM OF POINTS AND AUTHORITIES

In Austin vs Department of Motor Vehicles, Court of Appeal, Case No037357, Superior Court No 309327, Court of Appeal, first AppellateDistrict, Division Two held "(a) request for Formal Hearingoperates to stay proceedings"

"A court cannot engage in any action which deprives a party beforeit of his constitutional rights. It has long been recognized thatit is a proper function of courts to act to check on improper useof both executive and legislative powers"Powell vs McCormack 395 US 486 citingKilborn vs Thompson 103 US 168 to whit;

"Especially is it competent and proper for this court to considerwhether proceedings are in conformity with constitution and laws,

because, living under a written constitution, no branch ordepartment of government is supreme; it is the province and duty ofjudicial and administrative departments, in cases regularly broughtbefore them, whether powers of any branch of government have beenexercised in conformity to the constitution; if they have not, totreat their acts as null and void"

PAGE 245

Evidence may not be received by the reviewing court, even if it waswrongfully excluded by the agency, or is newly discovered evidence.If the court feels that such evidence should be heard, it shouldremand the case for it to be received before the agency.

Not only is review restricted to the administrative record, it isalso limited to the issues raised before the agency. Both orderlyprocedure and good administration require that objections to agencyproceedings be made while the agency has the opportunity forcorrection (US vs Tucker, 344 US 33, 37). Any issue not raised atthe administrative level may not be considered on review.

A reviewing court usurps the agency's function when it sets asidethe administrative determination upon a ground not theretoforepresented, and deprives the agency of an opportunity to considerthe matter, make its ruling, and state the reasons for its action(Unemployment vs Aragon, 329 US 143, 155 (1946) The Supreme Court has been strict in applying this principle, sinceit has felt that it is as essential to the effective operation ofthe administrative agency process as it is to that of the trialcourts.

Freedom to save issues until review would be as destructive ofagency autonomy, as freedom to withhold evidence at theadministrative level, and then to introduce it in a judicialproceeding (373 US 717)

An administrative agency is a creature of statute (Soriano vs US,494 F2d 681, 683, (9th Circuit 1974) As a corporation is to itscharter, the administrative is to its enabling legislation. Thismeans that the basic doctrine of administrative law, as ofcorporate law, is the doctrine of ultra vires. The jurisdictionprinciple is the root principle of administrative power. Thestatute is the source of agency authority as well as its limits. Ifan agency act is within the statutory limits (vires), it is valid.

If it is outside them (ultra vires), it is invalid. No statute isneeded to establish this; it is inherent in the constitutionalpositions of agencies and courts (Stark vs Wickard, 420 F2d 592)

Thus, when court sits as 'administrative agency (cont)

PAGE 246

(cont) hearing officer' for administrative regulations enforcementpurposes, it wields the power of the agency vires. However, whena court sits for a particular agency, ultra vires, an agencywithout jurisdiction subject matter or person, it is bare of power,a sham court which proceeds at its own peril.

DEMAND FOR ADMINISTRATIVE HEARING

An immediate hearing is vital on this matter as the demandanthas become an aggrieved person, suffering legal wrongs anddeprivation of the protection of his constitutional rights, and anyadministrative rights he may have when he is not within theirjurisdiction. No administrative hearing of the case noticed on this demandhas been held, or is part of the administrative record for anadministrative review or issue of mandamus. Defendant has not been heard and his remedies exhausted, andpeople have not filed an accusation with the agency, and thusobviously, their intent is to by-pass the agency, to the detrimentand harm of the demandant, and to the denigration of the agency,and its primary jurisdiction.

A government agency wants jurisdiction to directly affect a personor any subject matter related to his person (Wilson vs US; US vsTexas; Murdock vs Pa.), and may not haul any natural person intoany administrative forum without his voluntary assent, (voluntarybeing fully knowing, intentional), subscription to a particular'regulatory scheme' (Wickard vs Filburn, USSC, 1942), it isimpossible to prove jurisdiction exists absent a substantial nexuswith the state, such as voluntary subscription to license. Alljurisdictional facts supporting the claim that the supposedjurisdiction exists must appear on the record of the court (PipeLine vs Marathon 102 S Ct 2858; quoting Crowell vs Benson, 285 US22)

Therefore, this demand that the 'dept' notice a (cont)

PAGE 247

(cont) hearing for the demandant within thirty days of the mailingof this demand.

BY A FAILURE TO HEAR MATTER WILL BE COLLATERALLY ESTOPPED

If agency fails to respond, and thus, stand silent on the demandfor a hearing, and to provide remedy to the demandant, Doctrine ofCollateral Estoppel will prevail.

The failure of the agency to grant hearing, bars civilliability or criminal prosecution for actus reas later under theCollateral Estoppel Doctrine, as Administrative Law demands, arethe administrative equivalent of judicial Declaratory judgment, andall Natural Law requirements and indicia that apply to JudicialDeclaratory Judgments also apply to Administrative Judgments.Babcock vs Babcock, 63 CA2d 94;Maxwell vs Maxwell, 66 CA2d 549

That failure to hear, estopps a magistrate from presiding overcriminal charges pursuant to statutory penalties, where issues wereoffered to be settled, and should have been settled, in the lesser executive administrative forum offering remedy. Thisdoctrine is found as a consistent pattern of rulings throughout theUnited States Supreme Court rulings.

Submitted,

Arthur Frank SanfordDemandant

PAGE 248

Instructions:The following Memorandum of Points and Authorities are not to bemailed with the Demand. It will be used at the time of the hearing.Everything else goes with the demand. Be certain that you Demand isaccompanied with a Declaration of Mailing, and when you Demand isfiled with whomever, a copy of the mailing of service is included.

PAGE 249

MEMORANDUM OF POINTS AND AUTHORITIES

A COURT CAN ONLY BE DELEGATED TO SIT AND HEAR THE RECORD FOR THEDEPARTMENT OF MOTOR VEHICLES WHERE THE 'DEPT' ITSELF HASJURISDICTION OF SUBJECT MATTER/PERSONAM

"An administrative agency it a creature of statute (Soriano vs US,494 F2d 681, 683 (9th Cir 1974)

As a corporation is to its charter, administrative agency isto its enabling legislation. This means that the basic doctrine ofadministrative law, as of corporate law, is the doctrine of ultravires. The jurisdiction principle of administrative power. Thestatute is the source of agency authority, as well as its limits.If an agency is within the statutory limits (vires), it in valid. If it is outside them (ultra vires), it is invalid. No statute isneeded to establish this; it is inherent in the constitutionalpositions of agencies and courts (Stark vs Wickard, 420 F2d 592)

Where a person is not, at the time, a licensee for theparticular agency, his license having expired, and he not havingasked for its renewal, neither the agency nor any other officials,has jurisdiction of said person to consider or to make any orderOne ground as to the jurisdiction, was that accused was not alicensee, and it is not claimed that he was. His license hadexpired and he had not asked its renewal. (O'Neil vs Dept Prof andVocations, 7 CA2d 398; Eiseman vs Daugherty, 6 CA 783)

There was no allegation that demandant was licensed under anyact (in fact it was stated that he did not have a license). Thelicense was not offered in evidence. But assuming the accusationwas sufficient, evidence failed to prove demandant came within itslimitations. (King vs Bd Med Exam, 65 CA2d 644)

Assuming demandant was a licensee, (dept) has no authorityto....enforce any licensee unless he is acting for compensation.Such an act is highly penal in its nature, and should not beconstrued to include anything which is not embraced within itsterms. There is no charge in the (notice to appear) complaint, noevidence to prove the charge, if it were in the complaint, thataccused was employed for compensation. (Schomig vs Keiser, 189 Cal596)

Incompetent action by the agency (Department of MotorVehicles), whether directly or through a court sittingadministerial as hearing officer, must be clearly defined in thestatute before it has subject matter jurisdiction, without such

jurisdiction of licensee, all acts of the agency, by its employees,agents, hearing officers, are null and void. (City vs Pearson, 181Cal 640)

PAGE 250

It is basic in our law that an administrative agency may actonly within the area of 'jurisdiction' marked out for it by law. Ifan individual does not come within the coverage of the particularagency's enabling legislation, the agency is without power to takeany action which effects him (Endicott vs Perkins, 317 US 501(1943)

A government agency wants jurisdiction to 'directly' affect aperson or any subject matter relAted to his person, and may nothaul any natural person into any administrative forum without hisvoluntary assent by subscription to a particular 'regulatoryscheme' (Wickard vs Filburn), and it is impossible to provejurisdiction exists absent a substantial nexus with the state, suchas voluntary subscription, license/contract. All jurisdictionalfacts supporting the claim that the supposed jurisdiction existsmust appear on the record of the court. (Pipe Line vs Marathon, 102S Ct 2858; quoting Crowell vs Benson, 285 US 22)

It is an accepted rule, not only of state Courts, but, offederal courts as well, when a judge is enforcing administrativelaw, they are described as 'mere extensions of the administrativeagency for superior reviewing purposes' for an agency, and so actat their own risk and peril. (30 Cal 596; 167 Cal 762)

Supra: City vs Pearson, where an employee or agency moveswithout jurisdiction, cause of action, deprival of due process oflaw, deprival of constitutional rights, lie.

PAGE 251

HISTORY OF THE CASE

An immediate hearing is vital on this matter as the demandant hasbecome an aggrieved person, suffering legal wrongs and deprivationof the protection of constitutional rights. No administrativehearing record of the facts of the matter for review, or issues forreview are extant. Demandant has not been heard/exhausted, peoplehave not exhausted remedy, and yet the people have proceededwithout 'exclusive record for reviewing procedure' before a court

sitting where the agency was without jurisdiction of the subjectmatter/persona. Agency did not, and could not, accordingly delegateauthority of the particular court to sit with jurisdiction, as thedemandant is not a licensee of the DMV, nor engaged in the activityregulated by 'Dept', that of common carrier.

Where a party (demandant) is without a license, the evidence of acontract, all acts to prosecute for an allegedviolation/breach/misdemeanor of the contract are null and void,unless party was engaged in regulated activity of common carrier.

On March 12, 1985, demandant was given a notice to appear M 084259,quoting certain sections of Vehicle Code, by an informer, one T.Koblick, to wit; 23152a and 125900a VC.

On April 09, 1985, appeared special to inform hearing officer ofhis want of proof of jurisdiction of the subject matter, and theperson of the accused.

Hearing officer entered plea, although without proving hisjurisdiction of the accused, of not guilty.

On May 24, 1985, accused was placed to trial by jury (cont)

PAGE 252

(cont) wanted proof of jurisdiction of the subject or accused. OnMay 28, 1985, accused was found guilty of 12500a and 23152a VC.

A copy of the docket of the unlawful case is attached hereto.

On October 17, 1985, accused filed a notice of appeal, erroneously,with the Superior Court of California, Appellate Department as hehad not exhausted his remedy with the Department of Motor Vehicles,and now is attempting to rectify that error, and, by this demandasks the 'dept' to grant this hearing to set and administrativerecord for review in the judicial courts.

DEMAND FOR HEARING

Therefore, this demand that the 'dept' notice a hearing on thismatter within sixty days (VC s16075 (b) )If hearing is denied, matter at issue will be estopped for anyfurther action by the Department of Motor

Vehicles.

CONCLUSION AND DEMAND

This hearing, for administrative findings, must state reasons,basis, authority, rationale, for its decisions and orders and acts.(In re Sturm 11 Ca3d 258) in the form of a written statement, whichsets forth findings that bridge the analytic gap between raw andevidence, and the decision or order, (Topanga Assoc vs Los Angeles,11 Ca3d 506) in order to assure administrative decision making iscareful, reasoned and equitable. (Farfield vs Ct, 14 C3d 768) Thatthe statement cannot merely relate statutory language, but must berelated to and based on, the record of the facts before the agency(Topanga cited in Sierra Club vs hayward, 28 c3d 840, 860)

Arthur Frank SanfordDemandant

PAGE 253

ARTHUR FRANK SANFORD5894 Villa DriveRancho Cucamonga, CA

Defendant, in error, Sui Juris

MUNICIPAL COURT, WEST VALLEY DIVISIONCOUNTY OF SAN BERNARDINO

PEOPLE OF THE STATE NO. 556888OF CALIFORNIA, NOTICE OF MOTION; MOTION TO DISMISS;Plaintiffs, in error MATTER BARRED BY COLLATERALLvs ESTOPPEL; COURT IS WITHOUTARTHUR FRANK SANFORD JURISDICTION TO HEAR;

Defendant, in error MEMORANDUM OF POINTS ANDSui Juris AUTHORITIES

.................................................................

.................................................................

TO THE CLERK OF THE ABOVE NAMED COURT:

Arthur Frank Sanford, will appear special at the above named court,located at, 8303 Haven Avenue, in Rancho Cucamonga, California, at AM, 1989, at which time he will demand that thecourt dismiss the matter before it, as the district attorney andthis court, are without jurisdiction to proceed as the Doctrine ofCollateral Estoppel bars any action on the case.

On July 22, 1989, defendant filed with the Department of MotorVehicles a DEMAND FOR FORMAL ADMINISTRATIVE HEARING TO ESTABLISH ARECORD AND FOR ADJUDICATION AND DECLARATORY JUDGMENT

See Exhibit "105" attached herein

PAGE 254

Agency as of this date has not responded within the thirty daysnotice given by defendant in error. Time has run out for a hearingand so the failure to respond is an 'exoneration', and matter isnow estopped. Neither district attorney, nor this court, canproceed civilly, in equity, or criminally.

Arthur Frank Sanford

Defendant, in error,Sui Juris

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

BY AGENCY'S FAILURE TO GRANT HEARING ON DEMAND, ALL ACTION ONMATTER IS COLLATERALLY ESTOPPED FROM PROSECUTION BY THE PEOPLEWhen agency stands silent by failure to respond or to grant ahearing, Doctrine of Collateral Estoppel forbids districtattorney/city attorney/county counsel/attorney general, from filing

complaint with a court sitting to hear a civil action or courtsitting judicially for any criminal action.

The failure of the agency to grant a hearing bars civil liability,or criminal prosecution for actus reas later under the Doctrine ofCollateral Estoppel, as Administrative Law demands for hearing arethe administrative equivalent of judicial Declaratory Judgment, andall Natural Law requirements and indicia that apply to JudicialDeclaratory Judgment also apply to Administrative Judgments. (cont)

PAGE 255

(cont)Babcock vs Babcock, 63 CA2d 94;Maxwell vs Maxwell, 66 CA2d 549

Where an administrative agency has quasi-judicial power to hear andrule to a final determination on matters within its jurisdiction,and does so, then; "The conclusiveness of judgment in a prior action, wheresubsequent action is upon different cause of action, is barred bydoctrine of collateral estoppel"Babcock vs Babcock, supra

Where an administrative agency has no jurisdiction of matter orissue outside its delegated authority, it stands silent on thedemand for hearing, or refuses to grant one because of that want ofjurisdiction, the matter is barred by Collateral Estoppel Doctrinefrom a subsequent action on the same matter or issue.

A recent case, Gonzalez vs Municipal Ct, 87 Daily Journal D A R,8930, the Court of Appeal, and here defendant takes the positionthat a 'no grant of hearing for want of jurisdiction is the same asan exoneration', the court cited Peo vs Sims, 32 CA13d 468 (1982),which ruled that Doctrine of Collateral Estoppel bars a criminalprosecution by administrative hearing by the agency; and in thecase before it, 'Gonzalez', held that 'Sims' decision compelledruling collateral estoppel barred district attorney action.

" In this case we address a facet of the collateral (cont)

PAGE 256

(cont) estoppel effect of administrative proceedings in subsequentcriminal prosecutions. The issue before us is whether a ruling in

a driver's favor, in administrative proceeding of the Department ofMotor Vehicles, should be accorded collateral estoppel insubsequent criminal prosecution .............We conclude undercontrolling authority, People vs Sims (1982) 32 Cal3d 248, Theanswer is yes"

"Held, administrative orders or determination are unassailable,except for fraud, mistake, or lack or failure of jurisdiction" US- Consolidated vs Siggans 99 F. Supp. 151 "........and theyprecluded subsequent inquiry by the court into questions which havebeen decided" US - Hecox vs Pullman Co., DCf Wash., 85 F. Supp.740

In the case of Vary vs Department of Motor Vehicles, Superior CourtNo. N31940, Court of Appeals, 4th App District, Division One, citedin 88 Daily Journal, DAR 7519, the appellate court cited Rohrabaservs Lederer (1986) 179 CA3d 290, 297, which said: "A judgment in aprevious action, between the same parties or those privity withthem, operates in a later action as conclusive adjudication as tothe issues actually, and necessarily decided in a first action"

"In order for the doctrine of collateral estoppel to apply, theissue in the second action must be identical to the issueadjudicated in the first action" (cont)

PAGE 257

(cont) In re Marriage of Modnick (1983) 33 Cal3d 879, 904

Defendant has exhausted administrative action and remedy, which mayhave been available to him, and so if district attorney wishes, hemay take the Department of Motor Vehicles to an appellate court fora review of the record set by the Department of Motor Vehicles.

If the court denies this motion for dismissal, and permits thedistrict attorney without jurisdiction, to prosecute defendant,court will place the defendant into a position of 'double jeopardy'in permitting district attorney to petition the court for a trialon the same issue adjudicated by the agency with primaryjurisdiction. California Constitution, Article 1, s13

Double Jeopardy:No person shall be twice put into jeopardy for the same offense.

Caveat: The district attorney has failed to pursue the issue with theparty, with the primary jurisdiction, so is attempting to usurp thepower of the agency, which is a NO NO!

"Where a government agency, or local municipality believes that anindividual is a person within the demands of a statute, of which ithas authority to enforce, or standing to initiate an action namingthe individual, there must be a demand for administrativeenforcement. The government agency is required (cont)

PAGE 258

(cont) to first exhaust all administrative remedies before it mayproceed on any civil action (remember that matters of violation ofvehicle code are civil with criminal penalties attaching, by aquasi-criminal procedure, added by exonerated movant), as is theaccused required. Where the people seek enforcement ofadministrative licensee, it must not skirt the administrativeagency for enforcement by a 'mere hearing officer', without the'administrative agency record for a review', it must trigger theadministrative agency remedy, or it denies the agency its authorityand power to enforce its own rules and regulations, and itslicensees, to the harm and denial of administrative remedy to theaccused"(OK Corp. vs Williams, 461 F. Supp 540)

In Austin vs Dept Motor Vehicles, the Court of Appeal held that,"(A) requested Formal Hearing operates to suspend and stayproceedings"Cal Court of Appeals, First Appellate District, Div Two

Arthur Frank Sandord,

Movant, Defendant

PAGE 259

GUY GARDNER320 South Citrus StreetWest Covina, CA

Defendant, in error

RIO HONDO MUNICIPAL COURT

COUNTY OF LOS ANGELES, STATE OF CALIFORNIA

PEOPLE OF THE STATE NO.

OF CALIFORNIA, NOTICE OF SPECIAL APPEARANCE TO INFORMPlaintiffs, in error COURT OF DEMAND FOR FORMAL HEARING SERVEDvs DEPARTMENT OF MOTOR VEHICLES AND COURTGUY GARDNER

Defendant, in error MEMORANDUM OF POINTS AND AUTHORITIES.

TO THE CLERK OF THE ABOVE REFERRED COURT;

Guy Gardner, will appear special at the above court located at11234 E. Valley Blvd in El Mone, California before a magistrate ofthe court on June 00, 0000, at 8:30 AM, in Div .

At the time and place defendant, in error, will inform the courtthat a Demand for an Administrative Hearing was filed with theClerk of the Court on (date) and served by mail on (date) to the Department of Motor Vehicles with 60 day notice.

Accordingly, a stay of proceedings must be entered by this courtuntil the Department of Motor Vehicles responds to (cont)

PAGE 260

(cont) defendant, in error, demand for a hearing.

Guy GardnerDefendant, in error.

MEMORANDUM OF POINTS AND AUTHORITIES

In Austin vs DMV, court of Appeal, Case No 037357, Superior CourtNo. 309327, Court of Appeal, First Appellate District, Division Twoheld "(A) request for Formal Hearing operates to stay proceedings"

"A court cannot engage in any action which deprives a party beforeit of his constitutional rights. It has long been recognized thatit is a proper function of courts to act to check on improper useof both executive and legislative powers"Powell vs McCormack 395 US 486 citingKilborn vs Thompson 103 US 168 to whit;

"Especially is it competent and proper for this court to considerwhether proceedings are in conformity with constitution and laws,because, living under a written constitution no branch ordepartment of government is supreme; it is the province and duty ofjudicial and administrative departments in cases regularly broughtbefore them, whether powers of any branch of government have beenexercised in conformity to the constitution; if they have not, totreat their acts as null and void"

PAGE 261

22 CJS, Criminal Law s371, page 941

It has been stated broadly that, in view of the greater likelihoodof the disregard of the rights of accused in summary trials ininferior courts, such courts should exercise greater degree of carein guarding such rights.Ex parte Williams, 183 Cal 11and in general, a summary conviction cannot be sustained if therehas been a denial of substantial rights of the accused.Williams supra

De facto, an officer, position, or status, existing under claim orcolor of rightBlack's Law Dict. Fourth Edition

A court cannot engage in any action which deprives a party beforeit of his constitutional rights. It has long been recognized thatit is a proper function of courts to act as check on improper useof both executive and legislative powers.Powell vs McCormack, 395 US 486, which quoted Kilborn vs Thompson,103 US 168, to whit;

Especially is it competent and proper for this court to considerwhether proceedings are in conformity with constitution and laws,because, living under a written constitution no branch ordepartment of government is supreme; it is the province and duty ofjudicial/administrative departments in cases regularly broughtbefore them, whether powers of any branch of government have beenexercised in conformity to the constitution; if they have not, totreat their acts as null and void.

Guy GardnerDefendant & Movent

PAGE 262

Arthur Frank Sanford5894 Villa DriveRancho Cucamonga, CA

Defendant

MUNICIPAL COURT, WEST VALLEY DIVISION,SAN BERNARDINO COUNTY People of the State of No. 55688

California, NOTICE OF MOTION; MOTION FORPlaintiffs, CONTINUANCE; NOTICE TO DEFENDvs FILED WITH DEPARTMENT OFArthur Frank Sanford MOTOR VEHICLES; DEMAND FOR FORMALDefendant HEARING, DMV. POINTS & AUTHORITIES

TO THE CLERK OF THE ABOVE ENTITLED COURT:

Defendant, Arthur Frank Sanford, will appear for Law and MotionHearing at the above name court on (date) at (time), at whichtime he will motion the court for a continuance as he has filedwith the Department of Motor Vehicles a Notice of Defense andDemand for Formal Administrative Hearing and Declaratory judgmentbased upon the Notice of Defense. See attached Seze Exhibit 105 and

Exhibit 108 attached herein.

Grounds for the granting of Motion for Continuance are clear andstated within Notice of Defense, Demand for Formal AdministrativeHearing, and Department of Motor Vehicles is agency with primaryjurisdiction and the first instance on all matters of vehicle code.

PAGE 263

District Attorney, County of San Bernardino, California has failedto properly initiate an accusation with the DMV, the enforcementagency for Vehicle Code 1959. Defendant in order to protect hisright to hearing and the remedy available to him by administrativeagency by a setting of the administrative record for review, hasinitiated such an action himself, thus, this court sitting mustcontinue the matter until all remedy has been exhausted at theadministrative level.

Arthur Frank SanfordDefendant

PAGE 264

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OPENING STATEMENT

Movant contends that this court is without jurisdiction, asjurisdiction is defined as follows:

To have power and authority to hear and determine issues of factand law by having jurisdiction over the supposed subject matter asa cause of action. To make a record of evidence found, findings offact and conclusion of the law. To make orders, decrees, judgmentswith supporting rationale.

Where a person challenges the agency/court's jurisdiction by aspecial appearance, the court/agency, it cannot proceed [Melo vsUS, 505 F2d 1026; Joyce vs US, 474 F2d 215] the burden of proofshifts to the government forum [Rosemont vs Lambert, 469 F2d 416]forum must produce on the record of the court/agency alljurisdictionfacts related to the assertion [Lantana vs Hopper, 102 F2d 118; NYvs US, 337 F Supp 150]

Movant challenges the forum's assumed jurisdiction to hear and ruleon this matter presumptuously as court is not, though it isdeceptively presenting itself as a judicial court my aquasi-criminal procedure, moving forward to deny movant his rightto administrative remedy by the DMV.

This forum/court is not a United State Article III judicial court.Only after the agency (DMV) has set the record, may this forum, alegislative court, sitting 'as mere extension of the agency' for'superior reviewing purposes' [FRC vs Gen Elec., 281 US 464; Kellervs Pot. Ed., 216 US 428]

Only the particular agency with primary jurisdiction, DMV, may makea record and decision on the applicable law, and the facts of theaccusation after investigating of the accusation. That record, ofthe agency, (cont)

PAGE 265

(cont) then becomes final and review may then be had if needed.

Accordingly, this legislative court/forum, at this time, is withoutjurisdiction to hear a quasi-accusation naming the movant, noadministrative record for review exists, and no substantivecriminal charge is evidenced for court to sit judicially, or anyallegation sustained with facts that the movant was engaged in and enjoying the benefits of the activity of the business oftransportation, regulated and enforced by the Department of MotorVehicles, primary jurisdiction.

Once the party of first instance, Department of Motor Vehicles,hears by an application of movant, and upon investigation andhearing, makes a decision on the statutory law and the facts of theaccusation naming the movant, it may then turn to this legislativecourt, and this court may on reviewing and determining/findingrationale basis and substantial evidence, determine if the agencyshowed facts whereby statute applied to movant, at the time of the'police stop', and that the movant was within the subject matterjurisdiction of the agency.

So, first instance, the agency must have had an accusation filedwith it, by its own initiative, some government agency withstanding, or a private party. After an investigation showing cause,hold a hearing where accused notifies intent to defend, and by itsquasi-judicial authority adjudicate the matter.

Where the agency granted and issued a certificate of license,(cont)

Page 266

(cont) the agency may condition the terms of the privilege, suspendthe privilege, or revoke the privilege, upon a finding of violationof vehicle code regulation(s).

These events are not a part of this quasi-defendant/movant'smatter, do not show on any record, and the challenge for want ofjurisdiction takes from this forum any power to directly affect thequasi-defendant.

No court of any description, can substitute its generaljurisdiction once the victim has demanded a 'Formal'quasi-judicial hearing of the agency. The prosecuting districtattorney is not entitled to a 'trial' of the matter by a merenotice to appear, without first having accused the victim with theagency, and the agency having ruled on an accusation. (see, Cal. vs Sims, 32 CA3d 468 (1982)

Any 'trial' (sic) to discover facts and determine the law ismandated only to the agency by the legislative enactment CaliforniaStatutes 1959, Chapter 3, Vehicle Code.

This forum/court, as a matter of law, lacks jurisdiction tohear/find/determine as a party of first interest/instance, andthereby take from the Department of Motor Vehicles its power toenforce its own rules and regulations and the statute, without asingle exception.

For those reasons and the law contained within this motion, thecourt/forum must continue this matter and remand it to the agency,as movant has filed a 'Formal Demand' and 'Notice to Defend' withthe Department of Motor Vehicles.

Arthur Frank Sanford

Page 267

HISTORY OF FACTS OF THE MATTER

On June 22, 1989, a Notice to Appear was written by San BernardinoDeputy Sheriff John Tomasse, No. 556888, citing VC 16028(a), in the

name of the defendant. At the time of the quasi-police stop,defendant was not engaged in the activity regulated by theDepartment of Motor Vehicles, business of transportation.

Accordingly, defendant has moved this matter to the Department ofMotor Vehicles for remedy, which only the department may provide bya hearing of defense.

In Austin vs Department of Motor Vehicles the Court of Appeal;held that, "(A) requested Formal Hearing operates to suspend stayof proceedings" Austin vs DMV, No a037357 Superior Court No. 309327; Cal Courtof Appeal, First Appellate District, Division Two

In Gonzalez vs Mun. Court, the Court of Appeal held, "......thatwhen defendant takes a position that a 'no grant of hearing forwant of jurisdiction it is the same as exoneration', and the courtcited People vs Sims 32 Cal 3d468 which held, 'when a defendant has been exonerated' in hearingby agency that the case before it 'Gonzalez' Sims applied,collateral estoppel bars further district attorney action isbarred" 87 Daily Journal, DAR 8930

Thus, this court must continue this matter until DMV investigatesthe matter, hears and makes a determination to enforce or not toenforce for a want of jurisdiction of the defendant.

Arthur Frank SanfordDefendant/Movant

PAGE 269

Department Motor Vehicles2451 First AvenueSacramento, CAAttention A.A. Pierce, Director

Department of Motor Vehicles 16499 Merrill AvenueFontana, CAAttention Mr. Stark, Manager

Universal Life ChurchArthur Frank Sanford, Minister5894 Villa Drive

Rancho Cucamonga, CAPetitioner, Demandant

SUBJECT: DEMAND FOR ADMINISTRATIVE HEARING FOR WAIVER FROMREGISTRATION AND LICENSING OF MOTOR VEHICLE WHERE NO NEED EXISTSPURSUANT TO SECTION 260(a) (b) V.C. BY PETITIONER, AND RULING ON NONEED FOR DRIVER'S LICENSE WHEN NOT ENGAGED IN ACTIVITY ENFORCED BYTHIS DEPARTMENT

Agency should be challenged at its level as that question iswaived unless brought before the agency because the failure toraise the constitutional issue at the administrative levelconstitutes a waiver of the right to bring later in any forum. Reinel vs house, 259 Cal App2d 511; Quality vs Court, 73 CalApp3d 860, 862; Mestinak vs Atwater, 79 Cal App3d 593; Griswold vsSchool District 63 Cal App3d 1034

Petitioner seeks ruling from the Department of Motor Vehiclesby the issuance of a variance/waiver, by the DMV, showing that thepetitioner is not a person of the class named within Vehicle Code1959 required to register and license, and pay fees and taxes onhis private passenger vehicle, not for hire, and has a 'personalstake in the outcome' as the ruling will sharpen the resolution ofthe constitutional question.Baker vs Carr, 369 US 186, 204; see also NAACP vs City of Richmond,743 F2d 1346, 1350;petitioner/demandant has suffered actual harm and will continue,and continue to be threatened with future harm by the putativeillegal conduct of the DMV, and local municipality police agenciesand a ruling will most likely redress, by a favorable decision,present and future harm to the petitioner. Valley Forge vsAmericans United, 454 US 464, 472 Petitioner does not function within the activity regulated andenforced by the DMV. Petitioner does not enjoy any of theprivileges or benefits, which are granted by the 'dept', and merelyuses his automobile (cont)

PAGE 270

(cont) for personal private travel and transportation. Petitioner has registered and licensed a private automobile,a Chevrolet Camaro, yr 1984, 1G1AP87H8EL128690, license # 1KBU654,and has so done under protest evidenced by this petition.

No statutory duty lies to apply for or to possess a driver

license, or to register a private passenger vehicle used forpersonal travel and transportation, when person is not within theclass of persons for whose benefit or protection the statute wasenacted Roth vs Quinn, 20 Cal2d 488 So long as one used his property for private purposes and doesnot devote it to public use, the public has no voice in its control Assoc Pipe vs R.R. Comm., 176 Cal 518

Petitioner is concerned that he will be harmed unlawfully, ifhe travels upon the public's highways of the state, without the'unlawful compelled licensing' of his private automobile, orwithout a written waiver issued by the agency in his possessionwhile traveling for personal pleasure and business.

The individual has no liability, to the state, where there isno possession of valid state license nexus, or where possession ofthe same is by necessity. The necessity being to protect life,liberty, and property, and property rights from unlawful taking.The necessity annuls the liability.

A statute which imposes a contractual obligation, relationshipin derogation of the common law, and affects substantial rights,must be construed strictly, and cannot be extended by implicationto include persons who do not come within its terms. Kurtz vs Capital, 67 A2d 470

In Wall vs King, 206 F2d 878 the courts said: It might haveseemed that the state could not have deprived the plaintiff of anyconstitutional right, since it has been adjudicated by the highestcourt of the state that the action was not authorized by state law.

Nowhere within the context or intent of Vehicle Code 1959, isit evidenced that vehicle code is a'positive', 'public', generallaw applying to all travelers, who as motorists, locomote upon thehighways of the state.

The United States Supreme Court in Grosjean vs American Press,1936, 297 US 233, 234, said: In fact it is under the enlargedconnotation of the word 'liberty'.........due process of the 14thamendment as a limitation upon the states. (2) Therefore, it isunimportant whether for one purpose or another, a license tooperate motor vehicles may properly be described as a mere personalprivilege, rather than a property right. We have no doubt that thefreedom to make use of one's own property, here a motor vehicle, as

a means of getting about from place to place, (cont)

PAGE 271

(cont) whether in pursuit of business or pleasure, is aliberty, which under the 14th amendment, cannot be denied orcurtailed by state without due process of law.

JUDICIABLE ISSUE LIES WITHIN THE AGENCY Though the law itself be fair on its face and impartial inappearance, yet, it is applied and administered by public authoritywith an evil eye and unequal hand, so as practically to make unjustand illegal discriminations between persons in similarcircumstances, material to their rights, the denial of equaljustice is still within the prohibition of the Constitution,including agency's own regulations. Wotton vs Bush, (1953) 41 Cal2d 460-467

United States Court of Appeals, 9th Circuit held; in Darringvs Kincheloe, 86 Daily Journal DAR 651; A threatened injury may be justiciable, see 'Valley Forge 454US at 472', and a plaintiff is not required to undergo prosecutionas the sole means of seeking relief, where he has alleged anintention to engage in a course of conduct that is arguablyaffected with a constitutional interest, but proscribed by astatute, and there exists a credible threat of prosecutionthereunder 'Doe vs Bolton 410 US 37, 42.

Petitioner believes that uncertainty and peril will beconstantly a threat to his personal life, liberty, and property,privacy, and immunity from prosecution, while he is merelytraveling as a motorist for personal locomotion.

Police officers of a multitude of police agencies of the stateand local municipalities, and agents, employees and officers of theDMV, have orally and in writing informed the petitioner that hisvehicle is of a type required to be registered and licensed, feesand taxes paid by the petitioner, even though it is not for hire ascommercial vehicle in business of transportation, that he will beprosecuted which, is contrary to vehicle code. s260 VC (a) A "commercial vehicle" is a vehicle of a type required tobe registered under this code, used or maintained for thetransportation of persons for hire, compensation, or profit ordesigned, used, or maintained primarily for the transportation of

property. (b) Passenger vehicles which are not used for thetransportation of persons for hire, compensation, or profit, andhouse cars are not commercial vehicles. He has been told that if he travels upon the highways of thestate, with said vehicle unregistered and unlicensed, he will becited by some police officer and thereby subject to fines,penalties and assessments, and/or his vehicle will be impounded,even though at the time of the stop he was not engaged in theactivity regulated and enforced by the DMV, which is an agencywithin the Business, Transportation and Housing Agency, thebusiness of transportation. PAGE 272

Petitioner states that he is not a person of the class namedwithin the words and intent of the Vehicle Code 1959. That he doesnot use the highways for profit, gain, or compensation. That he,therefore, does not come within the force of the private business,occupational statute, Vehicle code of 1959.

Petitioner must show that he has applied for a ruling on awaiver granted by the DMV, that will protect him from prosecutionfor merely driving for purposes of private travel and privatebusiness.

Petitioner demands a response and hearing or granting of thewaiver, for if he fails to ask it of the agency, he will beprecluded from asserting, as an 'affirmative defense', that theVehicle Code is being unconstitutionally applied to his vehicle andpetitioner, by agents, hearing officers, and police agents whichare clearly excluded, pursuant to s21100(b), of jurisdiction toenforce state statutes, and severely restricted to businesslicensees of the particular municipality of which they areemployees. (b) Licensing and regulating the operation of vehicles forhire and drivers of passenger vehicles for hire.

Petitioner must demand an administrative hearing to show thathe has not voluntarily applied for a license by registration, whichis now evidenced by this written protest.

He asks for a ruling, on the record, even though DMV cannotgrant one as petitioner is not a person within the subject matterjurisdiction of the agency, but must do so as, if he does not, he

will not be able to present as affirmative defense, a setting ofthe record of his status being that of one outside the business oftransportation, and to protect his common law constitutional rightsand privileges and immunity from unlawful prosecution under colorof Vehicle Code.

If petitioner fails to petition for an administrative hearing,he will be denied access to the judicial courts.

Petitioner demands a formal hearing be granted by the DMVwithin 30 days of receipt of this demand(VC s16075 (b) for hearing.

No agency can refuse a prior hearing when affectingfundamental rights, on the issue of the statute as 'applied', forsuch an application is a form of 'rule making', and agency have theduty and power to adopt, rescind, or modify its rules to meet therequirements of the law and other exigencies. Reimel vs House, 259 Cal App2d 511, 515

If dept fails to respond and grant the hearing, any judicialcourt hearing will deem that the agency wants jurisdiction of thesubject matter, and of the personam of petitioner, and thereafter,no court may acquire jurisdiction for purposes of 'administrativeregulatory enforcement scheme' when the administrative agencyitself has no jurisdiction (cont)

PAGE 273

(cont), and the people have no interest and have suffered no harm,where there is no government interest.

On the issue of a Driver's License, petitioner will argue thathe does not use an automobile or truck as a Driver, and thus, hasno need for a Driver's License when he receives no compensation,and will not receive any compensation for so doing.

That indeed, he uses an automobile/truck only for privatebusiness and pleasure, and transportation and as a mode oftravel/conveyance, and so does not come within the jurisdiction ofthis Department.

"Practicing a profession, or otherwise engaging in aregulated activity, without a license, is an offense if a statuteso provides, whether or not the offender received or expectedcompensation, unless the statute specifies the receipt or

expectation of compensation as an element of the offense, in whichcase there is no offense, if that condition is not fulfilled" People vs Vermillion (1916) 30 CalApp 417, 418

"No statutory duty lies to apply for, or to possess a Driver'sLicense, or to register a private passenger automobile used forpersonal travel and transportation, as defendant is not within theclass of persons for whose benefit or protection the statute wasenacted" Routh vs Quinn 20 Cal2d 488

"In Matter of Charles Stork; Classification of Drivers ofMotor Vehicles; Not unconstitutional in that it requires chauffeursor drivers of motor vehicles for hire, to pay an annual licensetax, but exempts all other operators of such vehicles from such taxand regulation" 167 Cal 295 (1914) CONCLUSION "It is basic in our law, that an administrative agency(department therein) may only act within the area of 'jurisdiction'marked out for it within the law. If an individual does not comewithin the coverage of the particular agency's enablinglegislation, the agency is without power to take any action whicheffects him" Endicott vs Perkins 317 US 501 (1943)

Arthur Frank SanfordPetitioner, Demandant

PAGE 274defendant, in error,Sui Juris

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

BY AGENCY'S FAILURE TO GRANT HEARING ON DEMAND, ALL ACTION ONMATTER IS COLLATERALLY ESTOPPED FROM PROSECUTION BY THE PEOPLE

When agency stands silent by failure to respond or to grant ahearing, Doctrine of Collateral Estoppel forbids districtattorney/city attorney/county counsel/attorney general from filinga complaint with a court, sitting to hear a civil action, or courtsitting judicially for any criminal action.

The failure of the agency to grant a hearing bars civil liabilityor criminal prosecution for actus reas later under the Doctrine ofCollateral Estoppel as Administrative Law demands for hearing arethe administrative equivalent of judicial Declaratory Judgment, and

all Natural law requirements and indicia that apply to JudicialDeclaratory Judgment also apply to Administrative Judgments"Babcock vs Babcock, 63 CA2d 94;Maxwell vs Maxwell, 66 CA2d 549

PAGE 275

Where an administrative agency has quasi-judicial power to hear andrule to a final determination on matters within its jurisdictionand does so, then: "The conclusiveness of judgment is a prioraction where subsequent action is upon different cause of action isbarred by doctrine of collateral estoppel"Babcock vs Babcock, supra

Where an administrative agency has no jurisdiction of matter orissue outside its delegated authority, it stands silent on thedemand for hearing, or refuses to grant one because of that want ofjurisdiction, the matter is barred by Collateral Estoppel Doctrinefrom a subsequent action on the same matter or issue. A recent case, Gonzalez vs Municipal Ct, 87 Daily Journal DAR,8930, the Court of Appeal, and here defendant takes the positionthat a 'no grant of hearing for want of jurisdiction is the same asan exoneration',the court cited Peo vs Sims, 32 Cal3d 468 (1982), which had ruledthat Doctrine of Collateral Estoppel bars a criminal prosecution byDistrict Attorney when defendant has been 'exonerated' byadministrative hearing by the agency; and in the case before it,

'Gonzalez', held that 'Sims' applied also in 'Gonzalez',ruling that 'Sims' decision compelled ruling collateral estoppelbarred district attorney action. "In this case we address a facet of the collateral (cont)

PAGE 276

(cont) estoppel effect of administrative proceedings in subsequentcriminal prosecutions. The issue before us is whether a ruling ina driver's favor, in administrative proceeding of the DMV, shouldbe accorded collateral estoppel in subsequent criminalprosecution........We conclude under controlling authority,People vs Sims (1982) 32 Cal3d 248, The answer is yes"

"Held, administrative orders or determinations are unassailable

except for fraud, mistake, or lack or failure of jurisdiction" US- consolidated vs Siggans 99 F Supp. 151 ".......and theyprecluded subsequent inquiry by the court into questions which havebeen decided" US - Hecox vs Pullman Co., DC Wash., 85 F Supp. 740

In the case of Vary vs DMV, Superior Court No. N31940, Court ofAppeals, 4th App District, Division One, cited in 88 Daily Journal,DAR 7519, the appellate court cited Rohrabaser vs Lederer (1986)179 CA3d 290, 297, which said: "A judgment in a previous actionbetween the same parties, or those privity with them, operates ina later action as conclusive adjudication as to the issues actuallyand necessarily decided in a first action."

"In order for the doctrine of collateral estoppel to apply, thisissue in the second action must be identical to the issueadjudicated in the first action"

PAGE 277

Inn re Marriage of Modnick (1983) 33 Cal3d 879, 904: Defendant hasexhausted administrative action and remedy which may have beenavailable to him, and so if district attorney wishes, he may takethe DMV to an appellate court for a review of the record set by theDMV.

If the court denies this motion for dismissal and permits thedistrict attorney, without jurisdiction, to prosecute defendant,court will place the defendant into a position of 'double jeopardy'in permitting district attorney to petition the court for a trialon the same issue adjudicated by the agency with primaryjurisdiction.California Constitution, Article 1, s13.

Double Jeopardy:No person shall be twice put into jeopardy for the same offense.

Caveat: The district attorney has failed to pursue the issue withthe party with the primary jurisdiction, so is attempting to usurpthe power of the agency, which is a NO NO!!

"Where a government agency, or local municipality believes that anindividual is a person within the demands of a statute, of which ithas authority to enforce, or standing to initiate an action namingthe individual, there must be a demand for administrativeenforcement. The government agency is required

(cont)

PAGE 278

(cont) to first exhaust all administrative remedies before it mayproceed on any civil action (remember that matter of violation ofvehicle code are civil with criminal penalties attaching, by aquasi-criminal procedure, added by exonerated movant), as is theaccused required. Where the people seek enforcement ofadministrative licensee, it must not skirt the administrativeagency for enforcement by a 'mere hearing officer' without the'administrative agency record for a review', it must trigger theadministrative agency remedy, or it denies the agency its authorityand power to enforce its own rules and regulations and itslicensees, to the harm and denial of administrative remedy to theaccused." OK Corp vs Williams, 461 F. Supp 540

In Austin vs DMV, the Court of Appeal held that, "(A) requestedFormal Hearing operates to suspend and stay proceedings"Cal. Court of Appeals, First Appellate District, Div Two

Arthur Frank Sanford,Movant, Defendant

VOL 1 CHAPTER 15 - 1PAGE 285

D.U.I., IMPLIED CONSENT UNDER s23152 IS VOID WITHOUT WRITTENVOLUNTARY CONSENT ON THE RECORD[There can be no implied consent under VC s23157(a), effective Jan.1, 1992, without the knowledgeable, consent voluntarily given inwritten waiver]

[Consent implies knowledge by written or oral word or by conducttherefrom; if informed, silence and inaction are circumstancesshowing consent & acceptance; the act of consent implies, at least,the power of preventing, and thereby, implies not only that personacceded to the consent, but authorized the act]

"Consent means 'voluntary' yielding of will and cannot be thesubject of compulsion" Shehany vs Lowry 152 SE 114

"Consent and implied consent, as recognized by law, cannot be thesubject of compulsion, each must be in agreement to that, which but

for the consent, could not exist, and which the party consentinghas a right to forbid"State ex re United Rys Co of St. Louis vs Public Service Comm. ofMo. 192 SW 958, 961

"The theory of law to acts done and licenses/contracts made byparties affecting their rights and interests is that in all suchcases there must be free and full 'consent' in order to bind theparties, and mind weighing, as in a balance of the good and theevil on each side" Lervick vs White Top Cabs La App 10 So2d 67, 73

VOL 1 CHAPTER 15 - 2 PAGE 286

"Legal 'consent', which will be held sufficient in a prosecution,assumes a capacity in the person consenting to understand, andappreciate the nature of the act committed, the probable or naturalconsequences which may attend it"People vs Perry 146 P2d 44, 4526 CalApp 143

[For one to have volunteered, by implied or silent consent, onemust have been informed, made known of the fact of the consentunder s23157, informed that a choice was his to be made, withoutcoercion]

[A voluntary act is done by design and intention, for some purpose,cannot be accidentally]

"Voluntary means intentionally and without coercion"Young vs Young 84 P2d 916, 917

"Voluntary is freely and intelligently"Kovach vs US C.A. Ohio 53 F2d 639

"Construction of word 'voluntarily' is implying knowledge insteadof in its ordinary sense of 'willingly' or 'without compulsion',should be given when necessary to give effect to statute"Sweeny vs Sweeny 118 A. 882

"Voluntary presupposes choice, one makes no choice when one doesnot know he has a choice" Jenkins vs Kaplan 148 A2d 33, 36

[At no time, in any manner, does the DMV inform an applicant,orally or in writing, or present a lawfully required form of

waiver, that he/she is (cont)

VOL 1 CHAPTER 15 - 3PAGE 287

(cont) waiving the Bill of Rights under the Constitution imposed onDepartment by the Fifth Amendment.Therefore, there was/is no voluntary, knowing waiver of rightsunder s23157(a). Silence is not acceptable argument when one hasnot been informed. When Department is silent there is noopportunity to question or challenge. This is why the section 23157is known as implied consent]

The standard for voluntary waiver of rights has been clearlyaddressed by the Supreme Court in at least the following cases:Brady vs US 397 US 742 at 748 (1970)Emspak vs US 349 US 190 at 197-198 (1955)Ohio Bel Tel Co vs Public Utilities Comm 301 US 292 at 307 (1937)Fuentes vs Shevin 407 US 67 at 95 (1972)

[If implied rights/waiver is asserted by prosecutor or DMV by anapplication for a Driver License by defendant, but no facts areintroduced in evidence of knowing waiver of rights by applicant,then such an application is void on its face, and without force oflaw as to applicant when a signed waiver is not/cannot be produced,which would show that defendant voluntarily abandoned hisconstitutional rights, privileges and Immunities]

"Coerced waiver of rights under Fifth Amendment is invalid"Davis vs State, Fla. App 1970, 233 So2d 6 41

[It is obvious as to why the Department does not inform (cont)

VOL 1 CHAPTER 15 - 4PAGE 288

(cont) of the right to waive. Such a policy must be by maliciousintent, as it contravenes the obligation of the Department toinform where a need lies to inform. By the avoidance of theobligation, the individual is harmed by the failure of theDepartment to inform]

"Where rights secured by the Constitution are involved, there canbe no rule making or Legislation which would abrogate them"Miranda vs Arizona 348 US 491

[As all prosecutions for DUI are tried by quasi-criminal procedure,then the Bill of Rights must be obeyed, unless of course, you havewaived them and thereby submitted to self incrimination.]

"The privilege against self-incrimination, guaranteed by thisclause (fifth amend), may be waived either specifically, by word ofmouth or in writing, or some act amounting to waiver, in latterevent, act alleged to constitute waiver must be carefully appraisedand any doubt must be appraised as against the waiver"US vs Steffen, D.C. Cal, 1951, 103 F Supp 415

[Fraud enters the sordid action by the Department for it takes fromyou certain rights, privileges and immunities under the statuteitself, by acts of Active misrepresentation; Conscious concealmentof material fact or defect; Non-disclosure where there is a duty tospeak]

[Fraud is the intentional deception to cause a person to give upproperty or some legal right, and when fraud (cont)

VOL 1 CHAPTER 15 - 5PAGE 289

(cont) exists, a tort exists, and civil suit lies for damage]

[Fraud is the taking of monies (license fees/taxes) under falsepretenses and conduct perpetrated to induce another into harmfulcontract]

1. ACTIVE MIS-REPRESENTATION is used in reference to unconscious orhonest mistaking of material facts, and it has the same legaleffect as fraud in giving the injured party the right to plea atlaw to avoid/ void/cancel/annul the license. Where there has beenfraud or mis-representation the credulity of the injured,damaged party is no defense.

"One who has perpetrated a fraud will not be permitted to say thatthe injured party ought not to have believed or trusted him"Wilcox vs American T & T Co 176 NY 115

2. CONSCIOUS CONCEALMENT OF A MATERIAL FACT OR DEFECT. To warrant the rescission/revoke/cancel a license/contract or otherobligation, it must be further shown that the false representationscomplained of were the inducement, that is, that they created suchan impression in the mind of the party complaining, as to overcome

any indecision on his part, and led or influenced him into givinghis consent. Conclusive test of mis-representation being theinducement to the license is the fact, if it be so, that the partywould have refused his consent if the truth were to be known.

[There is certainly provable evidence of mis-representation, ofconscious concealment of a material fact/defect, when applying fora Driver's License]

VOL 1 CHAPTER 15 - 6PAGE 291

[Go to the Department with a friend, as a witness, who thereafter,will make an affidavit/declaration/asseveration as to the factsstated by some employee of the Department when you asked about theconditions of the Driver's License]

3. NON-DISCLOSURE WHERE THERE IS A DUTY TO SPEAK as to fraud, maynot be merely consisting of an express mis-representation of fact,but also in concealment or non-disclosure of a material fact whenthere is a duty to speak. An intention is as much a fact as theexistence of non-existence of anything.

"The state of a man's mind, is as much a fact as the state of hisindigestion"Edington vs Fiszmaurice29 English Law Reports 459, 483 (1885)

[Any act other than lawful persuasion is coercion]

"Lawful persuasion, is that which is not directed to theaccomplishment of an illegal or unlawful purpose, but appeals tothe judgment, reason, leaving the mind free to act of its ownvolition. Where there is no such freedom of action, more than merepersuasion has been exercised, it amounts to duress, intimation andcoercion"108 SE 226; 151 GA 776

V.C. s23157, AND ITS SUBSECTIONS, IS TOTALLY AND SUBSTANTIVELYVIOLATIVE OF FOURTH, FIFTH, AND SIXTH AMENDMENTS OF THECONSTITUTION'S BILL OF RIGHTS, AND EMPLOYEES SUBTERFUGE TO GAINIMPLIED CONSENT FROM APPLICANT FOR DRIVER'S LICENSE

VOL 1 CHAPTER 15 - 7PAGE 291

"Where rights secured by the Constitution are involved, there canbe no rule making or Legislation which would abrogate them"Miranda vs Arizona 348 US 491

[Understand that though all matters of enforcement of Vehicle Codeare civil in nature, and are mala prohibita violations but, as suchmisdemeanor violations, incarceration in the local poky can be andare imposed upon the state and its administrative agencies, to obeythem and thus the quasi-criminal procedure is used]

"Actions taken under the implied consent law are civil in nature"State vs Severino 56 Haw 378, 537 P2d 1187 (1975)

"Officer arresting one for driving under the influence ofintoxicating liquor, and who has advised driver of hisconstitutional rights according to Miranda, and later advises himof requirements and sanctions of implied consent law, is requiredto further inform driver that those constitutional rights do notapply to his decision whether or not to take a chemical testrequired by implied-consent statute, only if driver's responses toquery, whether he wishes to take a breathe-lyzer or blood test,indicates confusion on the part of driver, and his refusal to takeit is based on assertion of constitutional rights"

[Now, understand, that the driver above is assumed to be a Driverpossessed of a Driver's License, and engagedin the (cont)

VOL 1 CHAPTER 15 - 8PAGE 292

(cont) activity regulating licensees while engaged. It does notrefer to 'statute' which is civil code, private in nature, only toa class of persons identified therein]

[Remember, peace/police officers have no authority to arrestindividuals for violations of Vehicle Code as police officers, andany arrest under color of police power is a civil/citizen's arrestand civil tort suit will lie]

[Now we come to the magic phrase, 'lawful arrest', and 'licensee',and an individual without the license, and not engaged in regulatedactivity is a 'motorist', 'traveler', and not subject to liabilityunder the Vehicle Code]

MOTORIST: A person who drives an automobile or travels byautomobile; especially one who does so frequently, but not as anoccupation. Blacks's 2nd

"Unless a person is 'lawfully arrested' for violation ofsubstantial offense of driving under the influence ofalcohol, he or she is not subject to license suspension orrevocation under implied consent and license revocation statutes"Mercer vs Dept of Motor Vehicles (1991) 53 Cal3d 783; 809 P2d 404;280 Cal Rptr 745

[Recap 'lawful arrest', remembering a peace officer may only makea lawful arrest, without an arrest warrant, for publicoffenses/misdemeanors eye balled & felonies]

s836. PC Peace officers.....grounds for arrest w/o warrant . Apeace officer may make an arrest in obedience to a warrant, or maypursuant to the authority granted him by the provisions of section830 without a warrant, arrest a person; (cont)

VOL 1 CHAPTER 15 - 9PAGE 293

(cont) 1. Whenever he has reasonable cause to believe that the person tobe arrested has committed a public offense in his presence,2. When a person has committed a felony, although not in hispresence [Now, before we cover s830 PC, understand that a peaceofficer that gave you a 'traffic ticket'/notice to appear, was anemployee of a municipality police agency of a city or county. Sucha peace officer is limited to enforcement of state penal code andordinances of the city/county which employs him] [His authoritydoes not extend/reach to Vehicle Code for DMV] [When Chapter 4.5Peace Officers is read, it refers to s830.3]

s830.3 Particular officers: The following persons are peaceofficers whose authority extends to 'any place in the state' forpurpose of performing their primary duty, or when making an arrestpursuant to s836 of penal code as to any public offense (mala ense), with respect to which there is immediate danger to person or property, or of the escape of the perpetrator of such offense.[Subsection (d) s830 is the only one of interest to the individualgiven a 'traffic ticket/notice to appear]

s830 (d) DMV, designated in Section 1665 of the Vehicle Code,

provided that the primary duty of any such peace officer shall beenforcement (cont)

VOL 1 CHAPTER 15 - 10PAGE 294

(cont) of the law as that duty is set forth in section 1655[So, now is the picture becoming clearer? All peace officers havelimitations as to their scope and duty. Peace officers cannot, whenthey are not functioning within/for enforcement of substantivecrimes make civil/citizen's arrests under guise/color of office/lawenforce Vehicle Code for the DMV civil citizen's arrests][Administrative agencies, and their departments, have no policepower to enforce Vehicle Code as the legislature can not attachpolice power to civil administrative statutes, which are classbusiness statutes]

LISTEN UP!

1655 (a) The director, a deputy director, the chief and assistantchief of the Division of Compliance of the department, andinvestigators of the department, shall have powers of peaceofficers for the purpose of enforcing those provisions of law, nowor hereafter, committed to the administration of the department or,enforcing law, or enforcing law on the premises occupied by thedepartment.(b) Any person in (a) may inspect any vehicle of a type required tobe registered under this code..........,for the purpose of investigating the title and registration of thevehicle,........[Reading and re-reading the above, and much more material, twoopinions surface; employee of department has no police power to goforth on the common highways of the state (cont)

VOL 1 CHAPTER 15 - 11PAGE 295

(cont) arrest any person/individual who is not engaged in some oneof the activities regulated and enforced by the department; a peaceofficer of a municipal corporation has no authority, as definedabove, to enforce Vehicle Code for the department][Now, we come to the issue challenged of Implied Consent forChemical Testing, as iterated in s23157 et seq.,and assuming a licensee who did waive constitutional rights; authorcannot find any statement that a licensee, or any individual, can

be 'lawfully arrested' pursuant to 23152, is of the opinion it isbecause all violations of Vehicle Code are administrative civilactions, to which no power of arrest attaches]

VC s23152 (a) Any person who drives a motor vehicle is deemed tohave given his or her consent to chemical testing of his blood,breath or urine, for the purpose of determining the alcoholiccontent of his or her blood, and to have given his or her consentto chemical testing of his or her blood or urine for the purpose ofdetermining the drug content of his or her blood, IF LAWFULLYARRESTED for any offense allegedly committed in violation of s23152or 23153. The testing shall be incidental to a lawful arrest.....[Question. How can the test be 'incidental' when it may be the onlyevidence that the person was under the influence?]

[The chemical testing of the blood for drugs/alcohol, can in no waybe constitutionally incidental, as it is the evidence to be used ina quasi-criminal prosecution before a jury, with you, the accusedand charged, and thus, would (cont)

VOL 1 CHAPTER 15 - 12PAGE 296

(cont) deny the right of no self-incrimination when no searchwarrant is issued and served] [21357 then rambles on about 'lawfularrest' under subd. (2) (A), B, C, (3), (4), (5) (b) (c) (d), butlawful arrest is not clarified/made clear/defined][Lawful arrest is with all due process of law, statutory andconstitutional. Brought into custody, charge made and filed, byproper prosecutor for the people, before a magistrate, with theissue of and execution of warrant of arrest and Miranda rights readand signed]

[As 23152, 21353 are civil, but tried under quasi-criminal process,we must turn to case law and the Bill of Rights, as criminalprosecution rights apply, and even consent to the tests cannot beconstitutionally given]

"No consent can be given which will deprive the consenter of anyinalienable rights" A & E Encyc, Desty Criminal Law s33

"Privilege against self incrimination, guaranteed by this clause(Fifth), may be waived either specifically, by word of mouth or inwriting, or some act amounting to waiver; latter event act allegedto constitute a waiver must be carefully appraised and any doubt

must be appraised against waiver" US vs Steffen, DC, Cal, 1951, 103 F Supp 414

Fourth Amendment".....right of the people to be secure in their persons, againstunreasonable searches...shall not be violated, and(cont)

VOL 1 CHAPTER 15 - 13PAGE 297

(cont) no warrant shall issue, but upon probable cause, supportedby Oath and Affirmation........"Illegal SeizureDavis vs Miss 394 US 721

1. Illegally seized evidence is inadmissable at criminal trial,however relevant, and trustworthy the seized evidence may be asitem of proof;

2. Search and Seizure: For purposes of Fourth Amendment, the FourthAmendment is meant to prevent whole sale intrusions upon personalsecurity of citizenry, whether intrusions are termed arrests orinvestigatory detention;

3. Detention for sole purpose of obtaining evidence, are subject toconstraints of Fourth Amendment, Search and seizure section 25,necessity of arrest warrant on detention to obtain evidence.

4. General requirements are that authorization of a judicialofficer be obtained in advance of detention, would seem not toadmit of any exception in context of detention for the purpose ofobtaining evidence" "The taking of blood sample constitutes asearch and seizure within the meaning of this amendment (fourth)"State vs Acquin, conn, 1979, 416 A2d 1209

"Intrusions involving examinations of person not outside theprotection of the Fourth Amendment even if they involve no probinginto the body or beneath the body surface"McClain vs State of Indiana, 1980, 410 NE2d 1297

"Strictures of this Fourth Amendment against unreasonable (cont)

VOL 1 CHAPTER 15 - 14PAGE 298

(cont) search and seizure apply to searches embodying penetrationof body, including drawing of blood"State vs Howard, 1975, 225 NW2d 391

"Search unlawful when made is not legalized by after acquiredknowledge of officer" Raniele vs US 34 F2d 877

"Seizure on mere suspicion not justified by confirmation ofsuspicion" Gorske vs US 1 f2d 620

"This Fourth Amendment prohibits compelled intrusions into body forblood to be analyzed for alcohol content, if intrusions are notjustified in circumstances or made in improper manner. Withdrawalof blood to determine alcohol content, in connection with arrestfor driving while under influence, constitutes 'search'of person and depends antecedently upon 'seizure' of person withinFourth Amendment"Schmerber vs State of California, Cal, 1966, 86 S Ct 1826; 384 US757; 16 L Ed2d 908

"Because blood samples and breath test for alcohol are nottestimonial evidence, they come under the protection of the FourthAmendment"Commonwealth vs Reynolds, 1979, 389 A2d 1113

"Stipulation in criminal prosecution, that the result of the bloodtest could be admitted into evidence without identification, andwithout objection, as to the identification and chain of custody ofsamples, did not fore lose objection to admission of test resultson the ground sample was (cont)

VOL 1 CHAPTER 15 - 15PAGE 299 (cont) obtained by impermissible search"State vs Gordon, 1976, 549 P2d 886

s23157(5) ........the person is told that his or her failure to submitto, or the noncompliance of, the test or tests will result in thesuspension or revocation of his or her privilege to operate a motorvehicle.......[Once again, the person is being asked, under threat, to givepossible evidence against himself, when no consent has beenknowingly, intelligently given at time of application for aDriver's License, waiving constitutional rights and privileges and

immunity protection, both statutorily and constitutionally, as tolicense engaged]

"There can be no sanctions or penalty imposed upon one because ofhis exercise of a constitutional right/rights"Sherer vs Cullen 481 F2d 946 (1973)

s23157(4) The officer shall also advise the person that he/she does nothave the right to have an attorney present before stating whetherhe/she will submit to the test or tests, before deciding which testor tests to take, or during the administration of the test ortests, the refusal may be used against him/her in a court of law.

"A defendant is entitled to counsel at time of arrest"Cole vs Holliday, Iowa, 1969, 171 NW2d 603

Sixth Amendment, USC".......and to have assistance of Counsel for his Defense"

VOL 1 CHAPTER 15 - 16PAGE 300

"The right to counsel attaches whenever accused is substantiallydeprived of his freedom"McConnell vs US, C.A., Alabama, 1967, 375 F2d 905

"When accusatory process was existent, accused, though not thencharged, had right to counsel"Thompson vs Cox, CA, N.M., 1965, 352 F2d 488

"Any defendant who has been taken into custody as prime suspect, isentitled to attorney to represent him at all crucial and criticalstages of proceedings against him"Sanders vs State of So Carolina, DC, 1969, 296 F Supp 563

"Critical stage of proceedings is point where rights of defendantmust be preserved or irretrievably lost"US ex rel Lamborn vs Rundle, DC, Penn, 1966, 251 F Supp 760State vs Williams, 1967, 235 A2d 684

"Accused is denied assistance of counsel, in violation of SixthAmendment, when he is in custody, has requested and been denied

opportunity to consult lawyer, and has not been effectively warnedof his absolute right under Fifth Amendment to remain silent"Calloway vs Wainwright, CA, Fla, 1969, 409 F2d 59

[It is constitutionally impossible to deprive an accused ofConstitutional rights, privileges and immunities absent the showingof clear, knowing, informed, intelligent, signed consent of waiverof said rights, and therein, showing the consequences, by a fullexplanation of the consequences, in writing at the time of theapplication for a Driver's License] [DMV clearly fails to provide(cont)

VOL 1 CHAPTER 15 - 17PAGE 301

(cont) any information of a forgoing/abandonment of said rights toan applicant, as no information is provided the applicant onhis/her application form for a Driver's License. None is part ofthe Driver's Hand Book, nor is it a part of the writtenexamination. The clerk who handles the paper work does notmake an oral statement, as to the fact, that the applicant isconsenting to waiver of constitutional rights]

[There are people who will argue that it is the responsibility ofthe applicant to know the statutory law but, courts have ruled thatno man can be an expert in the law, and so must be informed of thelaw, and its effect on him]

In Gould vs Gould 245 US 151 at 153 (1917), the Supreme Court held;"a person has no obligation, unless the obligation was very clearlystated in the statute"

PERFECT OBLIGATION: A perfect obligation is one recognized andsanctioned by positive law; one of which the fulfillment can beenforced by the aid of law. Black's 4th p 1225

IMPERFECT OBLIGATION: But, if the duty created by the obligationoperates only on moral sense,without being enforced by any positivelaw,......., it creates no right of action, nor has it any legaloperation. Black's 4th p 1225 [Nowhere in Statute, 1959, VehicleCode, which is not positive law, can one be obligated to abandon constitutional rights in return for quasi-privileges, granted undercolor of law, which it asserts under color of law]

"All legislation is prima facie territorial"

American Banana vs US Fruit 213 US 347 at 356-357 (1909)

VOL 1 CHAPTER 15 - 18PAGE 302

"Legislation is presumptively territorial, and confined to limitsover which the law has jurisdiction"NY Central RR vs Chisholm 268 US 29 at 31032 (1925)

[It is not disputed by the author that the legislature can passstatutory law pertaining to the operation of commercial activities,which effect public interest. Such a public interest business canbe regulated for the good and protection of the public. TheLegislature may establish conditions of doing such business and it may be licensed] [However, when the person is not engaged in alicensed regulated public business, he has not consented to theapplication of the regulation of himself]

Almeida-Sanchez vs US 413 US 266 stated, "Businessmen engaged inregulated enterprises accept the burdens, as well as the benefitsof their trade, whereas the petitioner here was not engaged in anyregulated industry or licensed business. The businessmen in aregulated industry, in effect, consents to the restrictionsplaced on him. The court quickly pointed out that in the Sanchezcase, he was not in a regulated enterprise nor licensed, whichwould automatically waive his constitutional rights"

"The rule is 'there are certain, relatively unique circumstances',which consent to regulatory restrictions are presumptivelyconcurrent with participation in regulated enterprises"US vs Biswell 406 US 311Colonade Catering vs US 397 US 72

PAGE 303 BEING RESEARCHED BEFORE INSERTING

VOL 1 CHAPTER 15 - 19PAGE 304

[If none of the above circumstances exist then (if Sanchez had beenlicensed or in regulated business, the stop and search would havebeen legal, but since he was not so regulated, the stop and searchwas unconstitutional)][Here the author will re-iterate the nature of police power of thestate and its limitations][The state's police power exists when the purpose is criminal

enforcement; to keep the state from public offenses, felony,affront, falling within the purview of common law crimes andnuisances. The Constitution provides positive defenses to theindividual against the state's unlawful invasion of rights,privileges and immunities.]

[There is no state police power where the action is in the form ofcivil actions for torts as municipalities of the state, and thestate itself are barred from exercising 'governmental functions' inthe nature of 'public duties' or 'public benefits', which have, astheir object, the promotion of the public health, safety, morals,and general welfare of its political division, as tort actions arebetween private parties]

[The police power does not exist by the state and itsmunicipalities, where there is statutory jurisdiction by anadministrative agency or department within the agency, asadministrative enforcement schemes are civil in nature and enforcedby special proceedings]

[We now come to the matter of 'sobriety check points', and theircommon usage by peace officers and police agencies (cont)

VOL 1 CHAPTER 15 - 20PAGE 305

(cont) under color of law and color of uniform][Author argues that sobriety check points are farces, as there isno law within the Penal Code prohibiting the use of an automobile,by a motorist, while under the influence of alcohol/drugs. Thus, nopolice power exists for the stopping of motorists at any time orplace. That there is no law permitting the stop of anyperson/individual to check as to their sobriety. Thus, the changingof the phrase from 'drunk check points' to 'sobriety check points'to skirt the issue of unconstitutionality of police power stops][Has anyone ever seen a sign, among the multitude of billboards,police cars, bus stops, etc, that read "It is against the law todrink and drive?"]

[How can there be 'police power' to establish a sobriety checkpoint to stop any vehicle and check the motorist for sobriety, whento be sober is not some penal code violation? And to ask thedriver/motorist if he has had a drink is asking the individual toincriminate himself. If he answers 'yes', he will be ordered tosubmit to a series of field sobriety tests, further incriminating

himself; all without the first determination that the individual isa person within the jurisdiction of DMV Vehicle Code at the time ofthe stop, or there is evidence that the individual has signed awaiver of constitutional rights]

"Lawful arrest - In order for an arrest to be proper, offense musthave been committed in arresting officer's presence" (cont)

VOL 1 CHAPTER 15 - 21PAGE 306

(cont) Spurlock vs DMV 1 CalApp3d 821

[Under s23157(a), one must be lawfully arrested beforesobriety/drunk tests may be performed, and then only with thepermission of the individual or the obtaining of a warrant] [The mere observation of blood shot eyes, odor of alcohol on thebreath, etc., is not admissible proof of drunkenness, andincapacity to perform safely, thus, the need for hard corescientific evidence of 'influence' as without the evidence it is'hearsay']

California Supreme CourtIngersoll, et al Petitioners vs Palmer, Respondent87 Daily Journal DAR 8107; 241 CalRptr 42PREFACE: [Author must explain why Ingersoll case should not have been heard.Why? Because the petitioner had neither status nor standing topetition the Court]

STANDING TO SUE: Doctrine that in an action in federalconstitutional court by citizen against a government officercomplaining of alleged unlawful conduct, there is no judiciablecontroversy unless citizen shows that such conduct invades, or willinvade, a private substantive legally protected interestof plaintiff citizen. Black's 4th p 1577

STATUS: Standing, state or condition. The rights, duties,capacities, which determine a person to a given class. A legalpersonal relationship, not temporary in its nature nor terminableat the mere will of the parties, with which third persons and thestate are concerned. Black's 4th p 1580

VOL 1 CHAPTER 15 - 22

PAGE 307

[Petitioners were California tax payers who sought to prohibit theuse of sobriety check points. As tax payers, not asmotorists/drivers, the use of sobriety check points would notinvade an interest, did not allege status, which would be businesslicensees engaged in business regulated by DMV, and its VehicleCode, nor do they show a status which subjects them to CHPauthority under VC s2400, powers and duties. Nor did they arguethat there is no crime (mala in se) prohibiting motorists fromdrinking intoxicating beverages, and driving (verb) their privateautomobile/truck, thus, no standing that they could/would beharmed by the use of 'sobriety check points', by police/peaceofficers whose power does not/cannot invade rights of privatecitizens absent a crime (mal in se)]

In its opinion, Court said, "However, the sobriety check point herewas operated, not for the primary purpose of discovering orpreserving evidence of crime or arresting law breakers, butprimarily for the 'regulatory' purpose of keeping intoxicateddrivers (were they using verb or noun?) off the highways to the endof enhancing public safety"

[Remember, enhancing public safety is a function of the policepower only when an actual commission of a substantive crime underPenal Code has been committed and someone has been injured, whichdoes not include violations of Vehicle Code mala prohibita.Obviously, the state has not been a victim of a mala prohibitaviolation without a mala in se a part of the prohibita]

VOL 1 CHAPTER 15 - 23PAGE 308

[Next, petitioners argue that sobriety check points are violativeof constitutional rights, for it avoids reasonable suspicion ofcommission of crime and due process, therein demanded, before apeace/police officer may so act. Court then argues that role is a'regulatory scheme in furtherance of an administrative purpose'.This is intentional deception, as no such system/method/schemeconstitutionally exists for DUI under Vehicle Code] [Author has included the Dissenting Opinion by Broussard, Justiceand Concurring Mosk and Panelli, Justices. Author includes it inits entirety as part of this treatise. It cuts neatly and cleanlythrough the garbage of the grounds, presented by the majority, foraffirming the denial of the writ of mandate by the Court of Appeal]

[Author includes the Justice Brennan, with whom Justice Marshalljoins, dissenting in Michigan Department State Police et alPetitioners vs Rick Sitz, et al to the "Sobriety Check Points Don'tViolate Substantial Fourth Amendment Rights" by the Supreme Courtof the United States]

"Each of the respondents (Sitz et al) is a licensed driver in theState of Michigan......who regularly travels throughout the Statein his automobile"

"Respondents argue that there must be a showing of some specialgovernmental need, 'beyond the normal need' for criminal lawenforcement, before a balancing analysis is appropriate, and thatpetitioners have demonstrated no such special need " (Sitz)

VOL 1 CHAPTER 15 - 24PAGE 309

[It appears to the author that the 'necessary balancing analysis'is, and respondents failed to show it, that though they arelicensees of the State of Michigan who travel throughout the State,at the time of the stop, they were not engaged in some vehicle codeactivity which is enforceable by State Police of Michigan, and thatthe seizure by the State Police, absent the mala in se, the seizuredid not advance the public interest as neither the state nor thepeople were victims by mala in se by respondents] [Let me once morego into the issue of what constitutes a lawful arrest as VehicleCode s23157 is explicit that in proceedings on 'influence' arrests,the person must be 'lawfully arrested', and a lawful arrest isclearly defined within Penal Code]

"Petitioners concede, correctly in our view, that a 4th Amendment'seizure' occurs when a vehicle is stopped at a check point"(Michigan vs Sitz)

[Assuming officer is acting within the scope and duty as a policeofficer/peace officer, then a seizure is an arrest without awarrant, and must await the filing of an accusation under oath forissue of arrest warrant before arrestee may be questioned, or canbe required to submit to any 'tests' which would be evidenceadmissible in a trial as to guilt]

PC s849 Arrest without warrant, duty to take prisoner before amagistrate and file complaint;.........(a) When an arrest is made, without a warrant, by a peace officer

or private person, the person arrested, if not otherwise (cont)

VOL 1 CHAPTER 15 - 25PAGE 310

(cont) released, shall, without unnecessary delay, be takenbefore.........magistrate.........and a complaint statingthe charge against the arrested person shall be laid before suchmagistrate.

[Remember, until a verified complaint is filed with a magistrateand a warrant issued for 'probable cause showing' there is nojurisdiction of the subject matter or personam. Any questioning ortesting without permission, in writing, by seized person is aviolation/deprival of Bill of Rights]

PC 849.5 Arrest without filing of accusatory pleading, record,arrest deemed detention

In any case in which a person is arrested and released, and noaccusatory pleading is filed charging him with an offense, anyrecord of arrest of the person shall include a record of release.Thereafter, the arrest shall not be deemed arrest, but a detentiononly. [This procedure mandated under VC s40513(a), and untilcomported/complied with under PC s948 et seq (rules of pleading)then a civil, extra-judicial notice to appear does not constitutea charge under s952]

s952 Statement of Offense In charging an offense, each count shallcontain, and shall be sufficient if it contains in substance, astatement that the accused has committed some public offensetherein specified. Such statement may be made in ordinary andconcise language without technical averments, or any allegations ofmatter not essential to be proved. It may be in the words of (cont)

VOL 1 CHAPTER 15 - 26PAGE 311

(cont) the enactment describing the offense, or declaring thematter to be a public offense, or in any words sufficient to givethe accused notice of the offense of which he is accused.[Read a notice to appear carefully. Does any of it on its faceconform to s952? If not, then it is null and void, without force oflaw, either criminally or civilly]

[If none of the above is obeyed, and a person/individual istaken/appears for an arraignment or trial, then that person hasbeen falsely arrested and falsely imprisoned, and grounds for civilsuit will lie]

Section 4 of Stats 1975, C. 1117, s1 provides; "It is the intent ofthe Legislature that nothing in this act shall effect the civilremedy of any person for false arrest or imprisonment"

[If any trial to prosecute is based upon 'implied consent', unders23157 for chemical tests, then two steps are required by theperson to be prosecuted; a demand that a true, certified copy ofthe written waiver, made voluntarily and knowledgeably, be producedat the trial; or the person to be prosecuted, under that section,introduce at the trial the evidence that he has attempted to havethe DMV allow the accused to inspect its public records andrefused, or no finding of a waiver, or under Information PracticesAct of 1977, the Office of Information Practices has refused toassist in identifying records, or no record identified as a waiverfound] [Partial sections of these processes are part of this (cont)

VOL 1 CHAPTER 15 - 27PAGE 312

(cont) material for your guidance, and to assist as to the generalprocedure for further research for evidence of records][Also included, are the forms for transfer of action to a courthaving jurisdiction, where the court does not have jurisdiction orlack of jurisdiction, appears on the petition or complaint (courtsalways argue a notice is a complaint)]

[If a prior judgment of conviction was without the due process oflaw defined supra, then proceedings should be initiated unders41403, Defenses Div 17 Chapter 5]

[This section is not only for DUI convictions. It applies toconvictions down graded from DUI]

Prior Conviction: Constitutional Validity 41403(a) In anyproceedings to have a judgment of conviction of a violation ofSection 14610 (Driving when Privileges Suspended or Revoked;Reckless Driving. This is common in dropping of the DUI) 14601.2(Driving When Privilege Suspended or Revoked for Driving Under theInfluence, With Excessive Blood Alcohol, or When Addicted) 23152 (Alcohol or Drug: Driver) 23153 (Alcohol or Drug Causing Injury;

Driver) 23103 (Reckless Driving) as specified in 23103.5 (GuiltyPlea to a Lesser Charge) which was entered in a separateproceeding' declared invalid on constitutional grounds, thedefendant shall state in writing and with specificity, wherein, thedefendant was deprived of the defendant's constitutional rights,which statement shall be filed with the clerk of the court, and acopy served on the court (cont)

VOL 1 CHAPTER 15 - 28 PAGE 313

(cont) that rendered that judgment, and on the prosecuting attorneyin the present proceedings at least five court days prior to thehearing thereon.(b) Except as provided in subd. (c), the court shall, prior to thetrial of any pending criminal action against the defendant,wherein, the separate conviction is charged as such, hold ahearing, outside of the presence of the jury, in order to determinethe constitutional validity of the charged separate convictionissue. At the hearing the procedure, the burden of proof, and theburden of producing evidence shall be as follows:

(1) The burden of proof remains with the prosecution throughout,and is that of a reasonable doubt.

(2) The prosecution shall initially have the burden of producingevidence of the separate conviction sufficient to justify a findingthat the defendant has suffered that separate conviction.

(3) After the production of evidence required by paragraph (2), thedefendant has the burden of producing evidence that the defendant'sconstitutional rights were infringed in the separate proceeding atissue. If the separate conviction sought to be invalidated is upona plea of guilty or nolo contendere, the defendant shall providethe court with the evidence of the prior plea, including the courtdocket, written waiver of constitutional rights executed by thedefendant, and the transcripts of the relevant court proceedings atthe time of the entry of the defendant's plea.

VOL 1 CHAPTER 15 - 29PAGE 314

These records shall be provided to the defendant without cost tohim/her, when the defendant is represented by the public defenderor counsel appointed pursuant to section 987.2 of Penal Code.

(4) If the defendant bears this burden successfully, theprosecution shall have the right to produce evidence in rebuttal.

(5) The court shall make a finding on the basis of the evidence,thus produced, and shall strike from the accusatory pleading anyseparate conviction found to be unconstitutionally invalid. (c) If the defendant fails to comply with the noticerequirement of Subd. (a), or fails to produce the evidence required by paragraph (3) of Subd. (b), the court shall hear themotion at the time of sentencing in lieu of continuing the trial,unless good cause is shown for failure to provide notice pursuantto subs (3), or produce the evidence required paragraph (3) of subd(b), in which case the court will grant a continuance of the trialfor a reasonable period. The procedure, burden of proof, and burdenof producing evidence as provided in subd. (b), shall applyregardless of when the motion is heard.

[Author has sat in too many courts as a spectator, where a jury washearing a charge (sic) of DUI, and no complaint was part of therecord, and the defendant did not have the required copy of thecomplaint, or any evidence that a warrant of arrest had issued inthe defendant's name]

VOL 1 CHAPTER 15 - 30PAGE 315

[So, if on a prior conviction no complaint/warrant is part of therecord, including a signed waiver of legal rights was placed on therecord, and waiver evidenced, regardless of any evidence otherwiseproduced at the trial, the court and the prosecutor were withoutsubject matter/personam jurisdiction, and defendant was deprived ofdue process of the law demanded in all prosecutions, mala in se andmala prohibita, and in civil actions]

[If it is a first time trial DUI, or any charge (sic) under VehicleCode by a civil extra-judicial notice, you must challenge theprosecutor, and the court, for their want of subjectmatter/personam jurisdiction, and never abandon the challenge untilthe court proves its jurisdiction]

[Interesting question. If the party/court moving against you has nojurisdiction, can they dismiss when no action has been initiated atlaw?]

[Where the action is civil in nature, though tried by a

quasi-criminal procedure, and the Plaintiff are the People ofCorporate State of California, and the People of the State have notbeen harmed mala in se, and cannot be harmed mala prohibita,because they are without standing in private statutes administeredby agencies composed of private individuals (see AdministrativeLaw, supra), where is the standing for the People to appearPlaintiff when they are a political corporation?]

PEOPLE: A state. A nation in its collective and 'political'capacity.

VOL 1 CHAPTER 15 - 31PAGE 316

POLITICAL: Pertaining or relating to the policy or theadministration of government, state or nation. Pertaining to, or incidental to, the exercise of the functionsvested in those charged with the conduct of government; relating toaffairs of state; as political theories. State ex rel Maley vsCivic Action Committee28 N23d 467, 470

POLITICAL CORPORATION: A public or municipal corporation; onecreated for political purposes, and having for its object theadministration of governmental powers of a subordinate or localnature. Curry vs District Tp 17 NW 191

[So, the People cannot assume a standing outside the politicalarena, and come into a civil action when they have not been harmedmala in se]

"As generally used in constitutional law, the entire body of thosecitizens of a state or nation who are invested with political powerfor political purposes"Boyd vs Nebraska 12 S. Ct. 375, 143 US 135, 36 Led 103

"The word 'people' may have various significations according to theconnection in which it is used. When we speak of the rights of thepeople, or of the government of the people by law, or of the peopleas a non-political aggregate, we mean all the inhabitants of thestate or nation........, But when reference is made to the peopleas the repository of sovereignty, as the source of governmentpower, or to popular government, we are in fact, speaking of thatselected (cont)

VOL 1 CHAPTER 15 - 32PAGE 317

(cont), and limited class of citizens to whom the constitutionaccords the right of participation in the office of government"Black's Constitutional Law Ed p 30

[So, unless the individual has committed a mala in se crime againstthe people, the People have not been harmed, as the matter is or isnot between an administrative agency department (DMV), and not somepolitical corporation, wherein, some public official employed bythat corporation appears as defendant]

[I learned about this when I tried to sue a magistrate and County Counsel for the Municipal County of San Bernardino appeared as attorney of record for the employee]

[Governmental powers are, of course, limited to mala in se prosecutions, or if the governmental corporation is sued as defendant, or corporation sues in an ex contractu action some contractee who has failed to perform the contract]

[Give this serious consideration as an affirmative defense, ifnamed as defendant by district attorney on a mere civil,extra-judicial notice to appear, whether a person within thejurisdiction of the Department or not a person within thejurisdiction of the Department]

ADDENDUM

"Mobile home is 'consumer goods' within the meaning of and asdefined in 9-109 (1)" In re Pelletier 5 USS Rep Srv 327 (DC, Me)ref (1968) Maine UCC 9-109(1) In re Fourgere 5 UCC 410 (1968)

VOL 1 CHAPTER 15 - 33PAGE 318

In re Ten Brock 4 UCC Rep Serv 712 (WD Mich 1966)

[Author did some research on Uniform Commercial Code under whichDMV must comply as to procedure license/contract relationships]

Implied Consent is Unconscionable License/Contract"Unconscionability is generally recognized to include an absence ofmeaningful choice on part of one of parties within contract terms

which are unreasonably favorable to other party, i.e.,unconscionability has both procedural and substantive element. Theprocedural element focuses on oppression and surprise, oppressiondealing with absence of bargaining power, and surprise encompassesthe extent to which supposedly agreed on terms are hidden in aprinted form typically drafted by party with superior bargainingposition" A& M Co vs FMC Corp 34 UCC Rep Serv 1129

ADDENDUM

VITAL![If a person has been properly charged, and the court hasjurisdiction, and someone brings forth the issue of a possible pleabargain, by a plea of guilty to a lower charge, don't]

[The usual lower plea is reckless driving, which has the sameserious effect as a conviction for DUI, as to insurance, possibleconditioning of privilege of driving, etc.]

[So, anyone offers you a deal, say no, demand that they take thematter to trial, they won't]

VOL 1 CHAPTER 15 - 34PAGE 319

Penal Code s1192.7 Plea bargaining, limitation(a) Plea bargaining in any case in which the indictment orinformation charges any serious felony, or any offense of drivingwhile under the influence of alcohol, drugs, narcotics, or otherintoxicating substance, or any combination thereof, is prohibited,unless there is insufficient evidence to prove the people's case,or testimony of a material witness cannot be obtained, or areduction or dismissal would not result in a substantial change insentence.(b) As used in this section, 'plea bargaining' means anybargaining, negotiation, or discussion between a criminaldefendant, or his/her counsel, and a prosecuting attorney or judge,whereby, the defendant agrees to plead guilty or nolo contendere,in exchange for any promises, commitments, concessions, assurances,or consideration, by the prosecuting attorney or judge, relating toany charge against the defendant or to the sentencing of thedefendant.

[There is the ball. Are you going to carry it?]

PSS Fourth Amendment applies on stops for DUI "As...suits forpenalties and forfeitures incurred by the commission of offensesagainst the law (VC is statutory law) are of this quasi-criminalnature, we think that they are within the reason of criminalproceedings for all purposes of the Fourth Amendment of theConstitution"Plymouth Sedan vs Pennsylvania 380 US 693, 85 S. Ct. 1246 14 Led2d170 (1965) quoting Boud vs US 116616, 634, 6 S. Ct. 524, 534, 29 Led 746 (1886)

VOL 1 CHAPTER 15 - 35PAGE 320

[For individuals stopped and arrested pursuant to a 'sobrietycheckpoint', keep in mind that peace officers/Highway Patrol inCalifornia, do no conduct such stops as peace officers, but as'traffic officers' under color of peace officers, and thereby,deprive the stopee of Bill of Rights, and become ripe for a 42 USCs1983 civil rights action as individuals using a 'state action' todeprive the individual of rights, which cannot be taken away undercolor of law. All of the above is strong medicine to cure an abuse,and misuse of a 'regulatory scheme', outside the juris of any peaceofficer or magistrate/justice of a justice court if you were notengaged in any activity regulated by Vehicle Code]

[Ingersoll vs Palmer 43 Cal3d 1321, 743 P2d 1299 (Oct 1987) was thefirst challenge taken to a state supreme court, and is worthy ofcomment by the author. Note must be taken that the petitioner wasnot a party with an interest, or the standing to petition the statesupreme court. Petitioner was a California taxpayer. Certainlyany actions/procedures by CHP in conducting 'sobriety checkpoints'was of no concern to a taxpayer, because he possibly would bestopped at a 'checkpoint' as a taxpayer. As a taxpayer he did notcome within the scope and duties of a traffic officer][The author has included a few pertinent pages from INGERSOLL, andit should be considered the Bible which shall be quoted/cited byany and all individuals who are arrested by a peace officer for aDUI and prosecuted thereafter]

VOL 1 CHAPTER 15 - 36PAGE 321

[It is the opinion of the author. that INGERSOLL was docketed forhearing only because there was enormous pressure to hear and ruleon the case, because the CHP was chomping at the bit to renew the

use of 'sobriety checkpoints', as misleading deceit by CHP, becausethere was so much antagonism to the original 'drunk drivercheckpoints'] [Nowhere, in Penal Code, can be found any sectionstating that it was/is a mala in se/misdemeanor to drivewhile drunk, or any degree of blood alcohol content.

Think about it. If to drive/use an automobile while sober, is not a crime of any nature, how/or why could anyone of such persons be lawfully stopped, and checked to see if they are sober?

So such a stop,would in itself, be an abuse of process, and the individuals rightsto travel with constitutional expectation of privacy, unless acrime has been committed] [If the individual reads/researches penalcode, he will discover that all references are under Vehicle Code,not penal code, thus, obviously, are administrative in nature][Author has included, in the RED BOOK, the dissenting opinion ofBrousard in INGERSOLL. For any reader who is or has been chargedand found guilty of a DUI, if you cannot find INGERSOLL locally,the author has put together the complete

INGERSOLL & Michigan Department of State Police et al vs RichSitz et al, 170 Mich App 433, 429 NW2d 180 & Michigan State Policeet al vs Rich Sitz Supreme Court of United States No 88 - 1897Cited in 90 Daily Journal 6696 (cont)

VOL 1 CHAPTER 15 - 37PAGE 322

(cont) US vs Harvey 701 F2d 800 (1983)

[This package is available for 50 FRN's cash or postal money orderblank, only, and should be the foundation of any timely appeal orhabeas corpus if you are in state custody, actual or constructive,where probation is granted before the imposition of the sentence ora 42 USC s1983 civil action]

"Evidence developed from a blood sample, which was seized withoutconsent, without a warrant, and without prior formal arrest, or atleast substantially contemporaneous arrest, was inadmissable inprosecution of defendant....since valid formal arrest, or acontemporaneous arrest, is generally required prior to the takingof the blood sample"US vs Harvey 701 F2d 800 (1983)

ARTHUR FRANK SANFORDc/o 5894 Villa DriveRancho Cucamonga, Cal

Applicant, Sui Juris

MUNICIPAL COURT, WEST VALLEY DIVISIONCOUNTY OF SAN BERNARDINO (center these two lines)

PEOPLE OF THE STATE OF NO. SH 556888

CALIFORNIA, APPLICATION FOR

Plaintiff in error LAW AND MOTION

vs HEARING

ARTHUR FRANK SANFORD [CRC, Rules 301, 303 (a) (1), 307Applicant 309] Date March 1, 1991 time 8:30 am Dept..................................................................................................................................

TO THE PRESIDING JUDGE OF ABOVE ENTITLED COURT:

ARTHUR FRANK SANFORD, Sui Juris, by this notice will appear March1, 1991, at 8:30 am, before the presiding judge of above court,where he will appear for Law and Motion hearing, pursuant toCalifornia Rules of Court;

CRC Rule 301: Applicability The rules in this division apply to proceedings in civil law

and motions in superior, municipal, and justice courts............................

CRC Rul 303: (a) "Law and Motion" includes any proceedings: (1) On application before trial for an order,..............

CRC, Rule 307: Assignment of Matters Except as provided by rule 375, the presiding judge (cont)

PAGE 367

(cont) or a judge designated by the presiding judge shall hear the proceedings in law and motion.

CRC Rule 309: Notice of Determination of Submitted Matters When the court rules on a demurrer or motion or makes an order or renders a judgment in a matter it has taken under submission, the clerk shall forthwith notify the parties of the ruling, order or judgment. The notification, which shall 'specifically identify' the 'matter' ruled upon, may be given by mailing a copy of the ruling, order or judgment, CONCLUSION This court of general jurisdiction, sits ministerially on allmatters of Vehicle Code when the applicant is a licensee of theDMV, the enforcement agency for Vehicle Code, if the applicant isa man/person within the jurisdiction of that department.

This appearance, by the applicant, is special in nature, andmade only for the purpose of challenging the general jurisdictionof this court, and specifically the subject matter jurisdiction andpersonam jurisdiction as absent and incompetent when no verifiedcomplaint has been filed by the district attorney, and no issueof a warrant of arrest by the court on a probable cause showingmala in se.

Further, on grounds that if this matter is, in nature avehicle code violation, a mala prohibita violation, theprosecuting attorney has no authority under Vehicle Code to appearand plead before this court as the people are without standingunder the Vehicle Code to by-pass the administrative procedure,first instance, as original jurisdiction (cont)

PAGE 367

(cont) lies with that department, and is exclusive as to thatdepartment.

This court sitting on a law & motion hearing is asked to takejudicial notice of the Notice of Demand that the District AttorneyMake the Extra-judicial Civil Notice to Appear More Definite &Certain, and the Denial of Any Accusatory Complaint & Recant of anInvoluntary Coerced Confession on (date if issue of Notice toAppear), which are made a part of this Law & Motion Hearing, andattached hereto, as to which court must take judicial noticepursuant to Evid C s310 Questions of Law & s550 Party Who HasBurden of Producing Evidence (b), The burden of producing evidenceas to a particular fact is initially on the party with the burdenof proof as to that fact (district attorney), and s350 OnlyRelevant Evidence Admissible, "evidence must correspond with thesubstance of the material allegations, and be relevant to thequestions in dispute", and s451, Matter Which Must be JudiciallyNoticed (a), "the decisional constitutional & public statutory lawof this state & of the United States and the CaliforniaConstitution", and s452 Matters Which May be Judicially Noticed(a), "The Decisional, Constitutional, & Statutory Law of any Stateof the United States, and the Resolutions and Private Acts of theCongress of the United States, and of the Legislature ofthis State"

This notice of judicial notice is, in nature, compulsory unders453, Compulsory Judicial Notice upon Request.

PAGE 369

This applicant must not be defined an opportunity to presentinformation to court s455 (a), "If the trial court has beenrequested to take, or has taken, or proposes to take judicialnotice of such matter, the court shall afford each party reasonableopportunity, before the jury is instructed, or before the case issubmitted for decision by the court.

Applicant must be noticed if the court denies the request totake judicial notice s456, "If the trial court denies a request totake judicial notice of any matter, the court 'shall', at theearliest practicable time so advise the parties, and indicate forthe record that it has denied the request"

Petitioner believes the court should, sua sponde, dismiss theabove captioned case, in the interest of justice, and/or order

district attorney to transfer to the DMV for Formal Hearing andDeclaratory Judgment.

Arthur Frank SanfordApplicant

PAGE 370

ARTHUR FRANK SANFORD5894 Villa DriveRancho Cucamonga, CAMovant

MUNICIPAL COURT, WEST VALLEY DIVISIONCOUNTY OF SAN BERNARDINO (center on page)

PEOPLE OF THE STATE OF Case Number

CALIFORNIA NOTICE OF DEMAND DEMAND THAT DISTRICTPlaintiff, in error, ATTORNEY MAKE THE EXTRA- JUDICIAL CIVIL NOTICE TOvs APPEAR MORE DEFINITE AND CERTAIN AND DEMAND THAT AARTHUR FRANK SANFORD VERIFIED COMPLAINT FILED WITH OFFICER'S NOTICE TODefendant, in error, APPEAR WITH DISTRICT ATTORNEY MAY BE MADE MORE DEFINITE AND CERTAIN AND THAT THIS COURT IS WITHOUT THE JURISDICTION WITHOUT THE

FILING OF ABOVE COMPLAINT

NOTICE THAT THE DISTRICT ATTORNEY'S QUASI-JUDICIAL POWER DOES NOTEXIST WITHOUT AN EXTRA-JUDICIAL CIVIL NOTICE TO APPEAR AND VERIFIEDCOMPLAINT FILED WITH HIM BY THE ARRESTING OFFICER AND COURT ISWITHOUT JURISDICTION WITHOUT A VERIFIED COMPLAINT FILED WITH AMAGISTRATE OF THIS COURT WITH PROBABLE CAUSE FOR ISSUE OF ARRESTWARRANT BY THE DISTRICT ATTORNEY'S OFFICE

In re: San Bernardino county Sheriff's Extra-Judicial CivilNotice to Appear citing VC s4000 (a)

Vehicle Code mandates the filing of a verified complaint, andissue of a warrant of arrest be filed with this court, and servedon defendant, Arthur Frank Sanford, or court is without subjectmatter and personam jurisdiction. Without the filing of saidpapers, making the notice definite, and certain both this court,and defendant, in error, lack information upon which (cont)

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(cont) this matter can properly proceed forward for adjudicationaccording to due process of the law. This notice of demand is based on the following case law,which is stare decisis binding on this court.

DEMANDS TO MAKE THIS NOTICE MORE DEFINITE, AND CERTAIN ARE SPECIALAPPEARANCES AND SHALL NOT BE CONSTRUED AS GENERAL APPEARANCES BYTHE QUASI-DEFENDANT

Defendant is at a loss for sufficient information fromplaintiff's notice upon which to base a defense, and properly makesthis motion before the court for a more definite and certainstatement, and raises objections to the notice on points of law(Kauffroath vs Wilbure 185 P2d 522)

A motion to make a notice more definite and certain is 'not apleading', and does not constitute a 'general appearance'; theobject of this motion to require the pleading to be made moredefinite and certain, is to enable the movant to demur or answer,or reply more intelligently, and the respondent does not waivehis right to notice the court, and the district attorney of their'want' of jurisdiction by moving to make notice more definite andcertain, when the nature of the charge or defense is uncertain

(Lawrence vs Lawrence 62SE 8; Smith vs Smith 50 SC 54; 27 SE 545; 31 SE 660)

NOTICES TO APPEAR ARE EXTRA-JUDICIAL CIVIL NOTICES AS THEY DO NOTBEAR THE SEAL OR SIGNATURE OF ISSUING COURT, AND CANNOT BECONSTRUED AS GENERAL APPEARANCES BY THE QUASI-DEFENDANT

A motion to make a notice more definite and certain is not a'general appearance' under civil practice, provided motion shall beby service of the Motion to Make the Notice More Definite andCertain and Raising Objection on Points of Law, as motions tocorrect or reform a pleading are not regarded as constituting a'general appearance' (199 NYS 519, 520; 172 NYS 273)

ALL NOTICES TO APPEAR ARE SPECIAL PROCEEDINGS, CIVIL IN NATURE,ALTHOUGH ADMINISTERED BY A QUASI-CRIMINAL PROCEDURE

The fact that the proceedings is brought in the name of thepeople, or of the state, will not prevent it from being regarded ascivil in nature (People vs Briggs 20 NE 820; 114 NY 56), nor is thefact that the proceeding may be commenced by warrant of arrest ofthe respondent, itself (cont)

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(cont) sufficient to change the character of the proceeding fromcivil to criminal (Alton vs Kirsh 68 Ill 261; 25 CJ p 1183 note 60)

EXTRA-JUDICIAL CIVIL NOTICES TO APPEAR, AND VERIFIED COMPLAINTSMUST CLEARLY ESTABLISH THE NATURE AND CAUSE OF AN ACTION

In US vs Cook, 17 Wallace 174, the court said that, "everyingredient of which an offense is composed must be accurately andclearly alleged. It is an elementary principle of pleading thatwhere the definition of an offense, whether it be at common law orstatute, includes generic terms, it is not sufficient that thepleading shall charge the offense in the same generic terms as inthe definition; but it must state the species, it must descend tothe particulars" 1 Arch Cr Pr and Pl 291. "The objective is,first, to furnish the accused with such description of the chargeagainst him, as will enable him to make his defense, and availhimself of his conviction or acquittal for protection against afurther prosecution for the same cause; second, to inform thecourt of the facts alleged, so that it may decide whether they aresufficient in law to support a conviction, if one should be had.

For this, facts are to be stated, not conclusions of law alone. Anoffense is made of acts and intent; and these must be set forthwith particularity of time, place and circumstances"

MATTERS OF ENFORCEMENT OF VEHICLE CODE ARE, IN NATURE, MALAPROHIBITA, AND NOT MALA IN SE VIOLATIONS

"Offenses created by statute, as well as offenses at commonlaw, must be accurately and clearly described, and, if the offensecannot be described without expanding the allegations beyond merewords of the statute, then it is clear that the allegations must beexpanded to that extent, as it is universally true that no chargeis sufficient, which does not accurately and clearly allege all theingredients of which the offense is composed, so as to bring theaccused within the true intent and meaning of the statute definingthe offense. Every offense consists of certain acts done or omittedunder certain circumstances; and, in the charge for the offense, itis not sufficient to charge the accused generally with havingcommitted the offense, but all the circumstances constituting mustbe specifically set forth" Arch. Cr. Pl. 15th Ed 43

EXTRA-JUDICIAL CIVIL NOTICE TO APPEAR ISSUED TO DEFENDANT, INERROR, DOES NOT SHOW A DETERMINATION BY ISSUING OFFICER THATDEFENDANT, IN ERROR, WAS A PERSON/MAN ENGAGED IN ANY ACTIVITY WHICHIS REGULATED AND ENFORCED AS TO THE DEFENDANT(cont)

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(cont) WITHIN JURISDICTION OF DEPARTMENT OF MOTOR VEHICLES

Practicing a profession, or otherwise engaging in a regulatedactivity, without a license is an offense, if the statute soprovides, whether or not the offender received or expectedcompensation, unless the statute specifies the receipt orexpectation of compensation as an element of the offense, in whichcase there is no offense if that condition is not fulfilled. Peoplevs Vermillion (1916) 30 Cal App 416, 417

NOTICE OF POINTS OF LAW AND PROCEDURE AND FACTS OF THE MATTER WHICHNEED TO BE MADE MORE DEFINITE AND CERTAIN AS TO THE QUASI-DEFENDANT

Extra-judicial civil notice to appear issued by the arrestingquasi-peace officer, and upon which district attorney alleges heappears for the people is vague and meritless.

Thus, a need exists, is the notice to appear standing alonewithout a mandated verified complaint filed by the districtattorney with the magistrate, sufficient at law to give this courtsubject matter jurisdiction? Notice upon which District Attorney is proceeding is unclear,vague and indefinite on points of statutory law, and fails tofollow due process of administrative law.

Notice fails as complaint as;

1. Cites the vehicle code, but fails to establish the status of the movant as a person within the statute.. 2. Notice does not allege breaches of the vehicle code by the movant, merely cites sections of code. 3. Notice does not allege fact(s) as to movant. 4. Notice fails to evidence that quasi-defendant movant has any binding duty to Vehicle Code 5. Notice fails to evidence that movant named on the caption of the notice is of the class regulated by VC. 6. Notice fails to name the movant within any body of the notice as a person in violation of the code.

(cont)

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7. Notice fails to evidence corpus delicti 8. Notice fails to show prima facie case. 9. Notice fails to evidence intent to violate code 10. Notice fails to give district attorney, or the court personam jurisdiction, when the matter is civil administrative law, and not a mala in se violation. 11. Notice failed to inform movant that the nature of the notice was a matter of 'ministerial action', in an administrative action to be heard by a 'ministerial official'.

Accordingly, movant motions that District Attorney make thenotice more certain and definite as a pleading, and on points ofstatute with force of law on the movant, and show his standing andstatus to appear, and show the statutory law which permits him toappear on a mere vague notice, which as a matter of administrativelaw must proceed first instance with the exclusive jurisdictionagency DMV, if movant is within its class, so that movant may, asmust the people, move, first instance, to the administrativehearing agency, if the agency has jurisdiction as to the movant.

Arthur Frank SanfordMovant

MEMORANDUM OF POINTS AND AUTHORITIES

This motion is made so that District Attorney, having had a copy ofthe Notice to Appear, filed with him but no verified complainthaving been filed with the hearing court, and no warrant of arresthaving been issued, and district (cont)

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(cont) attorney not having moved, first instance, to any agencywith jurisdiction to hear, that he do so, or if he 'standing' thathe file a competent complaint, clear and concise and definite, asmovant is unable to understand, and thus, present a defense, howthe existing extra-judicial civil notice to appear, standingalone, may be accepted by the court as a ground for jurisdictionbefore a 'ministerial officer'

NOTICE TO APPEAR, STATUTORY, IS WITHOUT FORCE OF LAW, WHEN THEPERSON NAMED ON THE CAPTION OF THE NOTICE IS NOT WITHIN THEJURISDICTION OF THE DEPARTMENT OF MOTOR VEHICLES, AND FAILS TOPLEAD THE STATUTE

"Pleading a statute is stating the facts which bring the casewithin it; and 'counting on it', in the strict language ofpleading, is making express reference to it by apt terms to showthe source of right relied upon"McCullough vs Colfax County, 95 NW 31 "Where a person is not at the time of a licensee, neither theagency, nor any official, has any jurisdiction of saidperson..........." O'Neil vs Dept Prof & Vocations, 7 CA2d 398;Eiseman vs Daugherty, 6 Cal 783

"It is impossible to prove jurisdiction exists absent asubstantial nexus with the State, such as voluntary subscription tolicense. All jurisdictional facts supporting claim that supposedjurisdiction exists must appear on the record of the court" PipeLine vs Marathon, 102 S Ct 2858 quoting Crowell vs Benson, 285 US22

"Only substantial relationship means jurisdiction" See vsSeattle, 387 US 541; Camara vs San Francisco, California, 387 US

523

PARTICULAR AGENCY WITH LICENSING POWER HAVE SUBJECT MATTER ANDPERSONAM JURISDICTION ONLY OF THEIR VALID LICENSEES

"Where a person is not, at the time, a licensee, neither theagency, nor any official, has any jurisdiction of said person toconsider or to make any order. One ground as to the want ofjurisdiction was, accused, was not a licensee, (cont)

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(cont) and it was not claimed that he was" O'Neil vs Dept Prof. &Vocations, 7 CA2d 398; Eisman vs Daugherty, 6 CA 783

"The accusation does not allege that appellant was licensedunder any act, the license was not offered inevidence.......evidence was that he did not come within itslimitations" King vs Bd Med Exam, 65 CA2d 644

PARTICULAR AGENCY WITH LICENSING POWER TO ENFORCE ITS REGULATIONSONLY HAVE JURISDICTION TO REGULATE THEIR VALIDLY LICENSEDLICENSEES, WHEN AT THE TIME OF THE 'STOP' LICENSEE WAS DRIVING,OPERATING FOR COMPENSATION OTHERWISE 'STOP' WAS ILLEGAL

"Agency has not authority to revoke or enforce any licensee,unless he is acting for compensation. Such an act is highly penalin its nature, and should not be construed to include anythingwhich is not embraced within its terms. There is no charge withinthe complaint, no evidence to prove the charge if it were in thecomplaint, that accused was employed for compensation........" Schomig vs Keiser, 189 Cal 596

"Practicing a profession, or otherwise engaging in a regulatedactivity, without a license, if statute so provides, whether or notoffender received or expected compensation, unless the statutespecifies the receipt or expectation of compensation as an elementof the offense, in which case there is no offense if that conditionis not fulfilled." People vs Vermillion (1916) 30 CalApp 416, 417

MERE APPLICATION FOR AND POSSESSION OF LICENSE FROM PARTICULARLICENSING AGENCY IS NOT 'IP SO FACTO' BINDING VALID CONTRACT,LICENSE, AND NEXUS WITH THE STATE BY ITS ADMINISTRATIVE AGENCY

The effect of a contract and a license is the evidence of the

contract, because licenses are unilateral, one has voluntarilyassigned power of attorney to the licensing agency. But power ofattorney and voluntary contract, with the license being theevidence of the contract, can be terminated when the party has notbeen enriched, enjoyed benefits, and considerations from thecontract.

"License is a 'unilateral contract', in which a promise isgiven in exchange for an act of forbearance"Black's law Dict 4th Ed

"Unilateral is an expression of absence of mutuality.Unilateral contracts are void where no mutuality of obligationexists, and only one party is bound" Hirsch vs Paragould, 127 SW623

"Unilateral contracts are merely promises to do something inthe future, provided the promisee performs some specified act, noenforceable obligation will be imposed upon the promisor unless thespecified act is performed, but if performed, contract matures andthe original promise is capable of enforcement"

"The requirement of experiencing benefit is important inAmerican Jurisprudence, as it is immoral and unethical to hold aperson to a contract who takes no enrichment from it"

WHERE A PARTICULAR AGENCY IS WITHOUT JURISDICTION OF PERSON NAMEDON CAPTION OF NOTICE, NO PERSON (S) MAY GAIN JURISDICTION OF APERSON OUTSIDE THE JURISDICTION OF PARTICULAR AGENCY

"Incompetent action by the agency, whether directly or througha court sitting administerial as hearing officer, must be clearlydefined in the statute before it has subject matter jurisdiction,without such jurisdiction of the licensee, all acts of the agency,by it employees, agents, and hearing officers, are null and void"Doolan vs Carr, 125 US 518; City vs Pearson, 181 Cal 640

"It is basic in our law that an administrative agency may onlyact within the area of its jurisdiction marked out for it by law"Endicott vs Perkins, 317 US 501

"Substance and form rule applies to government agency as wellas to its victims" Falbro vs Cir, 315 F2d 784

ALL MATTERS OF ADMINISTRATIVE LAW PROCEEDINGS LIE OUTSIDE JUDICIAL

JURISDICTION, ARE MERELY QUASI-JUDICIAL, ARE IN FACT MINISTERIAL INNATURE

Thus, where the court sits as 'ministerial officer' for the DMV,and the matter has not been, in fact, brought before it by truecriminal due process of

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(cont) law, mala in se violations, the court is sitting in capacityof 'ministerial officer', who is bound by the procedures underAdministrative Law. Such an 'official' is without discretionarypower, and so is bound by the administrative rules, and shouldtransfer the matter for a true administrative hearing before theDMV.

"Ministerial duty is one, regarding which, no thing is left todiscretion - a simple and definite duty, imposed by law, andarising under conditions admitted or proved to exist" Mott vs Hull152 P 92

"It arises when an individual has such legal interest in itsperformance, that neglect of performance becomes a wrong to suchindividual" Morton vs Comptroller etc 4 SC 473

"Ministerial officer is one whose duties are purelyministerial, as distinguished from executive, legislative orjudicial functions requiring obedience to the mandates of superiorauthority, and not involving exercise of judgment or discretion, isministerial officer" Kinney vs Bell 127 F 1002; State vs Loechner91 NW 874

CONCLUSION

By the above points and authorities, it is an obviousconclusion that neither the district attorney, nor this court tohear for the DMV, has not, nor cannot, have jurisdiction of theperson of the movant.

Accordingly, the DMV delegated court should sua sponde,dismiss this matter, in the interest of justice or in alternative,if movant was, in fact, a practicing licensee at the time of the'traffic stop' order the district attorney to move to the DMV fortheir determination

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Should this court refuse to obey its mandated ministerialduty, and dismiss for want of proof of jurisdiction, movant noticesthis court that the movant has been denied the protection of thelaw of this State's Constitution, and of the Constitution of theUnited States and ground for a civil action in the district courtsof the United States.

A motion to this court-for dismissal of proceedings withinexclusive jurisdiction of administrative agency is made a part ofthis Demand to Make the Notice more Definite and Certain.

If this court does not sua sponde dismiss, or order thetransfer, then the movant will file a Petition for Writ ofProhibition to prevent this court from assuming or acting in excessof its general jurisdiction, which is solely vested in the DMV,which is within the Business, Transportation & Housing Agency.

Arthur Frank SanfordMovant

UNDER THE DOCTRINE OF LACHES, A MAGISTRATE SHOULD ESTOP PLAINTIFFFOR THE PEOPLE FOR GUILT OF LACHES

[A quasi-defendant who has an opportunity to plead an estoppel, onwhich his cause or defense depends, must do so]

"A failure to do some act which should be done or to claim orenforce a right at a proper time"Hutchinson vs Kenny 27 F2d 254, 256

"Neglect to do some act which one should do, or to seek toenforce a right at a proper time"Jett vs Jett 171 Ky 548

"To create 'estoppel by laches', party sought to be estoppedmust, with knowledge of transaction, have done something to misleadother party to his prejudice"Wisdom vs Sims 144 SW 232, 235, 236

[Plaintiff and issuing officer, at all times have misledquasi-defendant to believe that they have jurisdictionof him, yet have failed to timely file a demanded verifiedcomplaint pursuant to 41513 (a) VC, Pen C s9948 et seq]

[The guilt of laches, by the prosecutor, is evidenced by thefailure of the docket/record of the case to show a filing of anaccusation by a verified complaint, and issue of summons/warrantnaming quasi-defendant]

"Laches, is neglect for an unreasonable and unexplained length oftime, under circumstances permitting diligence to do what could orshould have been done. The omission to do what the law requires toprotect one's rights under (cont)

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(cont) circumstances misleading or prejudicial to adverse party" School District #14 vs School District#1, 254 NW 174

[As Vehicle Code violations are mala prohibita, and are specialproceeding in civil process, laches are relevant to the estoppingof plaintiff to proceed when no verified complaint is timely filed.Action is estopped]

"To establish the defense of laches, a party must show (1) therewas an inexcusable delay in the assertion of a known right and, (2)the party asserting laches has been prejudiced"Trustee Alaska Laborers vs Ferrel 812 F2d 512, 518

PREJUDICIAL ERROR: Error substantially affecting legal rights andobligations. Black's 4th p 1343

[When there has been no filing of, and service of a verifiedcomplaint, and its order to appear upon quasi- defendant, he willbe prejudiced to his harm if the magistrate permits, and knowinglysupports the cause of prosecution by the plaintiff absent dueprocess of the statutory law]

"When the principles of natural justice require disclosure, theyraise the duty and bind the conscience. In such cases 'equity' willimpose an estoppel to the extent necessary to protect the innocentparty"Altman vs McCollum 107 CalApp 2d Supp 847

EQUITY: In its broadest and most general signification, this termdenotes the spirit and the habit of fairness, justness, and rightdealing which would regulate the intercourse of men with men, - the

rule of doing to all others as (cont)

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(cont) we desire them to do to us; as it is expressed byJustinian, "to live honestly, to harm nobody, to renderto every man his due" It is therefore the synonym of natural rightor justice.

[Question of violations mala prohibita, are civil causes underCivil Vehicle Code, are not brought into a court at-law or commonlaw jurisdiction. The rights of a class of person named within thestatute, or a person not named within the statute, as in instantcase, even though certain violations may permit penal penalties andare quasi-criminal procedure, they remain civil codes. Thus, thereis the expectation of equity jurisdiction principles]

EQUITY JURISDICTION: In its ordinary acceptation, as distinguishedon the one side from the general power to decide matters at all,and on the other from jurisdiction 'at-law' or 'common law', is thepower to hear certain kinds and classes of civil causes accordingto the principles of the method and procedure adopted by the courtof chancery, which decisions may involve either the determinationof the equitable rights and interest of the parties to bemaintained, or the violation of which furnishes the cause ofaction, must be equitable rather than legal. Black's 4th 1038

LEGAL: Conforming to the law. Black's 4th p 1038

LAW: That which must be obeyed and followed by citizens, subject tosanctions or legal consequences,is a law.

VOL 1 CHAPTER 16 - 4PAGE 385

[So, the bottom line here is, Statutes which are private in nature,and only apply to a defined/named certain class ofpersons/individuals, while engaged in some activity for which theyhave applied for a voluntary license, if they are to be prosecutedunder quasi-criminal procedure, must be proceeded by the filing ofa verified complaint, etc., and when it is not done, then the guiltof laches estops any proceeding against an individual/person by thePeople at the time of an appearance before a magistrate sittingunder administrative law]

[Statutes have force of law only upon those enjoying the benefitsof the statute]

ADDENDUM

ESTOPPEL: Conduct intended to deceive or of such nature thatreasonably prudent person would have been deceived.Cellized Fl vs Glen Falls 156 A 845, 846

[It should be obvious that it was the intent of the quasi-peaceofficer intended to deceive, that by someone putting into the courtdocket a Notice to Appear, captioned People of the State ofCalifornia, Plaintiff, and

informing on a request as to the true nature of a Notice, and are informed that it constitutes a complaint suitable to give the magistrate jurisdiction, and that

the People are deceiving by implication that the State has beenharmed. Neither state has been harmed because of an 'interest' hadby the state on a mala prohibita citation, nor have the people beenharmed, absent a substantive crime, mala in se, by some claim that all individuals (cont)

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(cont) are of the class compelled to comply with Vehicle Code, andwithin the jurisdiction of the DMV.][The cop, the district attorney, and the magistrate proceeding onmere notice to appear are designedly inducing a penalty under fraudas to an individual not within the strictures of Vehicle Code/jurisof DMV] [An action for estoppel arises when the plaintiff (s) byomission to speak, to state the true nature of the matter beforethe magistrate, constitutes actual or constructive fraud to theharm of some individual] [Estoppel, in its broadest sense, is apenalty paid by someone perpetrating the wrong by known fraud, or by an affirmative act which, even though without fraudulentintent, may result in legal fraud on another]

[So, person perpetrating the fraud loses if he argues he did notknow his act was fraudulent] [At all times during course of thismatter, plaintiff, the PEOPLE, and the court sitting administerial,have misled the quasi-defendant by stating or acting as though theydo have jurisdiction complete, and yet, the

record shows that they have not filed any competent process, namingthis quasi-defendant; and service of a complaint, and warrant andthis forum/tribunal has failed to demand that the PEOPLE bring thematter competently before this court. Their failure to timely actconstitutes estoppel by laches]

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THIS CHAPTER DEALS WITH THE FACT THAT ALTHOUGH MALA PROHIBITAVIOLATIONS ARE CIVIL CODE VIOLATIONS, ARE IN FACT HEARD BY SPECIALPROCEEDINGS IN CIVIL CODE, THE ALLEGED VIOLATOR IS INFORMED THATTHEY ARE TRIED AS CRIMINAL ACTIONS, AS THOUGH MALA IN SE.

[The man on the bench, a magistrate when hearing vehicle codeissues, presents himself to the person with the notice to appear asa judge, a judicial officer. Doesn't the nameplate on his benchread 'JUDGE'?]

[So, lets take advantage of the deception perpetrated by the court.It is now known to the reader of this book that all matter ofNotices to Appear are, in fact, quasi-criminal proceedings, (thatwhich seems to be, but which is not) so let's set the record forthat time when the magistrate answers your question at anappearance for arraignment]

[Question: Your Honor, I have a need to know if this notice toappear is a complaint, and will be heard and prosecuted by acriminal proceeding so that I can understand if I should hire alawyer before I enter a plea on the Notice to Appear]

[What the author wants you to do is 'set up' the man on the bench,and the court, to have him inform you that it is a criminal actionand yes, he is a Judge]

[Now, when you have been through the 'money collection mill', a lacafeteria style; enter here, pay the cashier and get out of here,you are holding up the line, (cont)

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(cont) which the court calls a 'trial', and the man says "I findyou guilty and the fine is $XXXXX." "Can you pay the fine now ordo you need time to pay? The magic words are "Can you pay"]

[Now, having read this book, and being a natural born rebel whoresents being lied to, and certain persons under color of lawreaching into you money pocket upsets you, you answer "NO! I cannotpay the fine"

"I am filing a Motion with the County Clerk for a hearing on why Icannot pay the fine"]

[Write and let the author know how you made out. The author usedthis tactic and was successful, and several people that he hascounseled have been successful. The result was that the man on thebench suspended the fine. So, if you are staring at a large, largefine, hundreds of dollars, it is certainly worth a try. And youstill have the option of an appeal on the grounds of nojurisdiction.]

ADDENDUM[Remember, the state court is informing that Federal Reserve Notesof Obligation are money for purposes of paying a fine and itsassessment, and is a dollar but it is not a dollar, nor does itrepresent a note entitling the holder to exchange it for a dollar][Now, set him up again. Ask him if a Federal Reserve Note is adollar or dollars as the case may be]

"The Constitution was 'designed to provide the same currency,having a uniform value in all the States'. It was for that reasonthat the power to regulate the value of (cont)

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(cont) money was conferred upon the Federal Government, while thesame power, as well as the power to 'emit bills of credit', waswithdrawn from the States. The States cannot declare what shall bemoney, or regulate its value. Whatever power there is over thecurrency is vested in the Congress"Norman vs B&O etc., 294 US 240, 30379 L ed 885, 900, 55 S Ct 407, 414

BILL OF CREDIT. In the constitutional law. A bill or promissorynote issued by the government of a state or nation, upon its faithand credit, designed to circulate in the community as money, andredeemable at a future dayHale vs Huston 44 Ala 138, 4 Am Rep 124

[Now, read how Federal Reserve Notes of Debt can be made legaltender by Congress, and the use of FRN's legal tender for partieswith a relationship with the Federal Government; i.e., fed governemployee, recipient of federal largesse, elected federal officeholders, or those who choose to use FRS's either knowinglyor unknowingly. Those persons can be required to use FRN's who havea nexus/benefit from the Federal Government, but the state andindividuals cannot be compelled to use FRN's]

Congress provided in 31 USCA s463 in part, that; "Every provisioncontained in, or made with, respect to any obligation whichpurports to give the obligee a right to require 'payment' in goldor a particular kind of coin or currency, or in an amount in moneyof the 'United States' measured thereby, is declared to be againstpublic policy; and no (cont)

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(cont) such provision shall be contained in or made with respectto any obligation hereinafter incurred.Every obligation heretofore, or hereinafter incurred, whether ornot any such provision is contained therein, or made with respecthereto, shall be discharged upon payment, dollar for dollar, in anycoin or currency which at the time of payment is legal tender forpublic and private debts"

[Note that it states 'discharge', and the statement of private asagainst public debt. The federal debt of Congress may be requiredfor payment in discharge of its debt; the payment in discharge forprivate debt cannot be compelled between private parties or theStates]

"The courts have consistently held that the Constitution leaves thepower to declare what shall be legal tender for payment of alldebts to congress. The mere utilization of a standard of legaltender prescribed by Congress is not a state action as prohibitedby US Const Art 1 s10, but rather an effectuation of validlyexercised constitutional power of Congress under US Const Art 1 s8"Chermack vs Bjornson 223 NW2d 659

[United States by Congress sitting in Washington DC can do so, butthe States are forbidden, and cannot demand/require FRN's inpayment of debts/fines/assessments to merely discharge those

obligations]

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[Additional grounds are, if you can show by an affidavit financialstatement, that to pay the fine would impose a hardship on a man'sfamily and his creditors]

"One who is convicted of a crime and fined, is not to be imprisonedin satisfaction of the fine, or in lieu thereof, if he is unable topay the fine" State ex rel Pederson vs Blessinger (1972) 56 Wisc 286

PAGE 392

ARTHUR FRANK SANFORDc/o 5894 Villa DriveRancho Cucamonga, CA714-980-8559Movant

MUNICIPAL COURT, WEST VALLEY DIVISIONCOUNTY OF SAN BERNARDINO (center these)

PEOPLE OF THE STATE OF NO. 556888

CALIFORNIA, NOTICE OF MOTION. MOTION THAT MOVANTPlaintiffs, In Error DOES NOT HAVE THE ABILITY TO PAY ANY FINEvs MEMORANDUM OF POINTS AND AUTHORITIESARTHUR FRANK SANFORD, IN SUPPORT OF MOTION

Movant & Defendant In Error.................................................................

TO THE CLERK OF THE COURT:

Movant, Arthur Frank Sanford, will appear special at the abovenamed court, located at .........................on...........................at.........................., at whichtime he will notice the magistrate of the court of its want ofsubject matter jurisdiction when on a judgment of guilty on (date),the magistrate imposed a fine and assessment in the amount of$205.00. This motion is based on the fact that the defendant, in error,is bankrupt, and without the ability to 'pay'the fine andassessment sentence, imposed on the above date by this court. Movant has no lawful money of the state by which he (cont)

PAGE 393

(cont) could 'pay' the sentence. Movant cannot be deemed acontempter because he cannot 'pay' at-law, the sentence imposed bythis court.

Arthur Frank SanfordMovant

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOVANT'SINABILITY TO PAY THE SENTENCE

I

IF THE MATTER BEFORE THE COURT ON THE ABOVE DATE WAS A CRIMINALPROSECUTION, AND TRIAL WITH THE JUDGE OF THIS COURT CONDUCTING THETRIAL THEN THIS MOVANT AND DEFENDANT HAS IMMUNITY FROM THESENTENCEIMPOSED ON THE DATE ABOVE BY THIS JUDGE. A JUDGE CANNOT ACT WITHJUDICIAL POWER IF HIS COMPENSATION IS DIMINISHED; THE PAYING OFSTATE OR FEDERAL INCOME TAXES

Any judge over whom the Internal Revenue Department has powerby way of income tax is incapable of receiving or exercising any'judicial' power as it is in violation of Article III of the UnitedStates Constitution with limits on the judicial powers wherejudge's compensation shall not be diminished by Congress.US vs Woodley, 774 F2d 1175, (Dist Ct., Hawaii)Citing: Evans vs Gore, 253 US 245;

O'Donahue vs US, 289 US 516

USC Article III, Section 1:The Judges, both of supreme and inferior Courts, shall hold theirOffices during good Behavior, and shall, at stated Times, receivefor their Services, a Compensation, which shall not be diminishedduring their Continuance in Office.

II

NO STATE SHALL ......................; MAKE ANYTHING BUT GOLD ANDSILVER COIN A TENDER IN PAYMENT OF DEBTSUnited States of America Constitution, Article I, Sec 10

Article I Sec 10 is binding on California (cont)

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(cont) thus, prohibits this court from accepting Federal ReserveNotes where there is no federal nexus by a state court. This statecourt, as all agencies/branches of the State government, CaliforniaRepublic, is bound by Art 1, sec 10. As the State Legislature hasnot declared gold and silver coin issued by California is the legaltender in payment of debt (s) movant has no ability to pay the fine(debt) and assessment (tax) ordered on (date).

III

STATE LEGISLATURE HAS NEVER DECLARED THE MONEY OF ACCOUNT OFCALIFORNIA FOR 'INLAND', 'INTRA-STATE' PURPOSES, USE OF FEDERALRESERVE NOTES MAY NOT BE USED BY THE MOVANT OR THIS COURT OR ANYOFFICER OF THIS COURT FOR THE PAYMENT OF DEBT WITHIN CALIFORNIA.COURTS HAVE NO JURISDICTION WITHOUT MONEY OF ACCOUNT.

State never having declared what shall be legal tender for thebusiness of the state, 'inland, intra-state', it cannot use federalnotes of obligation as the Constitution denies that right to theseveral states of the Union.

"Absent a legal tender, no damages, fines, bails, penalties,license fees, awards, can be extracted as only legal tender can becompelled to use" UCC Wash., RCW 62A 3-107

"It being impossible to obtain the remedy sought, the stateand their agencies/municipalities being impotent to enforce theirjudgments/decrees, and thus, should not even exercise theirotherwise 'general' jurisdictions"Louisiana vs NAL, 106 La 621

"Mere equity is impotent to correct the defect"McGraw vs Gortner, 96 Md 489

"A law which restricts their power to render and enforce ajudgment is, therefore, a limitation upon the exercise of theirjurisdiction; and a law which destroys or impairs the effect whichtheir judgments, without such law would have, is equally so"Fordyce vs Beecher, 2 Tex. Civ. Ap. 29, 31

PAGE 395

"Unable to 'comply"31 ALR 649

"to comply is impossible, made so by the failure of the statein its constitutional duty, US Const 1: 10: 1, the remedy restingin the hands of the state" Rio Grande vs Darke, 167 P 241

The individual cannot be compelled to use federal money (Vickvs Howard, 136 SE 101; 116 SE 465) nor federal negotiableinstruments, federal Reserve Notes (Swanson vs Fuline, 248 F Supp364) the federal reserve being 1238 at 1241) which is engaged incommercial activity governed by law of merchants (UCC 72A-1-103)

"Governments lose their immunity and descend to level ofprivate corporations when involved in commercial activity enforcingnegotiable instruments, as in fines, penalties, assessments, bails,taxes, the remedy lies in the hands of the state and itsmunicipalities seeking remedy" Rio Grande vs Darke, 167 P 241

"The principles of estoppel apply against the state as well asindividuals" Cal vs Sims, 32 C3d 468

IV

MOVANT STATES THAT HIS INABILITY TO COMPLY WITH ANY JUDGMENT ANDORDER TO PAY A FINE AND ASSESSMENT IS A DEFENSE TO A CHARGE OFCONTEMPT, EITHER DIRECT OR INDIRECT, BY THIS COURT, WHEN MOVANT ISWITHOUT THE ABILITY TO PAY A FINE AND ASSESSMENT

Fines, penalties and assessments on judgments are debts &taxes. The issue raised by the movant is that this court recognizesand honor the constitutional immunity of the movant from an orderof contempt, when he cannot pay, at law, a fine and assessmentordered by this court, that under that doctrine of immunity thiscourt cannot imprison him because California has no 'money ofaccount', gold or silver coin.

This court must take Judicial Notice of the following: (cont)

PAGE 396

California Government Code s6850: "The money of account of this State is the DOLLAR, and allproceedings in courts shall be kept and had in conformity with thissection"

In tandem with above:

Title 31 US Code s371 "The money of account of the United States shall be expressedin dollars or units, dimes or tenths, cents or hundredth part of adollar; and all proceedings in the courts shall be kept and had inconformity to this regulation"

A judicial determination is absolutely necessary to movant'sability to pay at law, as opposed to discharge in equity, any fine,penalty or assessment of this court.

Court is further demanded to take judicial notice that theCoinage Act of 1792 which declared gold and silver coin to be themoney of account of the several states and the United States hasnever been amended, rescinded nor abrogated and so is binding onthis state and this court.

Movant calls to the court to take Judicial Notice and rule onthe notice by citing the authority for its ruling as to FederalReserve Notes being notes of obligation and not redeemable inlawful coin, money of account, how he can obtain any lawful coin(dollar) based on the following:

Title 31 USC 408 prohibits the redemption of any currency intogold and Title 31 USC s405(a)-3 prohibits the redemption of anyUnited States currency dollar for dollar into (cont)

PAGE 397

(cont) gold and silver. so the law itself prohibits movant fromusing any money of account. As checks are not money in themselvesbut merely simple order forms instructing the bank to movetransaction balances, which are MONEY, but banks do not havecash/money of account which may be transferred. For a check tobe negotiable instrument it must contain an unconditional promiseto pay a sum certain in money and be payable on demand or at adefinite time (UCC 3-103 (b) (c). Thus, neither the bank nor themovant is able to comply with the law of money and cannot be heldas a contemner.

31 ALR 649, supplementing 21 ALR 1256: "The rule laid down in the earlier annotation on thisquestion, that the part, to render obedience to an order or decreeof court, is a good defense to a charge of contempt for thedisobedience of the order or decree, is supported also, by thefollowing decisions"

California; Ex parte Overend (1898) 122 Cal 201; Bakeman vs Sup Ct (1918) 37 CalApp 785; Myers vs Sup Ct (1920) 46 CalApp 206; Ex parte Von Gerzabeck (1923) 219 Pac 479

"In Meyers vs Sup Ct, supra, it was held that the court had nopower to punish one in contempt for failure to comply with ajudgment for payment of money, since it was evidenced that it wasphysically impossible for him to comply (cont)

PAGE 398

(cont) with the court's order. The court statutory provisions inthat state that, when contempt consists in the omission to performan act 'which is yet in the power of the person to perform' he maybe imprisoned until he shall have performed it, and that thedisobedience of any lawful judgment, order, or process of the courtconstitutes contempt, and said that under the provisions of thestatute it must appear from the warrant of commitment (1) that thething ordered to be done is within the power of the person soordered to perform, and (2) that such person, although he has itwithin his power to do so, has disobeyed the court's lawfulorder. An order adjudging one guilty of contempt for failure toperform an act directed by the court to be performed is void, as a

basis for the imposition of imprisonment, unless it appeartherefrom that it is within the power of such person to perform theact" Baker vs Sup Ct, supra

Although the following cases cited pertain to an order to payalimony, the principles of the law and procedure and constitutionalimmunities apply to any threat of warrant for contempt charge bythis court.

In Newsome vs Newsome (1923) 117 SE 90, that State SupremeCourt held, "that the trial court had erroneously adjudged thehusband to be in contempt for failure to comply with an order topay alimony, where his sworn answer, which was undenied, and theuncontroverted evidence introduced by him showed his inability tocomply (cont)

PAGE 399

(cont) with the order. That inability on the part of the husbandwhich is not due to his own fault, to conform, or perform with thejudgment, constitutes a complete defense to a charge of contempt,it is the rule laid down, also, in Armijo vs Armijo (1923) 217 Pac623

"Requiring a convicted indigent defendant upon being sentencedor otherwise ordered to pay a fine and penalty assessment to servethem out in jail at a specified rate per day because he is unableto pay the constitutes an invidious discrimination on basis ofwealth in violation of the Fourteenth Amendment"

In re Antazo, 1979, 3 Cal3d 100

V

MOVANT STATES THAT HE HAS ATTEMPTED TO OBTAIN LAWFUL MONEY OFCALIFORNIA, GOLD AND SILVER COIN. HAS BEEN UNSUCCESSFUL AND THUSCANNOT AND DOES NOT HAVE MEANS TO COMPLY WITH THE TRIAL COURT'SJUDGMENT AND ORDER THAT MOVANT PAY A FINE AND ASSESSMENT

As California has not complied with Article 1 s10 of theUnited States Constitution that "No State shall.....make any Thing but gold and silver Coin a Tender in Payment ofDebts" which is binding on the several States and thereby on thiscourt, a department of California under its constitution which

conducts business of the court. "Acts of Congress making notes of the United States a legaltender do not apply to involuntary contributions in the nature oftaxes, fines, assessments, debts exacted under State Laws"Hagar vs Land Reclamation 111 US 701PAGE 400

And, as lawful money is not available to the movant from anygovernment association, corporation, functioning as banks, whichare prohibited from putting into circulation any Thing but gold andsilver Coin if a State Bank or if a National Bank and United StatesNotes and Federal Reserve Notes of Obligation of the Congress ofthe United States are not exchangeable for gold or silver Coin.

California Constitution Article 12, s5 Issuing Money No corporation, association, or individual shall issue or putinto circulation, as money, anything but lawful money of the UnitedStates. Corporations or associations may be formed for suchpurposes (to act as though banks) under general laws,......... "..........to prohibit any person, association, or corporationfrom 'exercising the privilege of banking or creating paper tocirculate money' referred merely to the issuance of bank bills orpaper to circulate as money"Bank of Martinez vs Hemme etc (1895) 105 Cal 376

As the state cannot issue bills of debt or paper to circulateas money neither can any private corporation, association orindividual issue or use Anything but gold and silver coin. Movant, now a debtor to California by a judgment and order ofthis court, is without the ability to pay his debt to this court.

PAGE 401

Movant only has access to and must use Federal Reserve Notes,which are merely debt instruments, evidence of debts of theCongress, has not been able to redeem such notes issued by theFederal Reserve Bank and as the United States Treasury wasabolished in 1921 by the Act of 1920, 66th Congress Session II Ch214 amending Section 3595 this movant cannot turn to the newlycreated Department of Treasury, a private corporation dealing onlyin commercial paper which is not redeemable for lawful money mintedcoin of gold and silver.

REDEEMABLE: "Subject to an obligation of redemption; embodying, orconditioned upon, a promise or obligation of redemption;controvertible to coin, as, a redeemable currency"US vs North Carolina 136 US 211, 34 L ed 336

Based on the above authority/case law, movant attempted toredeem Federal Reserve Notes at the Los Angeles Branch of theFederal Reserve Bank. He was informed that no 'authorized' federalreserve notes have been issued for more than 20 years, and that thebank could not redeem notes for gold or silver Coin as thebank did not have gold or silver Coin.

CONCLUSION: As federal reserve notes are not legal tender for the'payment' of fines, which are debts, or assessments, which aretaxes, (see HAGAR supra p 8) and California cannot obligate themovant to use notes of obligation (debt due) (cont)

PAGE 402

(cont) involuntarily (see HAGAR) the movant is without the/has noability to 'pay' the judgment as Federal Reserve Notes are not'dollars' as 'dollars' are coined 'dollars' of the United States. (see Bank of New York vs Bd of Supervisors etc 74 US 60 (1869);Bronson vs Rodes 7 Wall 229 (1886)

Foot Note: Municipal Court Judge Larry Moritz, City of Spearville, Kansasreads person before him their 'money rights' for the payment offines and assessments imposed by him on his judgments. "Its theguarantee that they are exempt from having to pay the sum is theychoose to object to the form of money in which the sum is demanded.If Congress wont keep its part of the Constitutional bargain, andcoin money of gold and silver like Art 1 s8 cl 5 commands, there isno way my court can require anyone to pay fines. It is clear by Art1 s10 of the United States Constitution and by Title 31 s371 ofUnited States Code that this court can only make gold and silvercoin a tender in payment of debts. However, this court willaccept other forms of money such as Federal Reserve Notes orpersonal check if voluntarily tendered. But I sure cant makeanybody pay in paper" Arthur Frank SanfordMovant

Page 403

This letter from :

Pete Wilson UNITED STATES SENATE Washington, DC 20510 July 3, 1984

Committees:Armed Services, Agriculture, Nutrition, and Forestry; SpecialCommittee on Aging

Mr. Arthur Frank Sanford3157 Camino AvenueHacienda Heights, CA 91745

Dear Mr. Sanford:

Thank you for contacting me regarding the relationship of theFederal Constitution to the CaliforniaState Constitution.

In regard to your question about the legal tender laws,Article I, Section 10, of the Constitution of the United States isbinding in the state of California. Article I, Section 10 of theConstitution prohibits any state from making anything other thangold or silver coin legal tender for the payment of debts. Whilethis provision of the Constitution prohibits any state from makinganything other than gold, silver, or silver coin a legal tender inpayment of debts, the Supreme Court in 1884 interpreted this clauseto apply only to the states and not the federal government. Thatruling is still in effect. Since Article I, Section 8, Clause5 of the Constitution grants to the federal government theexclusive power to coin money and regulate its value, and since thefederal government is not limited in what it may designate as legaltender, it is constitutional for Congress to declare as it has,that Federal Reserve Notes, the chief form of currency incirculation today, are legal tender for all debts.

Your concern expressed in your letter may stem from a beliefthat only gold and silver coin or currency backed by gold andsilver can be legal tender. I want you to know that historicallythis has not been the view held by either Congress or the Courts.

Again, thank you for writing. I appreciate your interest and

expression of concern.

Sincerely,

Pete Wilson

PAGE 404

SAME LETTER FROM SENATOR WILSON DATED APRIL 27, 1984

VOL 1 CHAPTER 18 - 1PAGE 405

ARRAIGNMENT PROCEDURE MUST CONFORM WITH FOURTH AND FIFTHAMENDMENTSAS ALL MATTERS OF VEHICLE CODE VIOLATIONS EVEN THOUGH ONLY MALAPROHIBITA ARE TRIED AS QUASI-CRIMINAL MALA IN SE VIOLATIONS AND SOMUST COMPLY WITH PENAL CODE

[Vehicle Code consider violations of the code to be arrestableoffenses by a peace officer, even when merely infractions]

s40300 VC. The provisions of this chapter shall govern allpeace officers in making arrests for violations of this codewithout a warrant for offenses committed in their presence, but theprocedure prescribed herein 'shall not otherwise be exclusive ofany other method prescribed by law for the arrest and prosecutionof a person for an offense of like grade'. s40306 VC. (a) Whenever a person is arrested for a misdemeanoror an infraction and is taken before a magistrate, the arrestingofficer shall file with the magistrate a complaint stating theoffense with which the person is charged.

[Now it can be understood why the peace officer (sic) rather thanhaving to file first a complaint and then taking the arrested tothe magistrate will Release Upon Promise to Appear under s40500 (a)to whit; Whenever a person is arrested for any violation of this codenot declared to be a felony, or for any violation of an ordinanceof a city or county relating to traffic offenses (remember trafficoffenses can only be committed by a person (cont)

VOL 1 CHAPTER 18 - 2PAGE 406

(cont) while engaged in trafficking) and he is not immediatelytaken before a magistrate, as provided in this chapter, (40306) thearresting officer shall prepare in triplicate a written notice toappear in court or before a person authorized to receive a depositof bail, (that is the clerk before whom you appear who will thenset an arraignment) containing the name and address of the person,the license number of his vehicle if any, the name and address,when available, of the registered owner or lessee of the vehicle,the offense charged and the time and place when and where he shallappear.

[Now, when the person appears at the time and place indicated onthe notice, a complaint will not have been filed with themagistrate or with the law enforcement officer by the arrestingofficer; which the author believes would be the district attorneyfor the county or a city attorney where there is one][This oversight (sic) is overlooked by the court although it isdemanded by the code itself]

Traffic Offenses - Judge in Capacity of Magistrate Arresting officer 'must' file a complaint under oath statingthe offense charged and a copy of the notice to appear to theofficer's law enforcement agency. VC sss40500, 40505, 40506. Thefailure to appear mandates a regular verified complaint, Penal C.sss 948, 963, 11.36 filed with the court.

[If a complaint under oath stating offense charged, (cont)

VOL 1 CHAPTER 18 - 3PAGE 407

(cont) must be filed with a copy of the notice to appear thenobviously the notice, standing alone as an extra-judicial form,unverified, does not fulfill the need for a complaint]

[Upon an appearance of the arrested person there will not have beena complaint, pursuant to vehicle code procedure filed by anyofficer of the court, i.e., district attorney filing with the courtor magistrate of the court]

[So, now we must look to the Penal Code beginning with s948 et seq]

s949 Penal Code. First pleading on the part of the people inall inferior courts is the 'complaint', except as otherwiseprovided by law.

[Except as otherwise provided by law is an indictment, information,accusation]

COMPLAINT: In criminal law. A charge, preferred before a magistratehaving jurisdiction, that a person named has committed a specifiedoffense, with an offer to prove the fact to the end that aprosecution may be instituted. It is a technical term, descriptiveof proceedings. Hobbs vs Hill 32 NE 862

[Now, understanding that no court has subject matter jurisdictionwithout the filing of a complaint, under oath, naming an accused,with the court, and copy of the notice. If a complaint has not beenserved with a warrant of arrest and subsequently filed with theclerk of the court and made part of the record of the courtsfiles, the court is without subject matter jurisdiction and socannot have personam (cont)

VOL 1 CHAPTER 18 - 4PAGE 408

(cont) of the person][Now, even though the court on a notice to appear will accept aplea of guilty/nolo contendere without jurisdiction by the filingof a verified complaint by a prosecutor, it then puts the cartbefore the horse and says we will accept the mere civilextra-judicial notice to appear as though a complaint to which aplea of guilty or nolo contendere may be entered s40513 (a) VC][However, if the person making the appearance decides he does notwant to permit the notice to be used as though a complaint andenters a plea of not guilty, to the court still without completejurisdiction, the court suddenly puts the horse before the cart,and decides it must await the filing of a verified complaintbefore it can permit the prosecutor to take you to anarraignment/trial] [Even a plea of guilty to a court withoutjurisdiction does not give a court jurisdiction]

[The court must have jurisdiction, without the jurisdiction itcannot issue any lawful order, such as appear for a trial, issue abench warrant if you do not appear, etc]

s978.5 (a) PC. A bench warrant of arrest may be issued whenever thedefendant fails to appear in court as required by law. (Read firstthe jurisdiction command)

[There are two types of custody. Actual physical custody in the

cell and constructive custody. Neither custody exists by the mereissue of a notice, a complaint must be filed and a warrant issuefor true custody of the defendant]

VOL 1 CHAPTER 18 - 5PAGE 409

s978 PC. If in custody, to be brought before the court. When hispersonal appearance is necessary, if he is in custody, the Courtmay direct and the officer in whose custody he is in must bring himbefore it to be arraigned.

[Understand, that the author considers law to be a chess game.There are rules of procedure which must be obeyed by the players.Before each player may make a move, it must be his turn(jurisdiction) and his play/move must be according to the rules ofthe game, and must be made at a certain time and completedwithin a time frame limit. So, when one of the players does nothave jurisdiction he cannot play, make moves/make points and thealleged player/opponent cannot be penalized by the player who doesnot play by the rules]

[Rule One. The player making the aggressive move must havejurisdiction] [So, the arresting officer must produce the body forthe arraignment. But, before he can do that he must have truecustody of the body because he filed a verified complaint and awarrant of arrest, both served upon the body]

[Recall, at the time of the stop and civil arrest the quasi-copasked you to identify yourself, and you did even though the SupremeCourt says that is a no no, you cannot be compelled to do so unlesstrafficking]

[So, on your appearance at the arraignment court, you can not berequired/compelled to ID yourself.. The arresting cop should bepresent, see you in the courtroom and identify you to the court. Ifhe cannot, the court must await the (cont)

VOL 1 CHAPTER 18 - 6PAGE 410

(cont) producing of your body before it may proceed with anarraignment, assuming jurisdiction of the body and subject matter]

[If you watch television court trials, always the witness, (in this

case the arresting officer)is asked to ID the defendant.

So, when you are in the arraignment court and clerk or magistrate calls your name, do not respond, await the identification of your person by the arresting officer who is the only witness for theprosecutor, who has never seen you.

At arraignments on vehicle code civil notices to appear, he will not be present. 4th amend, "not shall be compelled to be a witness against himself" Accuser to ID the accused, "without due process of law" Criminal process]

[If the accuser does not identify you to the court, be mute, as onejudge told an accused, "If you had kept your mouth shut, youwouldn't be in this mess"]

[Now, no one having knowingly produced the body of the accused,leave/exit the courtroom. Again, assuming jurisdiction by theprosecutor and thereby the court magistrate, they cannot prosecutean unknown accused defendant]

[When you decide you have the balls to do the above, take a friendwith you to the court. Then have him execute a declaration oraffidavit that he bears witness that he and you were present on thedate noticed on the Notice to Appear in the court named on thenotice and the exact time there, that you were not identified asthe accused and the exact time you departed/exited the courtroomtogether]

VOL 1 CHAPTER 18 - 7PAGE 411

[Thereafter, if the court issues a warrant for failure to appear,proof exists by the affidavit that you were present at the timerequested by the notice and that no accuser identified you as theaccused and it is not required that the accused identify himself atlaw]

[Appear on the bench warrant, demand the void warrant be withdrawnon the grounds that you were timely present and the matter shouldbe sua sponde dismissed for lack of prosecution by the accusers bytheir failure to produce the body and their failure to file a verified complaint. It is not the responsibility of the accused to demand that a complaint be filed not to ID himself]

[The author used these tactics on a personal case and made threeappearances on bench warrants, each time the bench warrant waswithdrawn and a new appearance time set by the court. Each time theauthor failed to appear and did appear on the subsequent benchwarrant and each time argued that the court was withoutjurisdiction and the arresting officer did not appear to ID me asthe accused]

[This must be done by filing a notice with the court that you willbe appearing on a specific date at which time you will demand thewithdrawal of the void bench warrant and the grounds, by points andauthorities for the withdrawal] [In that case the court finallydismissed 'in the interest of justice'] TRY IT, YOU'LL LIKE IT.

VOL 1 CHAPTER 19 - 1PAGE 412

AN OBJECTION TO JURISDICTION MAY BE A MOTION TO QUASH AND IS ASPECIAL APPEARANCE WHICH DOES NOT GIVE MAGISTRATE SUBJECT MATTERORPERSONAM JURISDICTION

[This is done on the premise that as magistrates assert that CivilNotices to Appear constitute lawful need to appear and that if theindividual named on the Notice does not appear a Bench Warrant forFailure to Appear will be issued by the Magistrate]

[Author claims that if the above is true, and because all mattersof State Statute Vehicle Code is civil in nature, see Hawaii vsBrown etc, it may reasonably be assumed that intent of Notice isthat of Summons as the officer will be filing the Notice (summons?)and a complaint with his law enforcement agency askingthe issue of an arrest warrant]

SUMMONS: To notify the defendant that an action has been institutedagainst him, and that he is required to answer to it at a time andplace named. Black's 4th p 1604

[Of course above assumes that a complaint will be filed with a copyof the Notice to Appear and a warrant of arrest issued on showingprobable cause but, there being no service of a complaint and itswarrant prior to your appearance before the court for aquasi-criminal arraignment appearance then such an appearanceshould be made to challenge for want of competent jurisdiction bythe special appearance by a Motion to Quash and Dismiss for want of

prosecution]

"Where proceedings are irregular, 'void', or 'defective', thecourts will quash them both civil and criminal cases. (cont)

VOL 1 CHAPTER 19 - 2PAGE 413

An indictment/complaint/accusation which is so defective that nojudgment can be given on it, or where there is no jurisdiction ofthe offense, 'will be quashed'. The remedy is applicable only toirregular, defective, or improper proceedings"Crawford vs Stewart 38 Penn (2 Wright) 34, 36

[If no complaint with warrant has been served before the date ofappearance on the notice/summons and you do not want to face theissue that a Warrant for Failure to Appear may be issued by amagistrate, even though the magistrate is without juris to so do,then any appearance should be special, and ideally with a Law &Motion Request part of the Motion to Quash]

[If a bench warrant has been issued and you have been informed bymail or service of the warrant, then on your appearance to withdrawthe void warrant this Quash should accompany the motion to withdrawat a Law & Motion hearing]

Motion to Quash is Civil Code of Procedure s418.10, OBJECTION TOJURISDICTION or to Stay or Dismiss Action

(a) Defendant (most likely a quasi-defendant in all cases ofvehicle code) on or before the last day of his time to plead (thinkalleged arraignment date appearance on the notice or summons) orwithin such further time as the court may for good cause allow(here we are discussing, quasi-defendant has appeared and asks forcontinuance) may serve and file a notice of motion either or both: (1) To quash service of summons on the ground of lack of (cont)

VOL 1 CHAPTER 19 - 3PAGE 414

(cont) jurisdiction of the court over him (no arrest warrantissued)] [Until juris of the man/person is clearly settled by thechallenge that the cop on the beat did not have juris, that theprosecuting attorney did not have juris because no verified

complaint had been filed with him by the dumb cop, and had notfiled a complaint with the magistrate, not the magistrate who willpreside at a quasi-judicial/quasi-criminal proceeding, theprosecuting attorney had no juris to appear at a quasi arraignment,and with none of the above the man sitting on the bench had neithersubject matter nor personam juris]

[So, the challenge is not, first instance, to the court's want ofjuris but, to the cop's want of juris and the prosecutingattorney's want of juris. Once they prove their juris only thendoes the court have subject matter and personam juris][Immediately after receiving a copy of the notice/summons file aDemand for Formal Administrative Hearing & Declaratory Judgment(See document 119A and 109, chap 14) Giving the department 15 daysto reply.

Then you may argue that no one had juris because of the'exoneration' by the agency's failure to grant the hearing andbecause prosecuting attorney failed to move, first, with thedepartment, thus depriving it of its party, first instance, onmatters which are regulated and enforced by administrative agency]

VOL 1 CHAPTER 19 - 4PAGE 415

[Incorporate your Motion to Quash as part of the Application for Law& Motion Hearing in the Caption}

Application for law & Motion Hearing Notice of Motion to Quash Summons and/or Dismiss Action See Form in Chapt 15, Application etc

THIS COMBINATION IS PROBABLY THE CLOSEST PROCEDURE TO BE ASILVER BULLET

[Having gone to the Prosecuting Attorney to file and serve a copyof the Motions, rule of thumb is, he will not accept service, ifyou ask him if he is the prosecuting party]

[The primary argument to be presented to the Hearing Officer, is,no one has proceeded according to law and you are unable to findthe proper prosecuting plaintiff and obviously it is not thequasi-cop as he is merely a witness for whomever is going toproperly and timely prosecute by due process of the law and itsprocedure under that timely appropriate law. Being unable to

determine or find a prosecuting plaintiff, the court should,sua sponde, vacate the matter in its entirety for want ofprosecution or some prosecutor, unknown, has established provenjuris]

PAGE 416 THRU 428 BEING RESEARCHED WILL INSERT AT A LATER TIME

PAGE 429

ARTHUR FRANK SANFORDc/o 5894 Villa DriveRancho Cucamonga, CA

Demandant, Sui Juri

MUNICIPAL COURT, WEST VALLEY DIVISION,COUNTY OF SAN BERNARDINO (center these)

PEOPLE OF THE STATE NO. 556888

OF CALIFORNIA, NOTICE OF DEMAND TO WITHDRAWPlaintiffs, in error, UNLAWFUL WARRANT ISSUED 2/8/91vs DEMAND TO EXONERATE BAIL TAKEN 3/2/90ARTHUR FRANK SANFORD POINTS AND AUTHORITIESDemandant, Sui Juris IN SUPPORT OF DEMAND.........................................................................................................................TO THE PRESIDING JUDGE OF THE ABOVE ENTITLED COURT:

Demandant will appear special on (date) at which time he willdemand the court to withdraw an unlawful bench warrant issued on2/8/91, and further that the court exonerate bail taken on 3/2/91in the amount of $207.50. This demand is based upon the grounds that the court istoothless as demandant was deprived of due process of law, bothstatutory and constitutional.

HISTORY OF THE CASE (center this)

On June 22, 1989, demandant was stopped by John Tomassi, whowrote and gave to the demandant a civil notice to appear, acitation under the Vehicle Code.

PAGE 430

Section 16028 (a) was cited within the notice. At that time demandant signed a statement "Without admittingguilt, I promise to appear".

On October 26, 1989, demandant appeared for a hearing beforethe above entitled court which was sitting and hearing a specialprocedure under a civil code.

On that date a plea of 'not guilty' was entered into therecord of the case by the hearing officer, he must then await thefiling of a verified complaint, pursuant to s40513 (a) VC before itcould obtain judicial subject matter jurisdiction for aquasi-criminal procedure.

As the people have not filed a verified complaint with thiscourt, at this time the court is without subject matterjurisdiction to issue bench warrants. Sufficient grounds exist forthis court to withdraw the invalid bench warrant and exonerate thebail on a bench warrant issued December 5, 1989.

Extra-judicial notice to appear was not verified, the court'srecord of the case show a plea of 'not guilty', at this time,demandant requests that a verified complaint be filed and thatcomplaint and arrest warrant are served upon the demandant, onlythen can this matter be moved forward to trial.

Arthur Frank SanfordDemandant

PAGE 431

1. Matter was collaterally estopped when Department of MotorVehicles 'exonerated' demandant pursuant to a Demand for FormalAdministrative Hearing and Declaratory Judgment filed with thatagency forum.

2. Since the date of exoneration district attorney has notfiled a criminal complaint with this court. This matter if pursuedis special procedure and civil in nature as the matter is civilstatute.

3. The plea of 'not guilty' entered by this court on October26, 1989, was by this court without jurisdiction as no formalcomplaint had been filed with the court or with the demandant.

4. Court could not enter that plea when court failed to readdemandant his legal rights and grant a continuance when demandantwas without counsel.

5. As of the date of demandant receiving a notice of issue ofinvalid bench warrant, demandant has not been served a copy of aformal complaint or a notice from any prosecutor asking for acontinuance for time to file a formal complaint, so court issued aninvalid warrant.

6. This inferior court is functioning without jurisdictionand must await action by district attorney to prosecute before itmay hear the matter.

Submitted;

Arthur Frank SanfordDemandant, Sui Juris