Elk v Wilkin nN Slaughter house case
Elk v. Wilkins is a 14th Amendment case, the concept is true concerning
all federal citizens. In other words, all federal citizens must be, by
their very definition, a person who is "completely subject" to the
jurisdiction of the federal government (such as a citizen of Washington
DC). Virtually any legal concept stated by the courts concerning a 14th
Amendment citizen is operative upon all federal citizens.
"The persons declared to be citizens are, "All persons born or
naturalized in the United States and subject to the jurisdiction
thereof." The evident meaning of these last words is not merely subject
in some respect or degree to the jurisdiction of the United States, but
completely subject..."
Elk v. Wilkins, 112 U.S. 94 (1884)
ELK V. WILKINS, 112 U. S. 94 (1884)
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U.S. Supreme Court
Elk v. Wilkins, 112 U.S. 94 (1884)
Elk v. Wilkins
Argued April 28, 1884
Decided November 3, 1884
112 U.S. 94
Syllabus
An Indian, born a member of one of the Indian tribes within the United
States, which still exists and is recognized as a tribe by the
government of the United States, who has voluntarily separated himself
from his tribe, and taken up his residence among the white citizens of a
state, but who has not been naturalized, or taxed, or recognized as a
citizen either by the United States or by the state, is not a citizen of
the United States within the meaning of the first section of the
Fourteenth Article of Amendment of the Constitution.
A petition alleging that the plaintiff is an Indian, and was born within
the United States, and has severed his tribal relation to the Indian
tribes, and fully and completely surrendered himself to the jurisdiction
of the United States, and still so continues subject to the jurisdiction
of the United States, and is a bona fide resident of the Nebraska and
City of Omaha, does not show that he is a citizen of the United States
under the Fourteenth Article of Amendment of the Constitution.
This is an action brought by an Indian in the Circuit Court of the
United States for the District of Nebraska against the registrar of one
of the wards of the City of Omaha for refusing to register him as a
qualified voter therein. The petition was as follows:
This is an action brought by an Indian, in the Circuit Court of the
United States for the District of Nebraska, against the registrar of one
of the wards of the City of Omaha, for refusing to register him as a
qualified voter therein. The petition was as follows:
Page 112 U. S. 95
"John Elk, plaintiff, complains of Charles Wilkins, defendant, and avers
that the matter in dispute herein exceeds the sum of five hundred
dollars, to-wit, the sum of six thousand dollars, and that the matter in
dispute herein arises under the Constitution and laws of the United
States, and, for cause of action against the defendant, avers that he,
the plaintiff, is an Indian, and was born within the United States; that
more than one year prior to the grievances hereinafter complained of he
had severed his tribal relation to the Indian tribes, and had fully and
completely surrendered himself to the jurisdiction of the United States,
and still so continues subject to the jurisdiction of the United States,
and avers that, under and by virtue of the Fourteenth Amendment to the
Constitution of the United States, he is a citizen of the United States,
and entitled to the right and privilege of citizens of the United States."
"That on the sixth day of April, 1880, there was held in the City of
Omaha (a City of the first class, incorporated under the general laws of
the State of Nebraska, providing for the incorporation of cities of the
first class) a general election for the election of members of the city
council and other officers for said city."
"That the defendant, Charles Wilkins, held the office of and acted as
registrar in the Fifth Ward of said city, and that as such registrar it
was the duty of such defendant to register the names of all persons
entitled to exercise the elective franchise in said ward of said city at
said general election."
"That this plaintiff was a citizen of and had been a bona fide resident
of the State of Nebraska for more than six months prior to said sixth
day of April, 1880, and had been a bona fide resident of Douglas County,
wherein the City of Omaha is situate, for more than forty days, and in
the Fifth Ward of said city more than ten days prior to the said sixth
day of April, and was such citizen and resident at the time of said
election, and at the time of his attempted registration, as hereinafter
set forth, and was in every way qualified, under the laws of the State
of Nebraska and of the City of Omaha, to be registered as a voter, and
to cast a vote at said election, and complied with the laws of the city
and state in that behalf. "
Page 112 U. S. 96
"That on or about the fifth day of April, 1880, and prior to said
election, this plaintiff presented himself to said Charles Wilkins, as
such registrar at his office, for the purpose of having his name
registered as a qualified voter, as provided by law, and complied with
all the provisions of the statutes in that regard, and claimed that,
under the Fourteenth and Fifteenth Amendments to the Constitution of the
United States, he was a citizen of the United States, and was entitled
to exercise the elective franchise, regardless of his race and color,
and that said Wilkins, designedly, corruptly, willfully, and
maliciously, did then and there refuse to register this plaintiff, for
the sole reason that the plaintiff was an Indian, and therefore not a
citizen of the United States, and not therefore entitled to vote, and on
account of his race and color, and with the willful, malicious, corrupt,
and unlawful design to deprive this plaintiff of his right to vote at
said election, and of his rights, and all other Indians of their rights,
under said Fourteenth and Fifteenth amendments to the Constitution of
the United States, on account of his and their race and color."
"That on the sixth day of April, this plaintiff presented himself at the
place of voting in said ward, and presented a ballot, and requested the
right to vote, where said Wilkins, who was then acting as one of the
judges of said election in said ward, in further carrying out his
willful and malicious designs as aforesaid, declared to the plaintiff
and to the other election officers that the plaintiff was an Indian, and
not a citizen, and not entitled to vote, and said judges and clerks of
election refused to receive the vote of the plaintiff, for that he was
not registered as required by law."
"Plaintiff avers the fact to be that by reason of said willful,
unlawful, corrupt, and malicious refusal of said defendant to register
this plaintiff, as provided by law, he was deprived of his right to vote
at said election, to his damage in the sum of $6,000."
"Wherefore, plaintiff prays judgment against defendant for $6,000, his
damages, with costs of suit."
The defendant filed a general demurrer for the following causes: 1st,
that the petition did not state facts sufficient to
Page 112 U. S. 97
constitute a cause of action; 2d, that the court had no jurisdiction of
the person of the defendant; 3d, that the court had no jurisdiction of
the subject of the action.
The demurrer was argued before Judge McCrary and Judge Dundy, and
sustained, and, the plaintiff electing to stand by his petition,
judgment was rendered for the defendant, dismissing the petition, with
costs. The plaintiff sued out this writ of error.
By the Constitution of the State of Nebraska, article 7 section 1,
"Every male person of the age of twenty-one years or upwards, belonging
to either of the following classes, who shall have resided in the state
six months, and in the county, precinct, or ward for the term provided
by law, shall be an elector. First, citizens of the United States.
Second, persons of foreign birth who shall have declared their intention
to become citizens, conformably to the laws of the United States on the
subject of naturalization at least thirty days prior to an election."
By the statutes of Nebraska, every male person of the age of twenty-one
years or upward, belonging to either of the two classes so defined in
the constitution of the state, who shall have resided in the state six
months, in the county forty days, and in the precinct, township, or ward
ten days, shall be an elector; the qualifications of electors in the
several wards of cities of the first class (of which Omaha is one) shall
be the same as in precincts; it is the duty of the registrar to enter in
the register of qualified voters the name of every person who applies to
him to be registered, and satisfies him that he is qualified to vote
under the provisions of the election laws of the state, and at all
municipal, as well as county or state elections, the judges of election
are required to check the name, and receive and deposit the ballot, of
any person whose name appears on the register. Compiled Statutes of
Nebraska of 1881, c. 26, § 3; c. 13, § 14; c. 76, §§ 6, 13, 19.
Page 112 U. S. 98
"It is quite clear, then, that there is a citizenship of the United
States, and a citizenship of a state, which are distinct from each other
and which depend upon different characteristics or circumstances in the
individual".
Slaughterhouse Cases, 83 U.S. (16 Wall.) 36; 21 L.Ed. 394 (1873)
MILLER, J., Opinion of the Court
SUPREME COURT OF THE UNITED STATES
83 U.S. 36
Slaughterhouse Cases [*]
ERROR TO THE SUPREME COURT OF LOUISIANA
Argued: --- Decided:
Mr. Justice MILLER, now, April 14th, 1873, delivered the opinion of the
court.
These cases are brought here by writs of error to the Supreme Court of
the State of Louisiana. They arise out of the efforts of the butchers of
New Orleans to resist the Crescent City Livestock Landing and
Slaughter-House Company in the exercise of certain powers conferred by
the charter which created it, and which was granted by the legislature
of that State.
The cases named on a preceding page, [*] with others which have been
brought here and dismissed by agreement, were all decided by the Supreme
Court of Louisiana in favor of the Slaughter-House Company, as we shall
hereafter call it for the sake of brevity, and these writs are brought
to reverse those decisions.
The records were filed in this court in 1870, and were argued before it
at length on a motion made by plaintiffs in error for an order in the
nature of an injunction or supersedeas, [p58] pending the action of the
court on the merits. The opinion on that motion is reported in 10
Wallace 273.
On account of the importance of the questions involved in these cases,
they were, by permission of the court, taken up out of their order on
the docket and argued in January, 1872. At that hearing, one of the
justices was absent, and it was found, on consultation, that there was a
diversity of views among those who were present. Impressed with the
gravity of the questions raised in the argument, the court, under these
circumstances, ordered that the cases be placed on the calendar and
reargued before a full bench. This argument was had early in February last.
Preliminary to the consideration of those questions is a motion by the
defendant to dismiss the cases on the ground that the contest between
the parties has been adjusted by an agreement made since the records
came into this court, and that part of that agreement is that these
writs should be dismissed. This motion was heard with the argument on
the merits, and was much pressed by counsel. It is supported by
affidavits and by copies of the written agreement relied on. It is
sufficient to say of these that we do not find in them satisfactory
evidence that the agreement is binding upon all the parties to the
record who are named as plaintiffs in the several writs of error, and
that there are parties now before the court, in each of the three cases,
the names of which appear on a preceding page, [*] who have not
consented to their dismissal, and who are not bound by the action of
those who have so consented. They have a right to be heard, and the
motion to dismiss cannot prevail.
The records show that the plaintiffs in error relied upon, and asserted
throughout the entire course of the litigation in the State courts, that
the grant of privileges in the charter of defendant, which they were
contesting, was a violation of the most important provisions of the
thirteenth and fourteenth articles of amendment of the Constitution of
the United States. The jurisdiction and the duty of this court [p59] to
review the judgment of the State court on those questions is clear, and
is imperative.
The statute thus assailed as unconstitutional was passed March 8th,
1869, and is entitled
An act to protect the health of the city of New Orleans, to locate the
stock landings and slaughterhouses, and to incorporate the Crescent City
Livestock Landing aud Slaughter-House Company.
The first section forbids the landing or slaughtering of animals whose
flesh is intended for food within the city of New Orleans and other
parishes and boundaries named and defined, or the keeping or
establishing any slaughterhouses or abattoirs within those limits except
by the corporation thereby created, which is also limited to certain
places afterwards mentioned. Suitable penalties are enacted for
violations of this prohibition.
The second section designates the corporators, gives the name to the
corporation, and confers on it the usual corporate powers.
The third and fourth sections authorize the company to establish and
erect within certain territorial limits, therein defined, one or more
stockyards, stock landings, and slaughterhouses, and imposes upon it the
duty of erecting, on or before the first day of June, 1869, one grand
slaughterhouse of sufficient capacity for slaughtering five hundred
animals per day.
It declares that the company, after it shall have prepared all the
necessary buildings, yards, and other conveniences for that purpose,
shall have the sole and exclusive privilege of conducting and carrying
on the livestock landing and slaughterhouse business within the limits
and privilege granted by the act, and that all such animals shall be
landed at the stock landings and slaughtered at the slaughterhouses of
the company, and nowhere else. Penalties are enacted for infractions of
this provision, and prices fixed for the maximum charges of the company
for each steamboat and for each animal landed.
Section five orders the closing up of all other stock landings [p60] and
slaughterhouses after the first day of June, in the parishes of Orleans,
Jefferson, and St. Bernard, and makes it the duty of the company to
permit any person to slaughter animals in their slaughterhouses under a
heavy penalty for each refusal. Another section fixes a limit to the
charges to be made by the company for each animal so slaughtered in
their building, and another provides for an inspection of all animals
intended to be so slaughtered by an officer appointed by the governor of
the State for that purpose.
These are the principal features of the statute, and are all that have
any bearing upon the questions to be decided by us.
This statute is denounced not only as creating a monopoly and conferring
odious and exclusive privileges upon a small number of persons at the
expense of the great body of the community of New Orleans, but it is
asserted that it deprives a large and meritorious class of citizens --
the whole of the butchers of the city -- of the right to exercise their
trade, the business to which they have been trained and on which they
depend for the support of themselves and their families, and that the
unrestricted exercise of the business of butchering is necessary to the
daily subsistence of the population of the city.
But a critical examination of the act hardly justifies these assertions.
It is true that it grants, for a period of twenty-five years, exclusive
privileges. And whether those privileges are at the expense of the
community in the sense of a curtailment of any of their fundamental
rights, or even in the sense of doing them an injury, is a question open
to considerations to be hereafter stated. But it is not true that it
deprives the butchers of the right to exercise their trade, or imposes
upon them any restriction incompatible with its successful pursuit, or
furnishing the people of the city with the necessary daily supply of
animal food.
The act divides itself into two main grants of privilege, the one in
reference to stock landings and stockyards, and [p61] the other to
slaughterhouses. That the landing of livestock in large droves, from
steamboats on the bank of the river, and from railroad trains, should,
for the safety and comfort of the people and the care of the animals, be
limited to proper places, and those not numerous it needs no argument to
prove. Nor can it be injurious to the general community that, while the
duty of making ample preparation for this is imposed upon a few men, or
a corporation, they should, to enable them to do it successfully, have
the exclusive right of providing such landing places, and receiving a
fair compensation for the service.
It is, however, the slaughterhouse privilege which is mainly relied on
to justify the charges of gross injustice to the public and invasion of
private right.
It is not, and cannot be successfully controverted that it is both the
right and the duty of the legislative body -- the supreme power of the
State or municipality -- to prescribe and determine the localities where
the business of slaughtering for a great city may be conducted. To do
this effectively, it is indispensable that all persons who slaughter
animals for food shall do it in those places and nowhere else.
The statute under consideration defines these localities and forbids
slaughtering in any other. It does not, as has been asserted, prevent
the butcher from doing his own slaughtering. On the contrary, the
Slaughter-House Company is required, under a heavy penalty, to permit
any person who wishes to do so to slaughter in their houses, and they
are bound to make ample provision for the convenience of all the
slaughtering for the entire city. The butcher then is still permitted to
slaughter, to prepare, and to sell his own meats; but he is required to
slaughter at a specified place, and to pay a reasonable compensation for
the use of the accommodations furnished him at that place.
The wisdom of the monopoly granted by the legislature may be open to
question, but it is difficult to see a justification for the assertion
that the butchers are deprived of the right to labor in their
occupation, or the people of their daily service in preparing food, or
how this statute, with the [p62] duties and guards imposed upon the
company, can be said to destroy the business of the butcher, or
seriously interfere with its pursuit.
The power here exercised by the legislature of Louisiana is, in its
essential nature, one which has been, up to the present period in the
constitutional history of this country, always conceded to belong to the
States, however it may now be questioned in some of its details.
Unwholesome trades, slaughterhouses, operations offensive to the senses,
the deposit of powder, the application of steam power to propel cars,
the building with combustible materials, and the burial of the dead, may
all,
says Chancellor Kent, [n2]
be interdicted by law, in the midst of dense masses of population, on
the general and rational principle that every person ought so to use his
property as not to injure his neighbors, and that private interests must
be made subservient to the general interests of the community.
This is called the police power, and it is declared by Chief Justice
Shaw [n3] that it is much easier to perceive and realize the existence
and sources of it than to mark its boundaries, or prescribe limits to
its exercise.
This power is, and must be from its very nature, incapable of any very
exact definition or limitation. Upon it depends the security of social
order, the life and health of the citizen, the comfort of an existence
in a thickly populated community, the enjoyment of private social life,
and the beneficial use of property. "It extends," says another eminent
judge, [n4]
to the protection of the lives, limbs, health, comfort, and quiet of all
persons, and the protection of all property within the State, . . . and
persons and property are subjected to all kinds of restraints and
burdens in order to secure the general comfort, health, and prosperity
of the State. Of the perfect right of the legislature to do this, no
question ever was, or, upon acknowledged general principles, ever can be
made, so far as natural persons are concerned. [p63]
The regulation of the place and manner of conducting the slaughtering of
animals, and the business of butchering within a city, and the
inspection of the animals to be killed for meat, and of the meat
afterwards, are among the most necessary and frequent exercises of this
power. It is not, therefore, needed that we should seek for a
comprehensive definition, but rather look for the proper source of its
exercise.
In Gibbons v. Ogden, [n5] Chief Justice Marshall, speaking of inspection
laws passed by the States, says:
They form a portion of that immense mass of legislation which controls
everything within the territory of a State not surrendered to the
General Government -- all which can be most advantageously administered
by the States themselves. Inspection laws, quarantine laws, health laws
of every description, as well as laws for regulating the internal
commerce of a State, and those which respect turnpike roads, ferries,
&c., are component parts. No direct general power over these objects is
granted to Congress, and consequently they remain subject to State
legislation.
The exclusive authority of State legislation over this subject is
strikingly illustrated in the case of the City of New York v. Miln. [n6]
In that case, the defendant was prosecuted for failing to comply with a
statute of New York which required of every master of a vessel arriving
from a foreign port in that of New York City to report the names of all
his passengers, with certain particulars of their age, occupation, last
place of settlement, and place of their birth. It was argued that this
act was an invasion of the exclusive right of Congress to regulate
commerce. And it cannot be denied that such a statute operated at least
indirectly upon the commercial intercourse between the citizens of the
United States and of foreign countries. But notwithstanding this, it was
held to be an exercise of the police power properly within the control
of the State, and unaffected by the clause of the Constitution which
conferred on Congress the right to regulate commerce. [p64]
To the same purpose are the recent cases of the The License Tax, [n7]
and United States v. De Witt. [n8] In the latter case, an act of
Congress which undertook as a part of the internal revenue laws to make
it a misdemeanor to mix for sale naphtha and illuminating oils, or to
sell oil of petroleum inflammable at less than a prescribed temperature,
was held to be void because, as a police regulation, the power to make
such a law belonged to the States, and did not belong to Congress.
It cannot be denied that the statute under consideration is aptly framed
to remove from the more densely populated part of the city the noxious
slaughterhouses, and large and offensive collections of animals
necessarily incident to the slaughtering business of a large city, and
to locate them where the convenience, health, and comfort of the people
require they shall be located. And it must be conceded that the means
adopted by the act for this purpose are appropriate, are stringent, and
effectual. But it is said that, in creating a corporation for this
purpose, and conferring upon it exclusive privileges -- privileges which
it is said constitute a monopoly -- the legislature has exceeded its
power. If this statute had imposed on the city of New Orleans precisely
the same duties, accompanied by the same privileges, which it has on the
corporation which it created, it is believed that no question would have
been raised as to its constitutionality. In that case the effect on the
butchers in pursuit of their occupation and on the public would have
been the same as it is now. Why cannot the legislature confer the same
powers on another corporation, created for a lawful and useful public
object, that it can on the municipal corporation already existing? That
wherever a legislature has the right to accomplish a certain result, and
that result is best attained by means of a corporation, it has the right
to create such a corporation, and to endow it with the powers necessary
to effect the desired and lawful purpose, seems hardly to admit of
debate. The proposition is ably discussed and affirmed in the case of
McCulloch v. The State of Maryland [n9] in relation to the power of
Congress to organize [p65] the Bank of the United States to aid in the
fiscal operations of the government.
It can readily be seen that the interested vigilance of the corporation
created by the Louisiana legislature will be more efficient in enforcing
the limitation prescribed for the stock landing and slaughtering
business for the good of the city than the ordinary efforts of the
officers of the law.
Unless, therefore, it can be maintained that the exclusive privilege
granted by this charter to the corporation is beyond the power of the
legislature of Louisiana, there can be no just exception to the validity
of the statute. And, in this respect, we are not able to see that these
privileges are especially odious or objectionable. The duty imposed as a
consideration for the privilege is well defined, and its enforcement
well guarded. The prices or charges to be made by the company are
limited by the statute, and we are not advised that they are, on the
whole, exorbitant or unjust.
The proposition is therefore reduced to these terms: can any exclusive
privileges be granted to any of its citizens, or to a corporation, by
the legislature of a State?
The eminent and learned counsel who has twice argued the negative of
this question has displayed a research into the history of monopolies in
England and the European continent only equalled by the eloquence with
which they are denounced.
But it is to be observed that all such references are to monopolies
established by the monarch in derogation of the rights of his subjects,
or arise out of transactions in which the people were unrepresented, and
their interests uncared for. The great Case of Monopolies, reported by
Coke and so fully stated in the brief, was undoubtedly a contest of the
commons against the monarch. The decision is based upon the ground that
it was against common law, and the argument was aimed at the unlawful
assumption of power by the crown, for whoever doubted the authority of
Parliament to change or modify the common law? The discussion in the
House of Commons cited from Macaulay clearly [p66] establishes that the
contest was between the crown and the people represented in Parliament.
But we think it may be safely affirmed that the Parliament of Great
Britain, representing the people in their legislative functions, and the
legislative bodies of this country, have, from time immemorial to the
present day, continued to grant to persons and corporations exclusive
privileges -- privileges denied to other citizens -- privileges which
come within any just definition of the word monopoly, as much as those
now under consideration, and that the power to do this has never been
questioned or denied. Nor can it be truthfully denied that some of the
most useful and beneficial enterprises set on foot for the general good
have been made successful by means of these exclusive rights, and could
only have been conducted to success in that way.
It may, therefore, be considered as established that the authority of
the legislature of Louisiana to pass the present statute is ample unless
some restraint in the exercise of that power be found in the
constitution of that State or in the amendments to the Constitution of
the United States, adopted since the date of the decisions we have
already cited.
If any such restraint is supposed to exist in the constitution of the
State, the Supreme Court of Louisiana having necessarily passed on that
question, it would not be open to review in this court.
The plaintiffs in error, accepting this issue, allege that the statute
is a violation of the Constitution of the United States in these several
particulars:
That it creates an involuntary servitude forbidden by the thirteenth
article of amendment;
That it abridges the privileges and immunities of citizens of the United
States;
That it denies to the plaintiffs the equal protection of the laws; and,
That it deprives them of their property without due process of law,
contrary to the provisions of the first section of the fourteenth
article of amendment. [p67]
This court is thus called upon for the first time to give construction
to these articles.
We do not conceal from ourselves the great responsibility which this
duty devolves upon us. No questions so far-reaching and pervading in
their consequences, so profoundly interesting to the people of this
country, and so important in their bearing upon the relations of the
United States, of the several States to each other, and to the citizens
of the States and of the United States, have been before this court
during the official life of any of its present members. We have given
every opportunity for a full hearing at the bar; we have discussed it
freely and compared views among ourselves; we have taken ample time for
careful deliberation, and we now propose to announce the judgments which
we have formed in the construction of those articles, so far as we have
found them necessary to the decision of the cases before us, and beyond
that, we have neither the inclination nor the right to go.
Twelve articles of amendment were added to the Federal Constitution soon
after the original organization of the government under it in 1789. Of
these, all but the last were adopted so soon afterwards as to justify
the statement that they were practically contemporaneous with the
adoption of the original; and the twelfth, adopted in eighteen hundred
and three, was so nearly so as to have become, like all the others,
historical and of another age. But within the first eight years, three
other articles of amendment of vast importance have been added by the
voice of the people to that now venerable instrument.
The most cursory glance at these articles discloses a unity of purpose,
when taken in connection with the history of the times, which cannot
fail to have an important bearing on any question of doubt concerning
their true meaning. Nor can such doubts, when any reasonably exist, be
safely and rationally solved without a reference to that history, for in
it is found the occasion and the necessity for recurring again to the
great source of power in this country, the people of the States, for
additional guarantees of human rights, [p68] additional powers to the
Federal government; additional restraints upon those of the States.
Fortunately, that history is fresh within the memory of us all, and its
leading features, as they bear upon the matter before us, free from doubt.
The institution of African slavery, as it existed in about half the
States of the Union, and the contests pervading the public mind for many
years between those who desired its curtailment and ultimate extinction
and those who desired additional safeguards for its security and
perpetuation, culminated in the effort, on the part of most of the
States in which slavery existed, to separate from the Federal government
and to resist its authority. This constituted the war of the rebellion,
and whatever auxiliary causes may have contributed to bring about this
war, undoubtedly the overshadowing and efficient cause was African slavery.
In that struggle, slavery, as a, legalized social relation, perished. It
perished as a necessity of the bitterness and force of the conflict.
When the armies of freedom found themselves upon the soil of slavery,
they could do nothing less than free the poor victims whose enforced
servitude was the foundation of the quarrel. And when hard-pressed in
the contest, these men (for they proved themselves men in that terrible
crisis) offered their services and were accepted by thousands to aid in
suppressing the unlawful rebellion, slavery was at an end wherever the
Federal government succeeded in that purpose. The proclamation of
President Lincoln expressed an accomplished fact as to a large portion
of the insurrectionary districts when he declared slavery abolished in
them all. But the war being over, those who had succeeded in
reestablishing the authority of the Federal government were not content
to permit this great act of emancipation to rest on the actual results
of the contest or the proclamation of the Executive, both of which might
have been questioned in after times, and they determined to place this
main and most valuable result in the Constitution of the restored Union
as one of its fundamental articles. Hence, the thirteenth article of
amendment of that instrument. [p69] Its two short sections seem hardly
to admit of construction, so vigorous is their expression and so
appropriate to the purpose we have indicated.
1. Neither slavery nor involuntary servitude, except as a punishment for
crime, whereof the party shall have been duly convicted, shall exist
within the United States or any place subject to their jurisdiction.
2. Congress shall have power to enforce this article by appropriate
legislation.
To withdraw the mind from the contemplation of this grand yet simple
declaration of the personal freedom of all the human race within the
jurisdiction of this government -- a declaration designed to establish
the freedom of four millions of slaves -- and with a microscopic search
endeavor to find in it a reference to servitudes which may have been
attached to property in certain localities requires an effort, to say
the least of it.
That a personal servitude was meant is proved by the use of the word
"involuntary," which can only apply to human beings. The exception of
servitude as a punishment for crime gives an idea of the class of
servitude that is meant. The word servitude is of larger meaning than
slavery, as the latter is popularly understood in this country, and the
obvious purpose was to forbid all shades and conditions of African
slavery. It was very well understood that, in the form of apprenticeship
for long terms, as it had been practiced in the West India Islands, on
the abolition of slavery by the English government, or by reducing the
slaves to the condition of serfs attached to the plantation, the purpose
of the article might have been evaded if only the word slavery had been
used. The case of the apprentice slave, held under a law of Maryland,
liberated by Chief Justice Chase on a writ of habeas corpus under this
article, illustrates this course of observation. [n10] And it is all
that we deem necessary to say on the application of that article to the
statute of Louisiana, now under consideration. [p70]
The process of restoring to their proper relations with the Federal
government and with the other States those which had sided with the
rebellion, undertaken under the proclamation of President Johnson in
1865 and before the assembling of Congress, developed the fact that,
notwithstanding the formal recognition by those States of the abolition
of slavery, the condition of the slave race would, without further
protection of the Federal government, be almost as bad as it was before.
Among the first acts of legislation adopted by several of the States in
the legislative bodies which claimed to be in their normal relations
with the Federal government were laws which imposed upon the colored
race onerous disabilities and burdens and curtailed their rights in the
pursuit of life, liberty, and property to such an extent that their
freedom was of little value, while they had lost the protection which
they had received from their former owners from motives both of interest
and humanity.
They were in some States forbidden to appear in the towns in any other
character than menial servants. They were required to reside on and
cultivate the soil without the right to purchase or own it. They were
excluded from many occupations of gain, and were not permitted to give
testimony in the courts in any case where a white man was a party. It
was said that their lives were at the mercy of bad men, either because
the laws for their protection were insufficient or were not enforced.
These circumstances, whatever of falsehood or misconception may have
been mingled with their presentation, forced upon the statesmen who had
conducted the Federal government in safety through the crisis of the
rebellion, and who supposed that, by the thirteenth article of
amendment, they had secured the result of their labors, the conviction
that something more was necessary in the way of constitutional
protection to the unfortunate race who had suffered so much. They
accordingly passed through Congress the proposition for the fourteenth
amendment, and they declined to treat as restored to their full
participation in the government of the Union the States which had been
in insurrection until they [p71] ratified that article by a formal vote
of their legislative bodies.
Before we proceed to examine more critically the provisions of this
amendment, on which the plaintiffs in error rely, let us complete and
dismiss the history of the recent amendments, as that history relates to
the general purpose which pervades them all. A few years' experience
satisfied the thoughtful men who had been the authors of the other two
amendments that, notwithstanding the restraints of those articles on the
States and the laws passed under the additional powers granted to
Congress, these were inadequate for the protection of life, liberty, and
property, without which freedom to the slave was no boon. They were in
all those States denied the right of suffrage. The laws were
administered by the white man alone. It was urged that a race of men
distinctively marked, as was the negro, living in the midst of another
and dominant race, could never be fully secured in their person and
their property without the right of suffrage.
Hence, the fifteenth amendment, which declares that
the right of a citizen of the United States to vote shall not be denied
or abridged by any State on account of race, color, or previous
condition of servitude.
The negro having, by the fourteenth amendment, been declared to be a
citizen of the United States, is thus made a voter in every State of the
Union.
We repeat, then, in the light of this recapitulation of events, almost
too recent to be called history, but which are familiar to us all, and
on the most casual examination of the language of these amendments, no
one can fail to be impressed with the one pervading purpose found in
them all, lying at the foundation of each, and without which none of
them would have been even suggested; we mean the freedom of the slave
race, the security and firm establishment of that freedom, and the
protection of the newly made freeman and citizen from the oppressions of
those who had formerly exercised unlimited dominion over him. It is true
that only the fifteenth amendment, in terms, [p72] mentions the negro by
speaking of his color and his slavery. But it is just as true that each
of the other articles was addressed to the grievances of that race, and
designed to remedy them as the fifteenth.
We do not say that no one else but the negro can share in this
protection. Both the language and spirit of these articles are to have
their fair and just weight in any question of construction. Undoubtedly
while negro slavery alone was in the mind of the Congress which proposed
the thirteenth article, it forbids any other kind of slavery, now or
hereafter. If Mexican peonage or the Chinese coolie labor system shall
develop slavery of the Mexican of Chinese race within our territory,
this amendment may safely be trusted to make it void. And so, if other
rights are assailed by the States which properly and necessarily fall
within the protection of these articles, that protection will apply,
though the party interested may not be of African descent. But what we
do say, and what we wish to be understood, is that, in any fair and just
construction of any section or phrase of these amendments, it is
necessary to look to the purpose which we have said was the pervading
spirit of them all, the evil which they were designed to remedy, and the
process of continued addition to the Constitution, until that purpose
was supposed to be accomplished as far as constitutional law can
accomplish it.
The first section of the fourteenth article to which our attention is
more specially invited opens with a definition of citizenship -- not
only citizenship of the United States, but citizenship of the States. No
such definition was previously found in the Constitution, nor had any
attempt been made to define it by act of Congress. It had been the
occasion of much discussion in the courts, by the executive departments,
and in the public journals. It had been said by eminent judges that no
man was a citizen of the United States except as he was a citizen of one
of the States composing the Union. Those, therefore, who had been born
and resided always in the District of Columbia or in the Territories,
though within the United States, were not citizens. Whether [p73] this
proposition was sound or not had never been judicially decided. But it
had been held by this court, in the celebrated Dred Scott case, only a
few years before the outbreak of the civil war, that a man of African
descent, whether a slave or not, was not and could not be a citizen of a
State or of the United States. This decision, while it met the
condemnation of some of the ablest statesmen and constitutional lawyers
of the country, had never been overruled, and if was to be accepted as a
constitutional limitation of the right of citizenship, then all the
negro race who had recently been made freemen were still not only not
citizens, but were incapable of becoming so by anything short of an
amendment to the Constitution.
To remove this difficulty primarily, and to establish clear and
comprehensive definition of citizenship which should declare what should
constitute citizenship of the United States and also citizenship of a
State, the first clause of the first section was framed.
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside.
The first observation we have to make on this clause is that it puts at
rest both the questions which we stated to have been the subject of
differences of opinion. It declares that persons may be citizens of the
United States without regard to their citizenship of a particular State,
and it overturns the Dred Scott decision by making all persons born
within the United States and subject to its jurisdiction citizens of the
United States. That its main purpose was to establish the citizenship of
the negro can admit of no doubt. The phrase, "subject to its
jurisdiction" was intended to exclude from its operation children of
ministers, consuls, and citizens or subjects of foreign States born
within the United States.
The next observation is more important in view of the arguments of
counsel in the present case. It is that the distinction between
citizenship of the United States and citizenship of a State is clearly
recognized and established. [p74] Not only may a man be a citizen of the
United States without being a citizen of a State, but an important
element is necessary to convert the former into the latter. He must
reside within the State to make him a citizen of it, but it is only
necessary that he should be born or naturalized in the United States to
be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United
States, and a citizenship of a State, which are distinct from each
other, and which depend upon different characteristics or circumstances
in the individual.
We think this distinction and its explicit recognition in this amendment
of great weight in this argument, because the next paragraph of this
same section, which is the one mainly relied on by the plaintiffs in
error, speaks only of privileges and immunities of citizens of the
United States, and does not speak of those of citizens of the several
States. The argument, however, in favor of the plaintiffs rests wholly
on the assumption that the citizenship is the same, and the privileges
and immunities guaranteed by the clause are the same.
The language is, "No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States."
It is a little remarkable, if this clause was intended as a protection
to the citizen of a State against the legislative power of his own
State, that the word citizen of the State should be left out when it is
so carefully used, and used in contradistinction to citizens of the
United States in the very sentence which precedes it. It is too clear
for argument that the change in phraseology was adopted understandingly
and, with a purpose.
Of the privileges and immunities of the citizen of the United States,
and of the privileges and immunities of the citizen of the State, and
what they respectively are, we will presently consider; but we wish to
state here that it is only the former which are placed by this clause
under the protection of the Federal Constitution, and that the latter,
whatever they may be, are not intended to have any additional protection
by this paragraph of the amendment. [p75]
If, then, there is a difference between the privileges and immunities
belonging to a citizen of the United States as such and those belonging
to the citizen of the State as such, the latter must rest for their
security and protection where they have heretofore rested, for they are
not embraced by this paragraph of the amendment.
The first occurrence of the words "privileges and immunities" in our
constitutional history is to be found in the fourth of the articles of
the old Confederation.
It declares
that the better to secure and perpetuate mutual friendship and
intercourse among the people of the different States in this Union, the
free inhabitants of each of these States, paupers, vagabonds, and
fugitives from justice excepted, shall be entitled to all the privileges
and immunities of free citizens in the several States, and the people of
each State shall have free ingress and regress to and from any other
State, and shall enjoy therein all the privileges of trade and commerce,
subject to the same duties, impositions, and restrictions as the
inhabitants thereof respectively.
In the Constitution of the United States, which superseded the Articles
of Confederation, the corresponding provision is found in section two of
the fourth article, in the following words: "The citizens of each State
shall be entitled to all the privileges and immunities of citizens of
the several States."
There can be but little question that the purpose of both these
provisions is the same, and that the privileges and immunities intended
are the same in each. In the article of the Confederation, we have some
of these specifically mentioned, and enough perhaps to give some general
idea of the class of civil rights meant by the phrase.
Fortunately, we are not without judicial construction of this clause of
the Constitution. The first and the leading case on the subject is that
of Corfield v. Coryell, decided by Mr. Justice Washington in the Circuit
Court for the District of Pennsylvania in 1823. [n11] [p76]
"The inquiry," he says,
is what are the privileges and immunities of citizens of the several
States? We feel no hesitation in confining these expressions to those
privileges and immunities which are fundamental; which belong of right
to the citizens of all free governments, and which have at all times
been enjoyed by citizens of the several States which compose this Union,
from the time of their becoming free, independent, and sovereign. What
these fundamental principles are it would be more tedious than difficult
to enumerate. They may all, however, be comprehended under the following
general heads: protection by the government, with the right to acquire
and possess property of every kind and to pursue and obtain happiness
and safety, subject, nevertheless, to such restraints as the government
may prescribe for the general good of the whole.
This definition of the privileges and immunities of citizens of the
States is adopted in the main by this court in the recent case of Ward
v. The State of Maryland, [n12] while it declines to undertake an
authoritative definition beyond what was necessary to that decision. The
description, when taken to include others not named, but which are of
the same general character, embraces nearly every civil right for the
establishment and protection of which organized government is
instituted. They are, in the language of Judge Washington, those rights
which are fundamental. Throughout his opinion, they are spoken of as
rights belonging to the individual as a citizen of a State. They are so
spoken of in the constitutional provision which he was construing. And
they have always been held to be the class of rights which the State
governments were created to establish and secure.
In the case of Paul v. Virginia, [n13] the court, in expounding this
clause of the Constitution, says that
the privileges and immunities secured to citizens of each State in the
several States by the provision in question are those privileges and
immunities which are common to the citizens in the latter [p77] States
under the constitution and laws by virtue of their being citizens.
The constitutional provision there alluded to did not create those
rights, which it called privileges and immunities of citizens of the
States. It threw around them in that clause no security for the citizen
of the State in which they were claimed or exercised. Nor did it profess
to control the power of the State governments over the rights of its own
citizens.
Its sole purpose was to declare to the several States that, whatever
those rights, as you grant or establish them to your own citizens, or as
you limit or qualify or impose restrictions on their exercise, the same,
neither more nor less, shall be the measure of the rights of citizens of
other States within your jurisdiction.
It would be the vainest show of learning to attempt to prove by
citations of authority that, up to the adoption of the recent
amendments, no claim or pretence was set up that those rights depended
on the Federal government for their existence or protection beyond the
very few express limitations which the Federal Constitution imposed upon
the States -- such, for instance, as the prohibition against ex post
facto laws, bills of attainder, and laws impairing the obligation of
contracts. But, with the exception of these and a few other
restrictions, the entire domain of the privileges and immunities of
citizens of the States, as above defined, lay within the constitutional
and legislative power of the States, and without that of the Federal
government. Was it the purpose of the fourteenth amendment, by the
simple declaration that no State should make or enforce any law which
shall abridge the privileges and immunities of citizens of the United
States, to transfer the security and protection of all the civil rights
which we have mentioned, from the States to the Federal government? And
where it is declared that Congress Shall have the power to enforce that
article, was it intended to bring within the power of Congress the
entire domain of civil rights heretofore belonging exclusively to the
States?
All this and more must follow if the proposition of the [p78] plaintiffs
in error be sound. For not only are these rights subject to the control
of Congress whenever, in its discretion, any of them are supposed to be
abridged by State legislation, but that body may also pass laws in
advance, limiting and restricting the exercise of legislative power by
the States, in their most ordinary and usual functions, as in its
judgment it may think proper on all such subjects. And still further,
such a construction followed by the reversal of the judgments of the
Supreme Court of Louisiana in these cases, would constitute this court a
perpetual censor upon all legislation of the States, on the civil rights
of their own citizens, with authority to nullify such as it did not
approve as consistent with those rights, as they existed at the time of
the adoption of this amendment. The argument, we admit, is not always
the most conclusive which is drawn from the consequences urged against
the adoption of a particular construction of an instrument. But when, as
in the case before us, these consequences are so serious, so
far-reaching and pervading, so great a departure from the structure and
spirit of our institutions; when the effect is to fetter and degrade the
State governments by subjecting them to the control of Congress in the
exercise of powers heretofore universally conceded to them of the most
ordinary and fundamental character; when, in fact, it radically changes
the whole theory of the relations of the State and Federal governments
to each other and of both these governments to the people, the argument
has a force that is irresistible in the absence of language which
expresses such a purpose too clearly to admit of doubt.
We are convinced that no such results were intended by the Congress
which proposed these amendments, nor by the legislatures of the States
which ratified them.
Having shown that the privileges and immunities relied on in the
argument are those which belong to citizens of the States as such, and
that they are left to the State governments for security and protection,
and not by this article placed under the special care of the Federal
government, we may hold ourselves excused from defining the privileges
[p79] and immunities of citizens of the United States which no State can
abridge until some case involving those privileges may make it necessary
to do so.
But lest it should be said that no such privileges and immunities are to
he found if those we have been considering are excluded, we venture to
suggest some which owe their existence to the Federal government, its
national character, its Constitution, or its laws.
One of these is well described in the case of Crandall v. Nevada. [n14]
It is said to be the right of the citizen of this great country,
protected by implied guarantees of its Constitution,
to come to the seat of government to assert any claim he may have upon
that government, to transact any business he may have with it, to seek
its protection, to share its offices, to engage in administering its
functions. He has the right of free access to its seaports, through
which operations of foreign commerce are conducted, to the
sub-treasuries, land offices, and courts of justice in the several States.
And quoting from the language of Chief Justice Taney in another case, it
is said
that, for all the great purposes for which the Federal government was
established, we are one people, with one common country, we are all
citizens of the United States;
and it is, as such citizens, that their rights are supported in this
court in Crandall v. Nevada.
Another privilege of a citizen of the United States is to demand the
care and protection of the Federal government over his life, liberty,
and property when on the high seas or within the jurisdiction of a
foreign government. Of this there can be no doubt, nor that the right
depends upon his character as a citizen of the United States. The right
to peaceably assemble and petition for redress of grievances, the
privilege of the writ of habeas corpus, are rights of the citizen
guaranteed by the Federal Constitution. The right to use the navigable
waters of the United States, however they may penetrate the territory of
the several States, all rights secured to our citizens by treaties with
foreign nations, [p80] are dependent upon citizenship of the United
States, and not citizenship of a State. One of these privileges is
conferred by the very article under consideration. It is that a citizen
of the United States can, of his own volition, become a citizen of any
State of the Union by a bona fide residence therein, with the same
rights as other citizens of that State. To these may be added the rights
secured by the thirteenth and fifteenth articles of amendment, and by
the other clause of the fourteenth, next to be considered.
But it is useless to pursue this branch of the inquiry, since we are of
opinion that the rights claimed by these plaintiffs in error, if they
have any existence, are not privileges and immunities of citizens of the
United States within the meaning of the clause of the thirteenth
amendment under consideration.
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property
without due process of law, nor deny to any person within its
jurisdiction the equal protection of its laws.
The argument has not been much pressed in these cases that the
defendant's charter deprives the plaintiffs of their property without
due process of law, or that it denies to them the equal protection of
the law. The first of these paragraphs has been in the Constitution
since the adoption of the fifth amendment, as a restraint upon the
Federal power. It is also to be found in some form of expression in the
constitutions of nearly all the States as a restraint upon the power of
the States. This law, then, has practically been the same as it now is
during the existence of the government, except so far as the present
amendment may place the restraining power over the States in this matter
in the hands of the Federal government.
We are not without judicial interpretation, therefore, both State and
National, of the meaning of this clause. And it [p81] is sufficient to
say that under no construction of that provision that we have ever seen,
or any that we deem admissible, can the restraint imposed by the State
of Louisiana upon the exercise of their trade by the butchers of New
Orleans be held to be a deprivation of property within the meaning of
that provision.
"Nor shall any State deny to any person within its jurisdiction the
equal protection of the laws."
In the light of the history of these amendments, and the pervading
purpose of them, which we have already discussed, it is not difficult to
give a meaning to this clause. The existence of laws in the States where
the newly emancipated negroes resided, which discriminated with gross
injustice and hardship against them as a class, was the evil to be
remedied by this clause, and by it such laws are forbidden.
If, however, the States did not conform their laws to its requirements,
then by the fifth section of the article of amendment Congress was
authorized to enforce it by suitable legislation. We doubt very much
whether any action of a State not directed by way of discrimination
against the negroes as a class, or on account of their race, will ever
be held to come within the purview of this provision. It is so clearly a
provision for that race and that emergency that a strong case would be
necessary for its application to any other. But as it is a State that is
to be dealt with, and not alone the validity of its laws, we may safely
leave that matter until Congress shall have exercised its power, or some
case of State oppression, by denial of equal justice in its courts,
shall have claimed a decision at our hands. We find no such case in the
one before us, and do not deem it necessary to go over the argument
again, as it may have relation to this particular clause of the amendment.
In the early history of the organization of the government, its
statesmen seem to have divided on the line which should separate the
powers of the National government from those of the State governments,
and though this line has [p82] never been very well defined in public
opinion, such a division has continued from that day to this.
The adoption of the first eleven amendments to the Constitution so soon
after the original instrument was accepted shows a prevailing sense of
danger at that time from the Federal power. And it cannot be denied that
such a jealousy continued to exist with many patriotic men until the
breaking out of the late civil war. It was then discovered that the true
danger to the perpetuity of the Union was in the capacity of the State
organizations to combine and concentrate all the powers of the State,
and of contiguous States, for a determined resistance to the General
Government.
Unquestionably this has given great force to the argument, and added
largely to the number of those who believe in the necessity of a strong
National government.
But, however pervading this sentiment, and however it may have
contributed to the adoption of the amendments we have been considering,
we do not see in those amendments any purpose to destroy the main
features of the general system. Under the pressure of all the excited
feeling growing out of the war, our statesmen have still believed that
the existence of the State with powers for domestic and local
government, including the regulation of civil rights the rights of
person and of property was essential to the perfect working of our
complex form of government, though they have thought proper to impose
additional limitations on the States, and to confer additional power on
that of the Nation.
But whatever fluctuations may be seen in the history of public opinion
on this subject during the period of our national existence, we think it
will be found that this court, so far as its functions required, has
always held with a steady and an even hand the balance between State and
Federal power, and we trust that such may continue to be the history of
its relation to that subject so long as it shall have duties to perform
which demand of it a construction of the Constitution or of any of its
parts. [p83]
The judgments of the Supreme Court of Louisiana in these cases are
AFFIRMED.
*
The Butchers' Benevolent Association of New Orleans v. The Crescent City
Live-Stock Landing and Slaughter-House Company.
Paul Esteban, L. Ruch, J. P. Rouede, W. Maylie, S. Firmberg, B. Beaubay,
William Fagan, J. D. Broderick, N. Seibel, M. Lannes, J. Gitzinger, J.
P. Aycock, D. Verges, The Live-Stock Dealers' and Butchers' Association
of New Orleans, and Charles Cavaroc v. The State of Louisiana, ex rel.
S. Belden, Attorney-General.
The Butchers' Benevolent Association of New Orleans v. The Crescent City
Live-Stock Landing and Slaughter-House Company.
1. See infra, pp. 85, 86.
2. 2 Commentaries 340.
3. Commonwealth v. Alger, 7 Cushing 84.
4. Thorpe v. Rutland and Burlington Railroad Co., 27 Vermont 149.
5. 9 Wheaton 203.
6. 11 Peters 102.
7. 5 Wallace 471.
8. 9 id., 41.
9. 4 Wheaton 316.
10. Matter of Turner, 1 Abbott United States Reports 84.
11. 4 Washington's Circuit Court 371.
12. 12 Wallace 430.
13. 8 id., 180.
14. 6 Wallace 36.
5 U.S.C. § 556 : US Code - Section 556: Hearings; presiding employees;
powers and duties; burden of proof; evidence; record as basis of decision
Bottom of Form
(a) This section applies, according to the provisions thereof, to
hearings required by section 553 or 554 of this title to be
conducted in accordance with this section.
(b) There shall preside at the taking of evidence -
(1) the agency;
(2) one or more members of the body which comprises the agency;
or
(3) one or more administrative law judges appointed under
section 3105 of this title.
This subchapter does not supersede the conduct of specified classes
of proceedings, in whole or in part, by or before boards or other
employees specially provided for by or designated under statute.
The functions of presiding employees and of employees participating
in decisions in accordance with section 557 of this title shall be
conducted in an impartial manner. A presiding or participating
employee may at any time disqualify himself. On the filing in good
faith of a timely and sufficient affidavit of personal bias or
other disqualification of a presiding or participating employee,
the agency shall determine the matter as a part of the record and
decision in the case.
(c) Subject to published rules of the agency and within its
powers, employees presiding at hearings may -
(1) administer oaths and affirmations;
(2) issue subpenas authorized by law;
(3) rule on offers of proof and receive relevant evidence;
(4) take depositions or have depositions taken when the ends of
justice would be served;
(5) regulate the course of the hearing;
(6) hold conferences for the settlement or simplification of
the issues by consent of the parties or by the use of alternative
means of dispute resolution as provided in subchapter IV of this
chapter;
(7) inform the parties as to the availability of one or more
alternative means of dispute resolution, and encourage use of
such methods;
(8) require the attendance at any conference held pursuant to
paragraph (6) of at least one representative of each party who
has authority to negotiate concerning resolution of issues in
controversy;
(9) dispose of procedural requests or similar matters;
(10) make or recommend decisions in accordance with section 557
of this title; and
(11) take other action authorized by agency rule consistent
with this subchapter.
(d) Except as otherwise provided by statute, the proponent of a
rule or order has the burden of proof. Any oral or documentary
evidence may be received, but the agency as a matter of policy
shall provide for the exclusion of irrelevant, immaterial, or
unduly repetitious evidence. A sanction may not be imposed or rule
or order issued except on consideration of the whole record or
those parts thereof cited by a party and supported by and in
accordance with the reliable, probative, and substantial evidence.
The agency may, to the extent consistent with the interests of
justice and the policy of the underlying statutes administered by
the agency, consider a violation of section 557(d) of this title
sufficient grounds for a decision adverse to a party who has
knowingly committed such violation or knowingly caused such
violation to occur. A party is entitled to present his case or
defense by oral or documentary evidence, to submit rebuttal
evidence, and to conduct such cross-examination as may be required
for a full and true disclosure of the facts. In rule making or
determining claims for money or benefits or applications for
initial licenses an agency may, when a party will not be prejudiced
thereby, adopt procedures for the submission of all or part of the
evidence in written form.
(e) The transcript of testimony and exhibits, together with all
papers and requests filed in the proceeding, constitutes the
exclusive record for decision in accordance with section 557 of
this title and, on payment of lawfully prescribed costs, shall be
made available to the parties. When an agency decision rests on
official notice of a material fact not appearing in the evidence in
the record, a party is entitled, on timely request, to an
opportunity to show the contrary.
TITLES OF NOBILITY & JURISDICTION
TITLES OF NOBILITY
A "title" is a mark or designation, i.e., name by which anything is known.
In English law "nobility" is a division of the people.
In America, Titles of Nobility generally refer to government created
designators such as citizen, driver, taxpayer and the like. While they
may not appear to be "noble" they are created, never the less, to divide
the populace
Contracts are enforceable.
When gold and silver was taken from the hands of the American people, by
Executive Order in 1933, with complete disregard of the laws and
limitations of the u. S. Constitution, it "became necessary" for the
corporate United States to "create" a new system of law. They threw out
common Law and Equity Law and switched it for Admiralty/Maritime Law
(Negotiable Law) (now called Statutory Jurisdiction.)
Today, the courts we have are not courts of law; they are courts of
Commercial Contract.
The Constitution, in Article I, Section 10 gives us the unlimited right
to contract, as long as we do not infringe on the life, liberty or
property of someone else. Contracts are enforceable.
"The law provides that once State and Federal Jurisdiction has been
challenged, it must be proven."
"Jurisdiction, once challenged, cannot be assumed and must be decided."
Maine v. Thiboutot, 448 U.S. 1, (1980) 100 S.Ct. 2502, 65 L.Ed.2d 555
"The law requires proof of jurisdiction to appear on the record of the
administrative agency and all administrative proceedings."
Hagans v. Lavine, 415 U.S. 528 (1974)
Though not specifically alleged, defendant's challenge to subject matter
jurisdiction implicitly raised claim that default judgment against him
was void and relief should be granted under Rule 60(b)(4).
Honneus v. Donovan, 93 F.R.D. 433, 436-37 (1982), affd, 691 F.2d 1 1
(1st Cir. 1982)
"Jurisdiction can be challenged at any time."
Basso v. Utah Power and Light Co., 495 F.2d 906 (10th Cir. 1974)
"Defense of lack of jurisdiction over the subject matter may be raised
at any time, even on appeal."
Hill Top Developers v. Holiday Pines Serv. Corp., 478 So. 2d 368, 370
(Fla. 2d DCA 1985)
"Court must prove on the record, all jurisdiction facts related to the
jurisdiction asserted."
Lantana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F. Supp. 150
"Once challenged, jurisdiction cannot be assumed, it must be proved to
exist."
Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389
"Courts are constituted by authority and they cannot go beyond that
power delegated to them. If they act beyond that authority, and
certainly in contravention of it, their judgments and orders are
regarded as nullities ; they are not voidable, but simply void, and this
even prior to reversal."
Williamson v. Berry, 49 U.S. 8 How. 495 495 (1850)
"Once jurisdiction is challenged, the court cannot proceed when it
clearly appears that the court lacks jurisdiction, the court has no
authority to reach merits, but rather should dismiss the action."
Melo v. U.S., 505 F.2d 1026
"There is no discretion to ignore lack of jurisdiction."
Joyce v. U.S., 474 F.2d 215
"The burden shifts to the court to prove jurisdiction."
Rosemond v. Lambert, 469 F.2d 416
"Court must prove on the record, all jurisdiction facts related to the
jurisdiction asserted."
Latana v. Hopper, 102 F.2d 188; Chicago v. New York, 37 F.Supp. 150
Elk v. Wilkins is a 14th Amendment case, the concept is true concerning
all federal citizens. In other words, all federal citizens must be, by
their very definition, a person who is "completely subject" to the
jurisdiction of the federal government (such as a citizen of Washington
DC). Virtually any legal concept stated by the courts concerning a 14th
Amendment citizen is operative upon all federal citizens.
"The persons declared to be citizens are, "All persons born or
naturalized in the United States and subject to the jurisdiction
thereof." The evident meaning of these last words is not merely subject
in some respect or degree to the jurisdiction of the United States, but
completely subject..."
Elk v. Wilkins, 112 U.S. 94 (1884)
"The privileges and immunities clause of the 14th Amendment protects
very few rights because it neither incorporates the Bill of Rights nor
protects all rights of individual citizens. (See Slaughterhouse Cases,
83 US (16 Wall.) 36, 21 L. Ed. 394 (1873)). Instead this provision
protects only those rights peculiar to being a citizen of the federal
government; it does not protect those rights which relate to state
citizenship."
Jones v. Temmer, 57 F.3d 921, 839 F.Supp. 1226
"...the first eight amendments have uniformly been held not to be
protected from state action by the privilege and immunities clause [of
the 14th Amendment]."
Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939)
Volume 20 of Corpus Juris Secundum at 1758: "The United States
Government is a foreign corporation with respect to a state."
NY vs. re Merriam, 36N.E. 505; 141 N.Y. 479; affirmed 16 S.Ct. 1073; 41
L.Ed. 287.
"There are two classes of citizens under our form of government,
citizens of the United States and of the state; and one may be a citizen
of the former without being a citizen of the latter."
Gardina v. Board of Registrars of Jefferson County, 160 Ala. 155; 48 So.
788 (1909)
"The governments of the United States and of each state of the several
states are distinct from one another. The rights of a citizen under one
may be quite different from those which he has under the other".
Colgate v. Harvey, 296 U.S. 404 (1935)
"...rights of national citizenship as distinct from the fundamental or
natural rights inherent in state citizenship".
Madden v. Kentucky, 309 U.S. 83: 84 L.Ed. 590 (1940)
"It is quite clear, then, that there is a citizenship of the United
States, and a citizenship of a state, which are distinct from each other
and which depend upon different characteristics or circumstances in the
individual".
Slaughterhouse Cases, 83 U.S. (16 Wall.) 36; 21 L.Ed. 394 (1873)
"We have in our political system a government of the United States and a
government of each of the several States. Each one of these governments
is distinct from the others, and each has citizens of it's own..."
United States v. Cruikshank, 92 U.S. 542 (1875)
"There is a difference between privileges and immunities belonging to
the citizens of the United States as such, and those belonging to the
citizens of each state as such".
Ruhstrat v. People, 57 N.E. 41 (1900)
