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First Draft ( 8 June 2023 )
Sovereignty : Issues, Laws, & Rulings
Supremacy Clause US Constitution : "This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
Jurisdiction
McNutt v General Motors Acceptance Corp. 56 S.Ct. 502.
“Jurisdiction may never be assumed but must be sustainably proven by the plaintiff claimant.”
Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)
"Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction."
Rodriguez v Ray Donavan (US Dept of Labor) 769 F 2d 1344, 1348 (1985)
"All codes, rules, and regulations are for government authorities only, not human/creators in accordance with God's laws. All codes, rules, and regulations are unconstitutional and lacking due process..."
"...lacking due process of law, in that they are 'void for ambiguity' in their failure to specify the statutes applicability to 'natural persons', otherwise depriving the same of fair notice, as their constitution by definition of terms aptly identifies the applicability of such statutes to 'artificial or fictional corporate entities or persons', creatures of statute, or those by contract employed as agents or representatives, departmental subdivisions, offices, and property of the government, but not the 'Natural Person' or American citizen immune from such jurisdiction of legalism."
Self v Rhay, 61 Wn (2d) 261
"The common law is the real law, the Supreme Law of the land; the code, rules, regulations, policy and statutes are not the law."
Marbury v Madison, 5th US (2 Cranch) 137, 174, 176 (1803)
"All laws rules and practices which are repugnant to the Constitution are null void."
"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument."
"If any statement, within any law which is passed, is unconstitutional the whole law is unconstitutional."
“Anything that is in conflict is null and void of law; Clearly for a secondary law to come in conflict with the supreme was illogical; for certainly the supreme law would prevail over any other law, and certainly our forefathers had intended that the supreme law would be the basis for all laws, and for any law to come in conflict would be null and void of law. It would bear no power to enforce, it would bear no obligation to obey, it would purport to settle as though it had never existed, for unconstitutionality would date from the enactment of such a law, not from the date so branded by a court of law. No courts are bound to uphold it, and no citizens are bound to obey it. It operates as a mere nullity or a fiction of law, which means it doesn't exist in law.”
United States v. Minker, 350 US 179, 178; 76 S.Ct. 281, L.Ed. 185 (1956)
"The Supreme Court has warned, 'Because of what appears to be Lawful commands {Statutory Rules, Regulations and Codes, Ordinances and Restrictions} on the surface, many citizens, because of their respect for what appears to be law, are cunningly coerced into waiving their rights, due to ignorance...[{deceptive practices, constructive fraud, barratry, legal plunder, conversion, and malicious prosecution in inferior administrative State courts]"
Downs v Bidwell, 182 US 244 (1901)
"The government of the United States was born of the Constitution, and all powers which it enjoys or may exercise must be either derived expressly or by implication from that instrument. Even then, when an act of any department is challenged, because not warranted by the Constitution, the existence of the authority is to be ascertained by determining whether the power has been conferred by the Constitution, either in express terms or by lawful implication, to be drawn from the express authority conferred or deduced as an attribute which legitimately inheres in the nature of the powers given, and which flows from the character of the government established by the Constitution. In other words, whilst confined to its constitutional orbit, the government of the United States is supreme within its lawful sphere. Every function of the government being thus derived from the Constitution, it follows that that instrument is everywhere and at all times potential in so far as its provisions are applicable. Hence it is that wherever a power is given by the Constitution and there is a limitation imposed on the authority, such restriction operates upon and confines every action on the subject within its constitutional limits. Consequently it is impossible to conceive that where conditions are brought about to which any particular provision of the Constitution applies its controlling influence may be frustrated by the action of any or all of the departments of the government...
Sovereignty
Lansing v. Smith, 4 Wend. 9 (N.Y.) (1829), 21 Am. Dec. 89 10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 167; 48 C Wharves Sec. 3, 7.
“The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative”
Davis v Wechsler, 263 US 22, 24
"The assertion of federal rights when plainly and reasonably made, is not to be defeated under the name of local practice."
"Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice... [I]t is necessary to see that local practice shall not be allowed to put unreasonable obstacles in the way."
Sherer v Cullen, 481 F 946
"There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights."
Miranda v Arizona, 384 U.S. 436, 491
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."
Hurtado v People of the State of California, 110 U.S. 516
"The state cannot diminish rights of the people."
Murdock v Pennsylvania, 319 US 105 (1943)
"A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution and that a flat license tax here involves restraints in advance of the constitutional liberties of Press and Religion and inevitably tends to suppress their existence. That the ordinance is non-discriminatory and that it applies also to peddlers of wares and merchandise is immaterial. The liberties granted by the first amendment are in a preferred position. Since the privilege in question is guaranteed by the Federal Constitution and exists independently of the states authority, the inquiry as to whether the state has given something for which it cannot ask a return, is irrelevant. No state may convert any secured liberty into a privilege and issue a license and a fee for it."
Shuttlesworth v City of Birmingham, Alabama, 373 US 262
"If the State converts a right into a privilege, the citizen can ignore the license and fee, and engage in the right with impunity."
Norton v. Shelby County, 118 U.S. 425 p. 442
"An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed."
Hoke v Henderson, 15 NC 15, 25, AM Dec 677
"Statutes which would deprive a citizen of the rights of person or property without a regular trial, according to the course and usage of common law, would not be the law of the land."
Bryars v United States, 273 U. S. 28
"Constitutional rights must be interpreted in favor of the citizen."
16 Am Jur 2d., Sec. 177, 256
"The general rule is that an unconstitutional statute, whether Federal or State, though having the form and name of the law is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the enactment and not merrily from the date of inception so braining it....
16 Am Jur 2d., Sec. 155
"If the Constitution prescribes one rule and the statute another in a different rule, it is the duty of the courts to declare that the Constitution and not the statute governs in cases before them for judgment."
16 Am Jur 2d. Sec. 97
"That a constitution should receive a federal interpretation in favor of the Citizen, is especially true with respect to those provisions which were designed to safeguard the liberty and security of the Citizen in regard to person and property."
16 Am Jur 2d., Sec. 114
"As to the construction, with reference to Common Law, an important canon of construction is that constitutions must be construed to reference the Common Law...
"The Common Law, so permitted destruction of the abatement of nuisances by summary proceedings and it was never supposed to interfere with this established principle and although there is no common law of the United States in a sense of a national customary law as distinguished from the common law of England, adopted in the several states. In interpreting the Federal Constitution, recourse may still be had to the aid of the Common law of England. It has been said that without reference to the common law, the language of the Federal Constitution could not be understood.
16 Am Jur 2d., Sec. 117
"Various facts of circumstances extrinsic to the Constitution are often resorted to, by the courts, to aid them in determining its meaning; as previously noted, however such extrinsic aids may not be resorted to where the provision in question is clear and unambiguous; in such a case the courts must apply the terms of the Constitution as written and they are not at liberty to search for meanings beyond the instrument."
16 Am Jur 2d., Sec. 256
"The general rule is that an unconstitutional statute, whether Federal or State, though having the form and name of the law is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the enactment and not merrily from the date of inception so braining it. An unconstitutional law in legal contemplation is as inoperative as if it had never been passed. Such a statute leaves a question that it purports to settle just as it would had the statute not ever been enacted. No repeal of an enactment is necessary, since an unconstitutional law is void. The general principle follows that it imposes no duty, conveys no rights, creates no office, bestows no power of authority on anyone, affords no protection and justifies no acts performed under it. A contract which rests on an unconstitutional statute creates no obligation to be impaired by subsequent legislation. No one is bound to obey an unconstitutional law. No courts are bound to enforce it. Persons convicted and fined under a statute subsequently held unconstitutional may recover the fines paid. A void act cannot be legally inconsistent with a valid one and an unconstitutional law cannot operate to supersede an existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby. Since an unconstitutional statute cannot repeal or in any way affect an existing one, if a repealing statute is unconstitutional, the statute which it attempts to repeal, remains in full force and effect and where a statute in which it attempts to repeal remains in full force and effect and where a clause repealing a prior law is inserted in the act, which act is unconstitutional and void, the provision of the repeal of the prior law will usually fall with it and will not be permitted to operate as repealing such prior law. The general priciple stated above applied to the constitution as well as the laws of the several states insofar as they are repugnant to the constitution and laws of the United States."
16 Am Jr 2d, Sec. 258
"On the other hand it is clear that Congress cannot by authorization or ratification give the slightest effect to a state law or constitution which is in conflict with the Constitution of the United States."
16 Am Jur 2S., Sec. 255
"In all instances, where the court exercises its power to invalidate legislation on constitutional grounds, the conflict of the statute, with the constitution must be irreconcilable. Thus a statute is not to be declared unconstitutional unless so inconsistent with the constitution that it cannot be enforced without a violation thereof. A clear incompatibility between law and the Constitution must exist before the judiciary is justified holding the law unconstitutional. This principle is in line with the rule that doubts that the constitutionality should be resolved in favor of the constitutionality and the beneficiary."
Judges, Courts & Officers
[ Court -- The court belongs to the sovereign plaintiff ]
Black's Dictionary:
"Court: The person and suit of the sovereign; the place where the sovereign sojourns..."
3 Black's Commentary 41
"BEFORE THE KING HIMSELF: the old name of the court of king's bench, which was originally held before the king in person."
Isbill vs Stovall, 92 S.W.2d 1067 (Tex. Civ. App. 1936)
An approved' definition of a "court" includes as an element thereof the place or places of its functioning. "A court is an agency of the sovereign created by it directly or indirectly under its authority, consisting of one or more officers, established and maintained for the purpose of hearing and determining issues of law and fact regarding legal rights and alleged violations thereof, and of applying the sanctions of the law, authorized to exercise its powers in due course of law at times and places previously determined by lawful authority."
"...an agency of the sovereign created by him directly or indirectly under his authority, consisting of one or more officers, established and maintained for the purpose of hearing and determining issues of law and fact regarding legal rights and alleged violations thereof, and of applying the sanctions of the law, authorized to exercise its powers in the course of law at times and places previously determined by lawful authority."
"In [BvUS], a court order to produce an invoice, claimed to be privileged under the Fifth Amendment, was held to be unconstitutional and void."
Boyd v United States, 116 US 616 635
"It is the duty of the courts to be watchful for the Constitutional rights of the citizen and against any stealthy encroachment thereon."
FRC v. GE, 281 US 464; Keller v. Potomac Elec. Co., 261 US 428, 1 Stat. 138-178
"There have NOT been any 'Judges' in America since 1789. There have only been 'Administrators'."
US v Will, 449 US 200
"We [judges] have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution."
US v Lee, 106 US 196, 220; 1 S. Ct. 240, 261; 27 L.Ed. 171 (1882)
"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government from the highest to the lowest, are creatures of the law and are bound to obey it...
"It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes on the exercise of the authority which it gives."
Cooper v. O'Conner, 99 F. 2d. 133
"There is a general rule that a ministerial officer who acts wrongfully, although in good faith, is nevertheless liable in a civil action and cannot claim the immunity of the sovereign."
Cooper v. Aaron, 358 US 1; 78 S. Ct. 1401 (1958)
"Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the supreme law of the land. The judge is engaged in acts of treason."
Davis v. Burris, 51 Ariz 220; 75 P. 2d. 689 (1938)
"A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts.
Hoffsomer v. Hayes, 92 Okla 32, 227 F. 417
"The courts are not bound by an officer's interpretation of the law under which he presumes to act."
"Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction."
Downs v Bidwell, 182 US 244 (1901)
"It will be an evil day for American Liberty if the theory of a government outside supreme law finds lodgment in our constitutional jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violations of the principles of the Constitution."
Greenwood v. Peacock, 384 U.S. 808, 829-830 (1966)
[Under42 USC § 1983,] "officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well."
Main v Thiboutot, 448 U.S. 1 (1980); 100 S. Ct. 2502 (1982)
"Given that Congress attached no modifiers to the phrase "and laws," the plain language of the statute embraces respondents' claim..."
42 USC § 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Color of Law
Atkins v. Lanning, 415 F. Supp. 186 188.
"Misuse of power, possessed by virtue of state law and made possible only because wrongdoer is clothed with authority of state law, is action taken under 'color of state law'."
18 USC 241 -- If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, territory, Commonwealth, Possession...
18 USC 242 -- "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the united States, or to different punishments, pains, or penalties..."
42 USC 1983 -- "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any .."
Right to Practice Law / Right to Assist :
Schware v. Board of Bar Examiners 353 US 232, 238, 239 (1975)
"A State cannot exclude a person from the practice of law or from any other occupation in a manner for reasons that contravene the Due Process Clause of the 14th Amendment...
"The practice of law cannot be licensed by any State."
Sims v. Aherns, 271 SW 720 (1925)
"The practice of law is an occupation of common right."
Meyer v. Nebraska, 262 US 390, 399, 400
"The term [liberty]... denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience... The established doctrine is that this liberty may not be interfered with, under the guise of protecting public interest."
Elmore v. McAmmon, 640 F.Suppl. 905 (1986)
"The right to file a lawsuit pro se is one of the most important rights under the constitution and laws."
Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 US 1; Argersinger v. Hamlin, Sheriff 407 US 425
"Litigants can be assisted by unlicensed laymen during judicial proceedings."
Federal Rules of Civil Procedures, Rule 17, 28 USCA "Next Friend"
"A next friend is a person who represents someone who is unable to tend to his or her own interest."
NAACP v. Button, 371 US 415; United Mineworkers of America v. Gibbs, 383 US 715; Johnson v. Avery, 89 S.Ct. 747 (1969)
"Members of groups who are competent non-lawyers can assist other members of the group achieve the goals of the group in court without being charged with 'unauthorized practice of law'."
Mugler v. Kansas, 123 US 623, 659, 660.
"Under our system of government upon the individuality and intelligence of the citizen, the state does not claim to control him/her, except as his/her conduct to others, leaving him/her the sole judge as to all that affects himself/herself....
"Every man is independent of all laws, except those prescribed by nature. He is not bound by any institutions formed by his fellow man without his consent."
"The constitutional grant of life, liberty, and pursuit of happiness is not limited by the temporary cáprice of a present majority, and can be limited only by the absolute necessities of the public."
Hertado v. California, 110 US 516.
"The State cannot diminish rights of the people."
Miller v. US 230 F.2d. 486, 489
"The claim and exercise of a Constitutional Right cannot be converted into a crime."
Shuttlesworth v. Birmingham, 373 US 262
"If the state converts a liberty into a privilege the citizen can engage in the right with impunity."
McCullough v Maryland, 17 US 316 (1819)
"The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by congress to carry into effect the powers vested in the national government...
“The power of establishing corporations is not a distinct sovereign power or end of government but only the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate means of exercising any of the powers given by the constitution to the government of the union it may be exercised by that government..."
Right to Travel** US Const. Amend 5
Kent v Dulles, 357 US 116 (1958); 78 SCt 1113; 2 L.Ed. 2d 1204 (1958)
"Held:... (a) The right to travel is a part of the 'liberty' of which a citizen cannot be deprived without due process of law under the Fifth Amendment."
Boyd v US, 116 US 616, 635 (1886)
"Summary -- Holding that a notice to produce personal papers was "unconstitutional and void, and that the inspection by the district attorney of said invoice, when produced in obedience to said notice, and its admission in evidence by the court, were erroneous and unconstitutional proceedings."
"Held, To be unconstitutional and void as applied to suits for penalties, or to establish a forfeiture of the party's goods, as being repugnant to the Fourth and Fifth Amendments of the Constitution.
"It does not require actual entry upon premises and search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the Fourth Amendment; a compulsory production of a party's private books and papers to be used against himself or his property in a criminal or penal proceeding, or for a forfeiture, is within the spirit and meaning of the Amendment [ Italics added ]. It is equivalent to a compulsory production of papers, to make the non-production of them a confession of the allegations which it is pretended they will prove. A proceeding to forfeit a person's goods for an offense against the laws, though civil in form, and whether in rem or in personam, is a "criminal case" within the meaning of that part of the Fifth Amendment which declares that no person "shall be compelled, in any criminal case, to be a witness against himself." The seizure or compulsory production of a man's private papers to be used in evidence against him is equivalent to compelling him to be a witness against himself, and, in a prosecution for a crime, penalty or forfeiture, is equally within the prohibition of the Fifth Amendment. Both amendments relate to the personal security of the citizen. They nearly run into and mutually throw light upon each other. When the thing forbidden in the Fifth Amendment, namely, compelling a man to be a witness against himself, is the object of a search and seizure of his private papers, it is an "unreasonable search and seizure" within the Fourth Amendment. Search and seizure of a man's private papers to be used in evidence for the purpose of convicting him of a crime, recovering a penalty, or of forfeiting his property, is totally different from the search and seizure of stolen goods, dutiable articles on which the duties have not been paid, and the like, which rightfully belong to the custody of the law. Constitutional provisions for the security of person and property should be liberally construed."
"If a citizen's liberty to travel is to be regulated, it must be pursuant to the law-making functions of Congress, any delegation of the power must be subject to adequate standards, and such delegated authority will be narrowly construed." P. 129.
Shapiro v Thompson 394 U.S. P 618
“All citizens must be free to travel throughout the United States uninhibited by statues, rules, or regulations which unreasonably burden or restrict this movement. If a law has no other purpose than to chill assertions of constitutional rights by penalizing those who choose to exercise them, it is patently unconstitutional.
“The equal protection clause prohibits apportionment of state services according to par tax contributions of its citizens. Any classification which serves to penalize the exercise of the right of interstate travel, unless shown to be necessary to promote a compelling government interest, is unconstitutional...
“The right finds no explicit mention in the constitution. That a right so elementary was conceived from the beginning to be necessary
concomitant to the stronger union the constitution created. In any event freedom to travel throughout the Unites States has long been recognized as a basic right under the constitution.”
Eggert v. Seattle, 81 Wn. 2d. 840 (1973); 505 P.2d. 801 (1973)
"Constitutional law -- Equal Protection -- Impairment -- Considerations -- "In determining whether a statutory classification violates constitutional equal protection rights, the courts must examine the governmental interests asserted in support of the classification, its character, and the individual interests affected by it."
"Equal Protection -- Impairment -- Fundamental Right -- Burden of Proof -- " A showing of compelling state interest must be made to justify a classification affecting a fundamental right involving a protected individual interest."
"Constitutional Law -- Right to Travel -- Nature -- Scope -- The federal constitution guarantees an unconditional, personal 'right to travel' which protects both interstate and intrastate migration or movement with the intent to settle and abide. A compelling state interest must be shown to justify any burden placed upon the right or penalty imposed on the exercise." [ See 16 Am.Jur.2d., Constitutional Law, Sect. 359 ]
Thompson v Smith, 154 SE 579
Summary : "In Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 581, 584, 71 A.L.R. 604, the court discussed the rights of a police chief to revoke drivers' licenses under a provision of the city ordinances which stated: "The Chief of Police is authorized and directed to revoke [subject to right of appeal] the permit of any driver who, in his opinion, becomes unfit to drive an automobile on the streets of the city.
"If the provision of an ordinance authorizing the chief of police to revoke a driver's permit, when he deems the driver unfit to drive, is void, because it is a delegation of legislative power to an administrative office and vests the chief of police with an arbitrary discretion, the provision of the same ordinance authorizing the exercise of the same discretion by the judge of the municipal court upon an application for reinstatement of the permit is also void; and the provision of the ordinance that the person whose permit has been revoked by the chief of police may apply to the judge of the municipal court for reinstatement cannot constitute an adequate remedy at law...
"5. STREETS AND HIGHWAYS — Right of Citizen to Travel and Transport Property — Use of Ordinary Vehicles. — The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day. This right is not a mere privilege which a city may permit or prohibit at will.
"6. STREETS AND HIGHWAYS — Right of Citizen to Travel and Transport Property — Use of Ordinary Vehicles — Police Power. — The right of a citizen to travel and transport property and to use the ordinary and usual conveyances of the day may, under the police power, be regulated by the city in the interest of public safety and welfare; but the city may not arbitrarily or unreasonably prohibit or restrict it, nor may it permit one to exercise it and refuse to permit another of like qualifications, under like conditions and circumstances, to exercise it..
"7. AUTOMOBILES — Drivers' Permits — Arbitrary Revocation. — The regulation of the exercise of the right to drive a private automobile on the streets of the city may be accomplished in part by the city by granting, refusing, and revoking under rules of general application permits to drive an automobile on its streets; but such permits may not be arbitrarily refused or revoked, or permitted to be held by some and refused to others of like qualifications, under like circumstances and conditions.
"8. AUTOMOBILES — Exercise of Right to Drive — Granting and Revoking Permits — Arbitrary Discretion. — The doctrine that when the State or city has the power to prohibit the doing of an act altogether, it has the power to permit the doing of the act under any condition, or subject to any regulation, however arbitrary, has no application to a permit issued for the purpose of regulating the exercise of the common right to operate a private automobile on the streets of a city.
"9. PUBLIC OFFICERS — Powers of Administrative Officers — Legislation by Administrative Officers. — It is a fundamental principle of our system of government that the rights of men are to be determined by the law itself, and not by the let or leave of administrative officers or bureaus. It is the prerogative of the legislative branch of the government to determine and declare what the law shall be, and the legislative branch may not delegate this function to executive or administrative officers.
"This does not mean, however, that no discretion can be left to administrative officers in administering the law. Government could not be efficiently carried on if something could not be left to the judgment and discretion of administrative officers to accomplish in detail what is authorized or required by law in general terms. Without this power legislation would become either oppressive or inefficient. There would be confusion in the laws, and in an effort to detail and particularize, the law would miss sufficiency both in provision and detail. Block v. Chicago, 239 Ill. 251, 87 N. E. 1011, 130 Am. St. R. 219; Mutual Film Corp. v. Ohio Indus. Comm., 236 U. S. 239, 35 Sup. Ct. 387, 59 L. Ed. 552, Ann. Cas. 1916-C, 296. This is particularly true where the discretion to be exercised by administrative officers relates to police regulations designed to protect the public morals, health, safety and general welfare. As said by Burks, J., in Taylor v. Smith, supra: "A city may, in the exercise of its police power, invest its administrative and executive officers with a reasonable discretion in the performance of duties devolved upon them to that end, whenever it is necessary for the safety and welfare of the public." But, it should be added, the reasonable discretion which may be vested in its administrative officers is limited to a discretion in its essence ministerial and not legislative, though it may be such as may be exercised by the legislature.
"Where a statute or ordinance assumes to regulate the exercise of a common right, such as that here involved, by requiring a permit for the exercise thereof, which is to be granted or refused and may be revoked by an administrative officer in his discretion, the correct principles for determining whether it is void because it delegates legislative power to the administrative officer are stated by the court in Mutual Film Corp. v. Ohio Industrial Commission, 236 U. S. 239, 35 Sup. Ct. 387, 392, 59 L. Ed. 552, Ann. Cas. 1916-C, 296, in the following language: "The legislature must declare the policy of the law and fix the legal principles which are to control in given cases; but an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply."
"Mere matters of detail within the policy, and the legal principles and standards established by the statute or ordinance, may properly be left to administrative discretion, for the determination of such matters of detail is more essentially ministerial than legislative. In declaring the policy of the law and fixing the legal principles and standards which are to control in the administration of the law, general terms, which get precision from the technical knowledge or sense and experience of men and thereby become reasonably certain, may be used; and an administrative officer or bureau may be invested with the power to ascertain and determine whether the qualifications, facts or conditions comprehended in and required by such general terms exist, and whether the provisions of the law so fixed and declared have been complied with in accordance with the generally accepted meaning of the words. [ Mutual Film Corp. v. Ohio Industrial Commission, supra; Yee Bow v. Cleveland, 99 Ohio St. 269, 124 N. E. 132, 12 A. L. R. 1424; Block v. Chicago, 239 Ill. 251, 87 N. E. 1011, 130 Am. St. Rep. 219.]
"10. Public Officers — Powers of Administrative Officers — Discretion of Administrative Officers. — The principle that the rights of men are to be determined by the law itself and not by administrative officers does not mean, however, that no discretion can be left to administrative officers in administering the law. Government could not be efficiently carried on if something could not be left to the judgment and discretion of administrative officers to accomplish in detail what is authorized or required by law in general terms. This is particularly true where the discretion to be exercised relates to police regulations. But the reasonable discretion which may be vested in city administrative officers is limited to a discretion in its essence ministerial and not legislative, though it may be such as may be exercised by the legislature..". [ Italics added ]
"17. STREETS AND HIGHWAYS — Right to Use the Public Highways — Whether Property Right. — Whether a right to use the public highways for the ordinary and usual purposes of life be a property right or not, it is a very valuable right, not a mere privilege.
"18. Unconstitutionality of a Statute or Ordinance. — The invalidity or unconstitutionality of a statute or ordinance is not of itself a ground of equity jurisdiction. A court of equity has not jurisdiction to enjoin acts only because they are attempted or threatened under color of an unconstitutional or void statute or ordinance. Further circumstances must be shown which bring the case within some recognized ground of equity jurisdiction; but inadequacy of legal remedy or irreparable injury are well recognized grounds of equity jurisdiction.
"19. INJUNCTIONS — Jurisdiction — Invalid Statute or Ordinance — Property Rights Threatened — Adequate Remedy at Law. — It is recognized that an injunction will lie to enjoin the threatened enforcement of an invalid statute or ordinance where the lawful use and enjoyment of private property will be injuriously affected by its enforcement, or where the right of a person to conduct a lawful business will be injuriously affected thereby, unless the remedy at law be manifestly as complete and adequate as an injunction suit.
"20. INJUNCTIONS — Jurisdiction — Enforcement of Personal Rights — Right to Travel on Highway. — It has been said that it is beyond the scope of the powers of a court of equity to enforce personal rights as distinguished from property rights, but this distinction is not well made. Fundamental personal rights, such as the right of a person to travel the public highways of the State, are not less sacred and valuable rights, or less subject to the protection of a court of equity, in a proper case, than are property rights.
"21. INJUNCTIONS — Jurisdiction — Enforcement of Right to Travel on Highway — Irreparable Injury. — An injunction suit is often a more appropriate and effective method of resisting the invasion of or interference with a personal right, such as the right to travel on the public highways, under color of void statute or ordinance than any common law remedy; and where the remedy at law is not as complete and as fully adequate as an injunction suit, or where the threatened or attempted enforcement of a void statute or ordinance will do irreparable injury to a person in interfering with the exercise of such a common fundamental personal right, a suit for injunction will lie.
"22. INJUNCTIONS — Irreparable Injury — Definition. — By irreparable injury is meant an injury of such a nature that fair and reasonable redress may not be had in a court of law and to refuse the injunction would be a denial of justice.
"23. AUTOMOBILES — Revocation of Driver's Permit — Injunction — Case at Bar. — The real object of the instant suit was to obtain for the applicant freedom from the restraint imposed by a void ordinance upon his exercise of the common right to drive his automobile on the streets of a city. Complainant might have proceeded by petition for mandamus to compel the chief of police to restore his driving permit, or have waited until arrested upon the charge of driving without a permit and then interposed the defense that the provisions of the ordinance under which his permit had been taken from him were void. Neither of these remedies is as complete and adequate as a suit for injunction to protect complainant against wrongful interference, under color of a void ordinance, with his right to drive an automobile.
Taylor v. Smith, 140 Va. 217, 124 S. E. 259, 263; Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781, L. R. A. 1915-F, 840
"The exercise of such a common right the city may, under its police power, regulate in the interest of the public safety and welfare; but it may not arbitrarily or unreasonably prohibit or restrict it, nor may it permit one to exercise it and refuse to permit another of like qualifications, under like conditions and circumstances, to exercise it...
"It has been said that when the State or a city has the power to prohibit the doing of an act altogether, it has the power to permit the doing of the act upon any condition, or subject to any regulation, however arbitrary or capricious it may be; and may lawfully delegate to executive or administrative officers an uncontrolled and arbitrary discretion as to granting and revoking permits or licenses to do such act."
Owen v. City Of Independence , 445 U.S. 622, 635 (1980)
"Held: A municipality has no immunity from liability under 43 USC Section 1983 flowing from its constitutional violations and may not assert the good faith of its officers as a defense to such liability."