dale edward reynolds · web viewthose were the words of the court in yick wo v hopkins, 118 u.s....

---------------------In Propria Persona---------------------.-------------, Idaho

IN THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ---------------

STATE OF IDAHO, ) Plaintiff/Appellee, )

CASE NO. CR-99-7486)

vs. )) APPELLANT’S BRIEF

--------------------, ) Defendant/Appellant.

)_______________________________ )

COMES NOW the Defendant /Appellant ----------, (hereafter

“Defendant”) and hereby submits his brief in support of his appeal in

Case No CR 99-7486.

FACTS

On September 7, 1999 a criminal complaint was filed against the

Defendant in the instant Case No. CR 99-7486 alleging a violation of

the ------------County Building Code.

On August 12, 1999, in Case Number CR-M99-6675, another

Criminal Complaint was filed against the Defendant. Complainant

APPELLANT’S BRIEF 1

-----------, being first duly sworn on oath, complained that the Defendant

did commit the crime of FAILURE TO OBTAIN A BUILDING PERMIT PRIOR

TO CONSTRUCTION, a Misdemeanor, -------County Building Code

Ordinance 221-A, Section 106.1 of the 1997 Uniform Building Code,

committed as follows ; That the Defendant, ------------, on or about June

1999, and thereafter, in the County of -------, State of Idaho, did willfully

and knowingly begin construction of a Single Family Residence, located

at --------, -------, Idaho 83833, without obtaining a building permit.

The Complaints in both cases CRM 99-7486 and CR 99-6675 use

identical wording except for the dates. The complaint in Case No. CR

99-07486 which was filed on September 7, 1999 reads: “on or about

the 12th day of August 1999, and thereafter” and the complaint in Case

No. CRM99-6675 which was filed on August 12, 1999 reads: “on or

about June 1999, and thereafter.”

In the instant case, with regard to the complaint, a warrant was

requested and subsequently issued on September 7, 1999 by order of

Magistrate J--- P--- L---. Bail was fixed in the aforementioned Warrant of

Arrest at $3,000 which coincidently was the approximate cost that

Defendant was being required to pay for the building permit.

The Defendant’s initial appearance, in the instant case, was held

before Judge E--- M-----, on June 26, 2000.

A jury trial was held before Judge E----- M------ in Case No. CRM

99-6675 on September 6, 2000. On Defendant’s Motion for Directed


Verdict of Acquittal pursuant to Rule 29 the case against the Defendant

was dismissed.

On September 8, 2000, without leave of the Court, an Amended

Complaint was filed by Deputy Prosecuting Attorney A—T-- in the

instant case as follows; FAILURE TO OBTAIN A BUILDING PERMIT PRIOR

TO CONSTRUCTION, a Misdemeanor, I.C. subsec. 39-4111, 39-4105,

39-4109, ----- County Building Code Ordinance 221-A Section 106.1 of

the 1997 Uniform Building Code, committed as follows : That the

defendant ------, on or about the 12th day of August, 1999, and

thereafter, in the County of -----, State of Idaho, did willfully and

knowingly continue construction of a Single Family Residence…”

On October 2, 2000, Defendant filed with the Court: “MOTION TO

DISMISS AND MOTION TO ENLARGE TIME AND REQUEST FOR

HEARING”. Defendant also filed with the Court on October 2, 2000,:

“AFFIDAVIT IN SUPPORT OF MOTION TO DISMISS AND MOTION TO

ENLARGE TIME”. Defendant’s Motion to Dismiss was based upon the

grounds of former jeopardy.

Defendants Motion to Dismiss was denied by Judge B--- E--- W---

for the following reasons as set forth on the face of the Notice of

Hearing which was filed into the Court record on October 12, 2000;

“Motion To Dismiss not timely filed and have no hearing dates and

times prior to trial date.”


On October 4, 2000 the State filed with the Court a “MOTION &

ORDER TO RELEASE EXHIBITS” in Case No. CRM 99-6675. The

aforementioned document stated that; “This motion is made by and for

the reason that the charges in Case No. CR M99-7486 arose from the

same incident and the State intends to submit the exhibits at the Jury

Trial scheduled for November 13, 2000 in front of Judge W----.”

On October 10, 2001, the Defendant filed “OBJECTION TO PLAINTIFF’S

MOTION TO RELEASE EXHIBITS” wherein the Defendant objected to State’s

“MOTION TO RELEASE EXHIBITS” on the grounds that their being submitted at

Defendant’s trial in the instant case would constitute former jeopardy.

At a pretrial conference held before Judge B--- W--- on October 13, 2000, the

Defendant argued that the charges in this case should be dismissed on grounds of former

jeopardy (Tr. pg. 28,LL.28-pg. 29,LL.1) and at the time the court noted that the

Defendant “had another similar charge (Tr. pg.28, LL. 16-17) that was just recently

dismissed.” The Defendant asserts, in one of his many issues on appeal, that the Court

ruled in error in denying his motions to dismiss for former jeopardy.

The Defendant also filed: “PETITION FOR LEAVE TO APPEAL FROM

INTERLOCUTORY ORDER” on October 27, 2000, wherein he sought relief from the

District Court because he believed he had been denied his fundamental right to present

motions and his right to have his motions heard in this case.

At a jury status call hearing held before the Honorable Judge B----W---- on

November 13, 2000, in the instant case, the Court was notified by STATE’s attorney that

the aforementioned STATE’S “ MOTION TO RELEASE EXHIBITS “ was noticed for a


hearing on December 13th, 2000, in Case No. CRM 99-6675, but proceeded to take up the

matter even though proper notice was not given to the Defendant that there was to be a

hearing on the matter and the issue of whether the exhibits from the first case would be

released for use as evidence in the instant case was not properly before the Court. An

“ORDER TO RELEASE EXHIBITS” was subsequently filed into the record of this case

on November 14, 2000.

On November 17, 2000, the Defendant filed in the instant case: “MOTION TO

DISMISS” wherein he objected to the amended complaint being filed without STATE’S

attorney having requested leave of the Court or without any order granting leave to

STATE’S attorney being issued by the Court.

Also, therein, the Defendant objected to the “AMENDED COMPLAINT” filed in

this case on the grounds that it was filed over a year after the original Complaint was

filed in violation of Idaho Code 19-403 which states that “A prosecution for any

misdemeanor must be commenced by the filing of the Complaint…within one year after

its commission.”

Defendants “MOTION TO DISMISS” also raised objection to the action in this

case and argued, by way of the brief filed in support of his motion to dismiss, that said

action was in violation of Idaho Code 19-3506 due to the first case (CRM 99-6675)

having been dismissed.

On November 16, 2000, a jury trial was held in this matter and the Defendant was

found guilty. The Defendant appeals his conviction on the following grounds;

ISSUES ON APPEAL


1) Whether Defendant’s statutory right to not be placed in former jeopardy (I.C. 19-

3506) was violated and whether the dismissal of Defendant’s previous case (No.

CRM 99-6675) should have been a jurisdictional bar against a subsequent

prosecution for the same offense.

2) Whether Defendant’s right to due process was violated when the trial court ruled on a

motion filed and set for hearing in his previously dismissed case wherein the STATE

was requesting that the evidence and exhibits be released so as to be used in the

instant case and subsequently ordered that the same be released over the Defendant’s

objection.

3) Whether the trial court abused its discretion and committed error prejudicial to the

Defendant when it refused to give to the jury Defendant’s proposed jury instruction

regarding statutory exemption to the building permit requirement.

4) Whether Defendant was required by law to contract with a political subdivision of the

STATE OF IDAHO known as ----County to have a public inspection of his private

dwelling located in ----, Idaho.

ISSUE NO. 1

The Defendant asserts on appeal that his statutory right against being placed in

former jeopardy, I.C. 19-3506, was violated and that the trial court abused its discretion

in denying the Defendants many motions to the Court for dismissal of the charges on the

grounds of former jeopardy

ARGUMENT


Idaho Code 19-3506 reads as follows; “Effect of dismissal as bar. An order for

the dismissal of the action, as provided in this chapter, is a bar to any other prosecution

for the same offense, if it is a misdemeanor…”

At a trial held on September 6, 2000, in --- County Court Case No. CRM99-6675,

on motion by the Defendant, said case was dismissed by the Court and an Order was

issued, dismissing the action for the same offense for which the Defendant was tried

again in the instant case.

With regards to I.C. 19-3506, it has been decided that “Like the double jeopardy

clauses, this section is intended to protect individuals against repeated charges and trials

for the same offense… a bare charge and dismissal is sufficient to act as a bar.” State v

Badow’s Inc., 729 P2d 433 (Ct: App.1986) See also State v Barter, 80 Idaho 552

(“Offense is a misdemeanor, and dismissal of prosecution for that offense would be bar to

any subsequent prosecution for same offense”).

In State v Badow’s Inc., supra, it was also decided that: “Where the contractor

violated an ordinance which required him to obtain a permit to install non-code electrical

improvements, the failure to obtain a permit was a single-event offense, and because the

charge had previously been dismissed, the city was barred by this section from renewing

the charge with respect to the same installation.”

The Court further stated in Barlow’s that: “In determining whether a subsequent

charge involves the same offense as a previously dismissed charge, the court generally

applies a ‘same evidence or same transaction’ test. The first approach focuses on whether

the same evidence is required to support a conviction for each offense charged. The same

transaction test focuses upon the behavior of the defendant that led to the prosecution.”


At Defendant’s pretrial conference held in this matter on October 13, 2000, the

Court noted that the Defendant: “ had another similar charge that was recently

dismissed…” (Tr. pg. 28, LL. 16-17) At the same hearing STATE’s attorney W---

concurred with the Defendant’s assertion here that the complaints in both cases were the

same – just simply with a different date on them. (Tr. pg. 29, LL. 18-25) The Court also

took notice of the fact that the only difference in the two offenses charged was the use of

different dates in the charging documents. (Tr. pg. 42, LL. 19-20)

At his trial the Defendant motioned the Court to dismiss the case, based in part,

on former jeopardy grounds (Tr. pg. 69, LL. 17 – pg. 74, LL. 5) The Court subsequently

noted that the Defendant’s argument for dismissal was “ well taken ” and “ that the

evidence would be virtually the same in both cases, the same witnesses, the same general

evidence would be involved in both cases “ (Tr. pg. 76, LL. 9-13) but denied the

Defendant’s motion to dismiss on grounds of former jeopardy.

The Defendant made numerous objections at his trial concerning the evidence

from the first trial being used at his trial in this case and asserted that the STATE was

attempting to try him a second time for the same offense. (Tr. pg. 122, LL. 4-11; Tr. pg.

123, LL. 24 – pg. 124, LL. 3 and Tr. pg. 133, LL. 19-23)

In light of the fact that the STATE used the same evidence from the Defendant’s

previously dismissed case in the instant case and in light of the fact that the instant case is

based upon the same behavior of the Defendant that led to his prosecution in the

previously dismissed case, the Court’s dismissal of the first case should have been a

jurisdictional bar to the action in the instant case.


The Defendant further asserts that since the trial complaint in his previously

dismissed case reads: “ That the defendant ---, on or about June, 1999, and thereafter,…”,

that such wording would preclude subsequent prosecution for charges alleging that: “ on

or about the 12th day of August 1999…” The words “ and thereafter “ should create a bar

to the prosecution in the instant case since the 12th day of August, 1999, would be

included in the “ thereafter “ wording of the trial complaint in the previously dismissed

case.

The trial Court concurred with this assertion and reasoning by the Defendant

when, at his sentencing hearing, it stated that: “ the way the amended complaint was

worded charging Mr. --- with a violation of this code and ordinance on the 12th day of

August, 1999, and thereafter; that the State would not be able to file additional criminal

charges for any days after August 12, 1999, because the jury found him guilty of this as a

total. And although the statute does seem to indicate that charges can be filed for each

day of a violation, with the way that charge has been worded – in my opinion I don’t

think that other charges can be filed after that for this particular structure. “ (Tr. pg. 266,

LL. 9-19)

ISSUE NO. 2

Defendant asserts on appeal that his right to due process was violated when the

trial court in this case ruled on post trial motions filed in his previous case which were

scheduled to be heard at a later date. Said motions concerned the release of exhibits and

evidence that were presented in his previously dismissed case which the STATE intended

on presenting in the instant case. The Defendant further asserts that said violation of the

Defendant’s right to due process was prejudicial to the Defendant’s case.


ARGUMENT

On October 10, 2000, the STATE filed with the Court: “MOTION & ORDER

TO RELEASE EXHIBITS” in Case No. CRM 99-6675 and on October 10, 2000, the

Defendant filed: “OBJECTION TO PLAINTIFF’S MOTION TO RELEASE

EXHIBITS”.

At a jury status call hearing held in this matter on November 13, 2000, with the

Honorable Judge B--- W--- presiding, the Court was notified by STATE’s attorney W---

that there was a hearing scheduled on STATE’s “ MOTION TO RELEASE EXHIBITS “

in the previously dismissed case. (Tr. pg. 42, LL. 20-21) At that time also, the STATE’s

attorney stated to the Court that without the evidence from the first case, it didn’t believe

it would have “ as good of a case “ and also that the STATE would not proceed to trial

without the evidence from the first case. (Tr. pg. 43, LL. 10-12)

The Court was also notified by the Defendant that he had objected to the STATE’s

motion to have the exhibits released from the first case.(Tr. pg. 43, LL. 25 – pg. 44, LL.

1) The next day there was filed into this record an Order releasing said exhibits and

subsequently said exhibits were presented as evidence against the Defendant at his trial.

The Defendant, at his trial, objected on several occasions to the evidence from the first

case being entered into evidence by the STATE.(Tr. pg. 122, LL. 4-11; Tr. pg. 123, LL.

24 – pg. 124, LL. 3 and Tr. pg 133, LL. 19-23)

The Defendant contends here that he had a fundamental right to have an

opportunity to be heard on the motions that were properly noticed and before the Court in

the first case. In Holden v. Hardy, 169 U.S. 366, 389 the Court held that; “ the necessity

of due notice and an opportunity for being heard is described as among the ‘ immutable


principles of justice which inhere in the very idea of free government…’” See also

Powell v. Alabama, 287 U.S. 45 at 68.

The Defendant further contends that it was improper for the Court in this case to

take up and rule on motions that were noticed for hearing in another case and not

properly noticed and before the Court in the instant case.

ISSUE NO. 3

The Defendant asserts on appeal that the trial court committed error prejudicial

to the Defendant and his case when it refused to give a requested jury instruction

concerning the statutory farm exemption to the building permit requirement.

ARGUMENT

At the Defendants trial in this matter the Defendant requested that the Court give

to the jury an instruction regarding the statutory farm exemption to the building permit

requirement found in I.C. 39-4103. (Tr. pg. 242, LL. 24-pg. 243, LL. 4) The trial court

denied the Defendant’s request and stated on the record that its reason for doing so was

that; “the state code is not covering farms but that does not prohibit the County from

regulating those…” (Tr. pg. 243, LL. 5-7) The court further reasoned and stated that; “ If

you don’t get a building [permit] for a structure on a farm the State will not come in and

cite you for a violation because they have exempted it. But if the County ordinance

covers that, then [the] County can come in and cite you for a violation of the County

ordinance which has been provided to the Court in which [it] does not exempt farms. “

Idaho Code 39-4103 reads as follows;


“ Scope – Exemptions. – (1) The provisions of this chapter shall apply to all

buildings and construction within the state of Idaho, except as otherwise provided in this

chapter.

Idaho Code 39-4103 (4) states that; “ Farms, as defined in section 39-4105 (17),

Idaho Code shall be exempt from the provisions of this chapter…” Idaho Code 39-4105

(17) defines farms as: “ An agricultural unit of (5) acres or more.”

The amended complaint in this matter alleges a violation of I.C. 39-4111, 39-

4105 and 39-4109 and therefore, the Defendant asserts that the exemptions to the

building permit requirement found in I.C. 39-4105 would be applicable.

The Defendant respectfully disagrees with the trial court’s opinion (Tr. pg. 243,

LL. 5-18) that a county ordinance can supercede and conflict with an existing state law.

The Idaho State Constitution states that: “ Any county or incorporated city or

town may make and enforce, within its limits, all such local police, sanitary and other

regulations as are not in conflict with its charter or with the general laws. “ Article XII,

Section 2, Idaho State Constitution. This has been upheld numerous times by the Idaho

Supreme Court. Cf. In re Ridenbaugh, 5 Idaho 371, 375 and State v. Musser, 67 Idaho

214, 219. The --- County Code cannot be stretched beyond the legislative intent in

creating and enacting the Idaho Building Code Advisory Act or in its adoption of the

Uniform Building Code. The courts have often said that the state of the law in Idaho is

the Idaho Code. It has also been held that: “ A municipal corporation possesses only such

power as the state confers upon it…”

N--- B---, who is the --- County Building Official, testified, at the trial of the

Defendant, that the farm exemption listed in I.C. 39-4103(17) does not apply to anyone


who lives in --- County. (Tr. pg. 210, LL. 23 – pg. 211, LL. 1) and further testified that

the county ordinance in question is more “ restive [restrictive?] than the State Code”.

(Tr. pg 211, LL. 3-4) The aforementioned --- County Building Official further testified

that the County passed a law [ordinance] that nullified the statutory exemption listed in

the Idaho State Code! (Tr. pg. 211, LL. 20 – pg. 212, LL. 1)

The Defendant contends that such is not the case. The Defendant further asserts that, in

light of the fact that evidence was presented at his trial that he was allegedly constructing

a single family home on an agricultural unit of (5) acres or more (Tr. pg. 218, LL. 12-15

and Tr. pg. 106, LL. 18-23), he was entitled to have the Court give to the jury an

instruction regarding the statutory farm exemption. The Defendant further contends that it

was prejudicial error for the trial court to conclude that he could not claim the statutory

exemption and not allow the requested jury instruction to be given to the jury at his trial.

ISSUE NO. 4

The Defendant asserts on appeal that he cannot be required

by law to contract with the political subdivision of the STATE OF IDAHO

known as---County to have a public inspection of his private dwelling

located in ---, Idaho, and that any law that would require him to do so

would be unconstitutional and in violation of his rights pursuant to the

Fourth Amendment to the Federal Constitution as well as his property

rights .

ARGUMENT


COUNTY - A POLICTICAL SUBDIVISION OF THE STATE

Counties are created for the convenience of state governments and have only the implied power to do acts necessary to enable them to exercise their express power or to accomplish the object for which they are created, and in the absence of clearly expressed terms it will not be inferred that the legislature has delegated to the county powers to do that which supercede general laws or render them unnecessary:” State v Vantage Bridge Co. 236 P. 280, 134 Wash. 568. “The County cannot operate in fields prescribed by organic law.” So. Dak. Employer’s Protection Assn. v. Poage, 272 N.W. 806, 809, 65 S.D. 198. Therefore, counties are restrained from actions relating to private rights which are vested with constitutional protection unless clearly injurious to the public rights. Counties are a branch of the Executive Department of Government and are created solely to aid in the administration of state affairs, but regulated by legislature. Pursuant to the doctrine of Separation of Powers, not even a single individual within one department may assume the powers or duties of another department of government. Art 2 Sec. 1 State Constitution. Therefore, neither a county or a city governing board may initiate and enact “law”, nor may they enforce law. “A county is a quasi corporation and a governmental agency of the state, with no independent sovereignty, and possesses only such powers as are expressly given or necessarily implied in statutes constitutionally enacted.” Jefferson County ex rel Grauman v Jefferson County Fiscal Court, 118, S.W> 2d 181, 184, 274 Ky. 91.

Any ordinance enacted by a County governing board to be a law in the strict

sense of the word must be backed by a statute, otherwise its jurisdiction extends only to

those deemed to be within the corporation. Then, as a corporate by law, the ordinance

has the force of law where appropriate. While the county’s jurisdiction may extend from

border to border for comprehensive zoning, it does not necessarily extend to every

property or person within its borders. If it were otherwise, it would be gross deprivation


of all rights and would render all laws and both the Federal and State Constitutions

invalid. “An agency of government is not the government or a department or an officer

of it.” U.S. ex rel Salzman v Salant & Salant, K.C., N.Y., 41 F Supp. 196, 197.

“Government does not exist in a personal sense, or as an entity in any primary sense, for the purpose of acquiring, protecting and enjoying property. It exists primarily for the protection of the people in their individual rights, and holds property not primarily for the enjoyment of property accumulations, but as an incident to the purpose for which it exists-that of serving the people and protecting them in their rights.” Curley v U.S., 130 R. 1,8, 64 C.C.A. 369.

The state’s “creatures” are “corporations”, which term also extends to individuals in corporate capacity. This subject is thoroughly defined by the U.S> Supreme Court in the case of Hale v Henkel, 201 U.S. 43.

Thus a “county” is established as a state agency and its primary function is aiding

the state in state affairs; an act which cannot exceed the limited jurisdiction of the agent.

PRINCIPLE and AGENTThe right of an agent to act is termed his authority or power. In some instances

the authority or power must be exercised in the name of the principle, and the act done

for his benefit alone. The principle is one who being competent to do an act for his own

benefit or on his own account, confides it to another person to do for him.” Bouvier’s

1914 Law Dict., p. 2687.

ORDINANCES“Ordinances are not law, they are corporate by-laws regulating those within the

corporate jurisdiction.” Bouvier’s 1914 legal dictionary defines “ordinance” as follows:

Municipal ordinances are laws passed by the governing body of a municipal corporation for the regulation of the affairs of the corporation. The technically more correct term “by laws” is in common and approved use. The main feature of “ordinances” is that they are local, as distinguished from state laws. They are not, in a constitutional sense, public laws, but mere rules or domestic regulations devoid in many respects of the characteristics of public or general laws.

Ordinance is the generic term for acts of council effecting the affairs of

corporations.

1 Pol. Co. Ct. R. 405, 407.

A municipal ordinance not passed under legislative authority is not a law of the

state within the meaning of the constitutional prohibition against state laws impairing the

obligation of contracts (Hamilton G.L. & Co. v Hamilton, 146 U.S. 258), but if properly

adopted under a power granted by the state legislature, it is to be regarded as an act of

the state within the 14th Amendment (No. Amer. C.S. Co. v Chicago, 211 U.S. 306).


“And it is well settled that municipal ordinances and the actions in office of municipal

officials constitute state actions and are within the prohibitions of the Fourteenth

Amendment.” McCoy v Providence Journal Co. 190 F. 2d, 760, 764 (1951).

The method of creating law in Idaho is prescribed under Article 3, § 15 of the

State Constitution, which proclaims: “No law shall be passed except by bill”. It cannot

be construed that an ordinance enacted by the County’s governing board is a law of the

state unless clearly backed by statutory law. The state’s constitution prescribed a

precise methodology for creating law, thus any “bill”, even to be considered law, must be

created by the legislature in the exact manner as prescribed; not by mere resolution or

order of either the county or city governing board…. or by a planning association.

The legislative grant of authority, the Local Planning Act, set forth the policies for

the State pursuant to Federal law. The applicability of this legislative act was delineated

under 67-6528 as binding on all agencies/agents of government; it did not address the

people. The reason being that all law is based on status and it would be impossible for

our legislature to know exactly who is in corporate capacity and who is not.

POLICE POWERConsistent with the power of Congress to regulate commerce among the states,

the States possess, because they have never surrendered, the power to protect public

health, public morals, and public safety, by any legislation appropriate to that end which

does not encroach upon rights guaranteed by the national Constitution, nor come in

conflict with acts of Congress passed in pursuance of that instrument (Mo. K. & T. R. Co.

V Haber, 169 U.S. 613, 628) but the police power of the state cannot draw within its

jurisdiction subject matter which has been confided to Congress exclusively by the

Constitution (Henderson v New York 92 U.S. 259, 271; 1876)

In its broadest sense, as sometimes defined, it (police power) includes all

legislation and almost every function of civil government (Barier v Connolly, 113 U.S. 27,

31). Definitions of the police power must, however, be taken subject to the condition that

the State cannot, in its exercise, for any purpose whatever, encroach upon the powers of

the general government, or rights granted or secured by the Supreme Law of the Land.

In Railroad Co. V Husen, 95 U.W. 465, Mr. Justice Strong, delivering the opinion of the

court, said that “the police power of a state cannot obstruct foreign commerce or

interstate commerce beyond the necessity for its exercise; and under color of it, objects


not within its scope cannot be secured at the expense of the protection afforded by the

Federal Constitution.”

Each exertion of the police power has the support of presumption that it is an

exercise in the interest of the public, and that there are facts justifying its specific

exercise. The presumption attaches alike to municipal ordinances, statutes and orders

of administrative bodies. However, the police power of a State has its limits and must

stop when it encounters the prohibitions of the Federal Constitution. (Eubank Richmond,

226 U.S. 137; 1912; Southern R. Co. V Virginia, 290 U.S. 190-1933; Panhandle Eastern

Pipe Line Co. V State Hwy. Comm. 294 U.S. 613, 625 - 1935).

LIMITATION ON STATE AGENCIESThe prohibitions of the 14th Amendment apply to all the instrumentalities of the

State, to its legislative, executive, and judicial authorities and therefore, whoever, by

virtue of public position under a state government, deprives another of any rights

protected by that amendment against depravation by the State, violates the

constitutional inhibition and as he acts in the name of and for the State, and is clothed

with the State’s power, his act is that of the State. This must be so or, as we have often

said, the constitutional prohibition has no meaning, and the state has clothed one of its

agents with the power to annul or evade it. Ex parte Virginia, 100 U.S. 339, 346, 347 -

1881. Neal v Delaware, 103 U.S. 370 - 1881; Yick Wo v Hopkins, 118 U.S. 356 - 1886;

Gibson v Mississippi, 162 U.S. 565 - 1896.

It must be considered also that none of the constitutional Amendments

prohibit any citizen from entering into a contract with the State, the County or the City

and waiving their rights thereby. “None of the amendments prohibit private individuals

from entering into contracts respecting the control and disposition of their own

property...” Corrigan v Buckley, 271 U.S. 323, 330 - 1926.

Thus, when a “private” man, non-franchised by his government, asks

“permission” to do that which he already has a natural right to do, he waives his rights

and volunteers into a regulated enterprise of government; he is, therefore, subject to the

jurisdiction of the government agency.

Regulations sought to be imposed by laws or ordinances must have real and

substantial bearing upon the public health, public safety, public works or general public

welfare, and a belief, no matter how fervently or widely entertained, that municipal

authorities can assert some sort of communal control over privately owned lands, is at


variance with the fundamental nature of private ownership and in derogation of the

protection of private ownership. Cooley Const. Lum. 7th Ed. P. 245; Truax v Corrigan

257 U.S. 336, 66 L. Ed. 264, 27 A.L.R. 375; 42 Sup. Ct. Rep. 124.

However, no municipality or county has the right under guise of “police power” to

pass any ordinance that is unreasonable or difficult of interpretation; ordinances must be

reasonable and fair in their application and bear a substantial relation to the public

health, safety, morals, or general welfare. “The rule has long been recognized by this

court that constitutional guarantees of private rights are subject to the qualification that

they may be cut down by governmental agencies acting under the power of the state.

The power to interfere by zoning regulations with general property rights, by restricting

the kind and use of property, is not unlimited, and such restrictions cannot be imposed if

they do not bear some substantial relation to the public health, safety, morals or public

welfare.” Kinner v City of Joliet, 411 Ill.,289, 103 N.E. 2d 473 – 1952.

However, any classification permanently restricting the enjoyment of property to

such an extent that it cannot be utilized for any reasonable purpose goes beyond

regulations and constitutes a “taking” without due process. The Constitutional right of

the owner of property to make legitimate use of his lands may not be curtailed by

unreasonable restrictions under the guise of the police power. Thus, the owner will not

be required to sacrifice his rights absent substantial need for restrictions in the interest of

public health, morals, safety, and welfare. Where zoning restrictions exceed the bounds

of necessity for public welfare it must be stricken as an unconstitutional invasion of

property rights. Zoning Laws and Practices – Yokely; sec. 3-11, p. 54-55, notes 42-46.

The courts are not bound by mere forms, nor are they to be misled by mere pretenses.

They are at liberty-indeed, are under solemn duty-to look at the substance of things,

whenever they enter upon the inquiry whether the legislature has transcended to have

been enacted to protect public health, the public morals, or the public safety, has no real

or substantial relation to those objects, or is a palatable invasion of rights secured by the

fundamental law, it is the duty of the courts to so adjudge and thereby give effect to the

Constitution. Mugler v Kansas, 123 U.S. 623, S.Ct. 273, 31 L.Ed. 205 – 1887.

It has been held that the exercise of police power under an ordinance may be

proper in a general sense but may be unreasonable and confiscatory as applied to

particular property.


White v City of Twin Falls, 81 Idaho 176, 338 P.2d 778 – 1959; Cole-Collister Fire

Protection Dist. V City of Boise, 93 Idaho 558, 468 P.2d, 290 – 1970 (46 other citings).

See also Zoning Laws & Practices – Yokely, p. 69, Sec. 3-15, citing nine cases.

While your local zoning department and/or governing board may tell you one

thing, the Courts will generally tell you quite another story altogether. The total extent of

“zoning” is limited to Health, Safety, Morals or General Welfare and this must be proved

beyond any doubt. Discrimination in zoning is usually thought of in terms of the injustice

to the landowner, but in reality, it is also a wrong done to the community’s land use

program. Udall v Hass, 21 N.Y. 2d 463, 288 N.Y.S. 2d, 888, 235 N.E. 2d, 897 – 1968.

“Generally speaking, it is within the rights of the Municipal legislative authority, acting

under the “general welfare” clause, to determine what ordinances are required to protect

and secure public health, comfort and safety, but it may not, under guise of such power,

enact ordinances which are unreasonable, or discriminatory, or an invasion of

constitutional rights.” McKelley v City of Murfeeboro, 162 Tenn. 304, 36 S.W> 2d, 99-

1931, citing Std. Oil Co. v City of Kearney, 106 Neb. 558, 184 N.W. 109 – 1921.

Does the regulation involve a constitutional right? This is a very lengthy subject

today, because most property owners are deeply involved in corporate capacity or have

waived their rights by entering into a contract with government. If one has an equitable

interest in a mortgage on a “marketable” title (excluding the object of title”, does he have

a property right” Does he have personal rights? Rights founded in law or statutes are

mere legal rights. Inalienable rights (God’s Law) are not granted by government through

codes or statutes and can only inhere in and exist between moral beings. Government

was instituted for the protection of the people, and it was instituted by the people acting

in their sovereign capacity. Thus, “rights” precede government or the establishment of

states. Both legal rights and inalienable rights are protected by the Constitution of the

United States. “In exercising the police power of a state, there are no limits except the

restrictions outlined in the written constitution.” McLeon v Arkansas, 211 U.S. 539;

Jacobson v Massachusetts, 197, U.S. 11; 1 Thayer Constitutional Law, 720.

There is a monstrous difference in restricting or regulating the ability of a person

to exercise a right than in prohibiting and commanding actions, or the lack of, and

punishing by penalty, fines, and imprisonment, persons who fail to comply when the

action committed by the person has not, in fact, caused any loss or damage of another’s

life, liberty or property as opposed to those classes of crimes where another’s life, liberty

or property has been damaged or lost. What happens when local government itself


causes a loss of property to either an individual or the general welfare; are the

administrative officials responsible held liable? Will any agent or agency of government

take an action to correct the wrong done? Will the Governor who is obliged by his office

to uphold the laws of the State (Art. 4, Sec. 5, State Const.) intercede and bring a

disciplinary action against the officials who committed the wrong? NO! Thus we see a

very unreasonable and arbitrary situation wherein the laws are usurped and have

become discriminatory.

Regulation must be reasonable. Is a property owner to be denied the right to

remodel his home or garage, for instance, unless it is done to the specifications

determined by zoning or building ordinances? What if the specifications exceed the

property owner’s financial ability, particularly when what he desires to do is within his

financial ability and will produce pleasant appearance which is not injurious to the

general welfare, or which may even exceed the minimal standards of the building code?

The right of the landowner to use his land is an important incident of ownership.

It is an interest highly regarded by the community, carefully protected by constitutional

limitations under the 5th and 14th Amendments, and vigorously affirmed by the courts.”

The Standard State Zoning Enabling Act endeavors “to provide, so far as it is practical to

forsee, that proper zoning can be undertaken under it, but without injustice and without

violating property rights.”

In effect, the County is but another state agency; the purpose of its creation and

existence is to administer the state’s police power (zoning) within its prescribed

boundary. It is charged with the duty of administering this power over the states

“creatures” within prescribed limitations and only within its jurisdiction where appropriate.

LOCAL PLANNING ACTTitle 67, Chapter 65, State of Idaho

The authority and power granted to counties of Idaho for implementing local

zoning is to be found under Title 67, Chapter 65, entitled “LOCAL PLANNING ACT”.

This Act was enacted by the state legislature in full compliance with the Federal

mandate known as the Standard State Zoning Enabling Act which was first passed by

the Department of Commerce in 1923.

PURPOSE67-6502. The purpose of this act shall be to promote the health, safety, and


general welfare of the people of the state of Idaho.

Wherein the state acts in the name of the people, the state itself is but an “agent”

of the people. This Act prescribes the specific outline for implementation. The terms

“health” and “safety” as used in counter-distinction to general health and general safety

relate only to the individual (see Anderson on Zoning); the people as a whole are

covered under “general welfare”.

“No state shall make or enforce any laws which shall abridge the privileges and

immunities of citizens of the United States.” Slaughter House Cases (1873), 16 Wallace

36.

Nor can a “county” or “municipal corporation” abridge the privileges and

immunities of citizens. The county is constitutionally created, in Idaho, for the sole

purpose of ;aiding the state in the administration of its affairs. While this Act is the

enabling act, counties must administer the state’s authority with full recognition of all

superior laws. The state constitution authorizes local police regulations under Article 12,

§ 2.

ARTICLE XIICORPORATION, MUNICIPAL

Local Police Regulations Authorized. Any county or incorporated city or town

may make and enforce within its limits, all such local police, sanitary and other

regulations as are not in conflict with its character or with general laws.

The constitution recognizes the county as being a quasi corporate agency (as if corporate) of the state; the legislature, in compliance with the Federal mandate, prescribed the creation of a “comprehensive plan” upon which zoning is predicated. It is this “plan” which, in effect, is the county’s character. If the “plan” is improperly created and enacted, it effects the county’s capabilities as well. “A county has authority to enact a subdivision ordinance under the provisions of this article (Art. 12) subject to the following restrictions: (1) the ordinance or regulation must be confined to the limits of the governing body enacting same, (2) it must not be in conflict with other general laws of the state, and (3) it must not be an


unreasonable or arbitrary enactment.” State v Clark (1965), 88Idaho 365, 399 P.2d, 955.

The very authority claimed for initiating police regulations also restricts the county

to the intent and purpose specifically provided for by general laws concerning “limits” on

this Agency of the state. Limits of the governing body (1)are those set by the enabling

act, Title 67, Chapter 65, entitled LOCAL PLANNING ACT, and by the prohibitions of

both the Federal and State Constitutions.

Conflict with other general laws (2) includes a failure, on the part of

administrative personnel, to recognize valid statutes and openly violate statutory law,

whether unintentional or intentional. In reference to conflict with general laws, it was

held to include laws setting out procedural requirements for such police regulations (see

Citizens for Better Gov’t. v County of Valley, 95 Idaho 320-1973).

Unreasonable or arbitrary (3) zoning enactments are, therefore, prohibited by this

article. What is “unreasonable” is a matter for the courts to decide; “arbitrary” covers a

disputed issue, between a property owner and an administrator, wherein valid, proper

data is presented in opposition to an ordinance; particularly wherein the administrator,

for whatever reason arbitrarily refuses to consider the property owner’s argument. In the

case of conflict that which is paramount necessarily controls that which is subordinate

(Northern P.R. Co. v N.D., ex rel Lawyer 250 J.S. 135).

Unfortunately all too many officials, administrators, and staff personnel fail or

refuse to recognize the Constitution of the United States as the law of the land; yet these

same people will quote the state constitution as one of their authorities. And when they

do, they must also recognize other state constitutional mandate; such as:

STATE INSEPARABLE PART OF UNION. The State of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land. Art. 1, Sec. 3; State Constitution.The State Constitution also authorizes supreme power to the

people under Article 1, § 2 which states: “Political Power Inherent In The People. All Political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the


right to alter, reform or abolish the same whenever they may deem it necessary.

The FIRST requirement placed on local government under Title 67 is:

67-6502 (a) To protect property rights and enhance property values.

This was considered the most important aspect of our scheme of government and laws that both the Federal and State legislation, along with the constitution set this condition FIRST in the purpose of local zoning. It extends to every agency and every agent of government and they shall recognize this statute as their primary duty and function as a public servant. All ordinances must respect private property and property rights. It is important that the people of the state understand exactly what “property” is and what the incidents of property ownership are.

OWN. The word “own” as applied to land, means all the lands

claimed and possessed by the party termed “owner”. The right to own

and manage property is a natural (unalienable) right. 73 C.J.S.,Sec. 13, p. 181.Ownership of property has been defined as the right by which a

thing belongs to an individual to the exclusion of all others (see Scandinavia Belting Co. v Asbestos, etc. Works, N.Y. 255, 257 F. 937, 169 C.C. A. 87m certiorari denied, 39 S. Ct. 494, 250 U.S. 644, 63 L. Ed. 1186; 50 C.J.S., p. 778, Note 74).

“Perfect ownership is the right to use and dispose of one’s property in the most unlimited manner, and nothing prevents an owner from dismembering his property and from disposing of each separate dismemberment as he pleases.” (Amerada Petroleum Corp v Rees, 196 So. 558, 195 La. 359). “Perfect ownership gives the right to use,


to enjoy, and to dispose of one’s property in the most unlimited manner, and these rights, termed the ‘usus’ ‘fructus’, and ‘abuses’, must be united in the same person to constitute perfect ownership. (Wilson v Aetna Ins. Co. La. App., 161 So. 650, 652).

The essence of the ownership of a thing is that aid which organized society will, through the courts as its agents, give one individual, to the exclusion of all others, to take or keep possession of it. Property belongs to a person as long as he has the right thereto and the power by law to enforce and protect that right, but ownership is not a privilege conferred by government but a right which government is organized to protect (50 C.J.S., P. 400, Note 34(d).

“The right of property is that sole and despotic dominion which one man claims and exercises over the external things of the world in total exclusion of the right of any other individualism the universe. It consists in the free use, enjoyment, and disposal of all a person’s acquisitions, without any control or diminution save only the law of the land.” 1 Bl. Comm., 138; 2 Bl. Comm., 2, 15; Great Northern Ry Co. v Washington Elect. Co., 197 Wash. 627, 86 P. 2d. 208, 217.

In strict legal sense the word “Property” signifies valuable rights or interests protected by law, and in modern legal sense “property” includes practically all valuable rights, the term being indicative and descriptive of every possible interest which a person can have in any and everything that is subject of ownership by man. Too, the term comprises all rights which are incident to the use, enjoyment and disposition of tangible things; the bare possession, with color of right, of anything of value; the right to be protected in one’s possession of a thing or in one’s privileges belonging to him as an individual, or secured to him as a member of the commonwealth; and including the right to contest judicially any invasion of that which one possesses. (C.J.S., P.140; five other citings).


“Since “property” in its strict legal sense does not mean the physical object itself, but rather certain rights over the physical object, it is necessary to look beyond the physical object for the true definition of the word and thus in terms of right, interest, dominion, domination, “property” is defined as meaning exclusive right to possess, enjoy, and dispose of the land….the Federal Constitution. Peabody v. U.S., 43 S. Ct. Cl. 5, 16; Texas Co. v Hauptman, C.C.A. Cal. 91 F.2d, 449, 451.

Now that there is a definition of “property” set forth, we can consider what is a “property right”. In Garden Court Appt’s v Hartnett, Super, 65A.2d, 231,232 (re: 73 C.J.S., Sec. 2-3, p. 154) it states: “for violation of which (property right) recourse may be had to courts.” This is not without limitation, however, since NO landowner has a right in property which would allow him to injury or impair the rights possessed by his neighbors or the community. This is defined in Common Law as well as under the Police Power of the State.

“AND THE RIGHT OF THE LANDOWNER TO BUILD ON HIS PROPERTY ACCORDING TO HIS OWN DESIRES, FREE OF UNCONSTITUTIONAL OR ARBITRARY RESTRAINT IS A PROPERTY RIGHT.” Bryan v Kennett, supra, Ind.; Adams v Merrill, 85 N.E. 114; 87 N.E. 36, 45 Ind. App. 315; 50 C.J.S., P. 740, note 85; Garden Court Appt’s v Hartnett, Supra; 73 C.J.S., Sec 2-3, p. 154.

Exactly what are “Property Rights” is defined in a multitude of legal reference books, including the Federal Code (5 U.S.C.). For complete information, please review “Words & Phrases”, “Corpus Juris Secundum”, “5 U.S.C.”, “Anderson on Zoning”, “Zoning Laws & Practices”, “Basic Property Laws”, etc. These publications are available to everyone at the Law Library. Here are but a few definitions:

The right to dispose of vested interest in property by will is a property right. Warren v Sears, 22 N.E. 2d, 406, 408, 127 A.L.R. 595, 303 Mass. 578.


Right of owner to fence land is a property right which cannot be unreasonably interfered with. Williams v City of Hudson, 262, N.W> 607, 608, 219 Wisc. 119.

Privilege of property owner to use his own property in his own way and for his own purpose is both a liberty and property right, but subject always to exercise of police power. Hanifin Corp. v City of Berwin, Ill. 115, N.E. 2d, 315, 319, 1 Ill. 2d, 28.

The right to have one’s property in its original condition not changed by the well-meaning but wrongful conduct of others is a property right, the invasion of which gives right to damages. Brompton Realty Co. v City of N.Y., 91 N.Y.S., 2d, 780, 783, 196 Misc. 218.

Certain private rights arising from ownership of property contiguous to street or highway, which are not common to the public in general, constitute property or property rights of which an abutter cannot be lawfully deprived. Kelbro Inc. v Myrick, 30 A. 2d, 527, 529, 113 Vt. 64.

The “Property Right” secured by constitutional provision, that no citizen shall be deprived of property except ;by due process of law of the land, consists not merely in the ownership and possession of property, but also in the unrestricted right of the use, enjoyment and disposal thereof, subject only to the police power. Veron’s Ann. St. Const. Art. 1, Sec. 19; Houston & No. Tex. Motor Freight Lines v Johnson, Tex. Civ. App. 159 S.W. 2d, 905, 907.Right of property owner to use property for his own advantage and enjoyment is a “liberty” as well as a “property right” within the meaning of Constitution. N.T. Hegeman Co. v Mayor & Council of Borough of River Edge, 69A. 2d, 767, 769, 6 J.J. Super. 495.A zoning regulation which limits or restricts an owner of property in his freedom of use deprives such owner without compensation to the extent of such owner without compensation, to the extent of such


restriction of his liberty, and also a property right within the meaning of the Constitution. N.T. Hegeman Co. v Mayor & Council of Borough of River Edge, supra.The right to the benefit of a contract is a “property right” which cannot be destroyed without entitling the injured party to damages. Shannor v Gaar, 6 N.W. 2d, 304, 307; 233 Iowa, 38.

These are but a few of the multitude of “property rights” defined by our courts. “Protection of life, liberty and property rests with the states; the 14th Amendment furnishes guarantees against encroachment by the states on those fundamental rights which belong to citizenship and which state governments were created to secure.” In re: Kemmler, 130 U.S. 436; 10 S.Ct. 930 , citing U.S. v Cruickshank, 92 U.S. 542 and Slaughter House Cases, 16 Wall (U.S.) 36.

Any ordinance, order or resolution that prohibits the property owner from use and enjoyment of ownership, and diminishes the value of same must be considered to be in conflict with general laws of the state. In particular 67-6502(a) and (c):

In determining whether a zoning ordinance is unreasonable and confiscatory to the extent that it constitutes an unlawful invasion of property rights, there must be considered the character of the neighborhood, the zoning classification,and the use of nearby properties, the extent of which property values are diminished by the particular restrictions involved, and the gain to the public compared with the hardship imposed on the individual owner. LaSalle Nat’l Bk, v City of Park Ridge, 223 Ill. 2d, 239, 177 N.E. 2d, 837 – 1961; Rams-Head Co. v City of Des Plains, 9 Ill. 2d, 326, 127 N.E. 2d, 259-1956l 1st Nat’l Bk & Trust Co o Evanston v County of Cook, 15 Ill. 2d, 26, 153 N.E. 2d, 545-1958; Wilson v Village of Deerfield, 55 Ill. App 2d, 314, 204 N.E. 2d, 780-1965; 1st Nat’l Bk of Skokie, 3 Ill. App. 201, 278, N.E. 2d, 496-1971.

In addition to 67-6502(a) there are listed ten more subjects which define the “purpose” of the Local Planning Act. Each and


every subject so listed is a condition upon which the City's and the County’s Comprehensive Plan must be developed, and to which all ordinances must adhere. The remaining ten subjects are:

67-6502(b) To ensure that adequate public facilities and services are provided to the people at reasonable costs.67-6502(c) To ensure that the economy of the state and localities is protected and enhanced.67-6502(d) To ensure that important environmental features of the state are protected and enhanced.67-6502(e) To encourage the protection of prime agricultural, forestry and mining lands for production of food, fiber and minerals.67-6502(f) To encourage urban and urban-type development within incorporated cities.67-6502(g) To avoid undue concentration of population and over-crowding of land.67-6502(h) To ensure that development on land is commensurate with the physical characteristics of the land.67-6502(I) To protect life and property in areas subject to natural hazards and disasters.67-6502(j) To protect fish, wildlife and recreation sources.67-6502(k) To avoid undue water and air pollution.

These eleven subjects are considered of prime importance to the state and its people and are the measure of the police power of the state. Each of these subjects can be used to determine the validity and/or applicability of zoning ordinances. The state has set these conditions as the "duty" and "limits" of its agent.

The governing board, whether it be the County Commissioners or the City Council, is endowed not only with the power and authority of this act, but is limited by the prohibitions as well. Every City and County shall exercise the powers conferred by this chapter (67-6504). Of particular importance is 67-6528.

67-6528 Applicability of ordinances. “The State of Idaho, and all its agencies, boards, institutions departments, and local special purpose districts shall comply with all plans and


ordinances adopted under this chapter unless otherwise provided by law.All “government entities: must adhere to the terms and conditions prescribed by our Legislature, and may not use the authority granted by this act to impose regulations and restrictions which are arbitrary or confiscatory (State v Clark supra) or which are in excess of those provisions expressly set forth b the legislature. It is to be noted that the applicability of this act was not imposed upon the people of the State of Idaho. The reason for this omission is that only those individuals subject to corporate regulation would be involved and our legislature had no way to distinguish those people from others. Other statutes automatically exclude non-applicable entitles by directing the applicability to corporate entities in trade, commerce and industry via zoning regulations.

Only the Governing Board may adopt a plan or suggestions as an ordinance, no one else. Therefore, in a contested issue it is only the governing board who may waive the effect of an ordinance upon proper showing by an individual that said ordinance is inapplicable due to his particular situation.

The Primary purpose of a comprehensive plan is to protect others, and the general public from uses of property, which will, if permitted, prove injurious to them. From a purely procedural standpoint, the planning and zoning commission prepares the comprehensive plan and sends its recommendations to the local governing board for adoption. That makes the governing boards responsible for any errors, omissions or unconstitutional procedures and applications, which may be detrimental to either individuals or the general welfare.

COUNTY COMMISSIONERSIdaho Code 67-6502 stating the purpose of the Local Planning

Act is not apparent in the Comprehensive Plan created by the --- County Board of Commissioners; adopted July 28, 1998. No where does the plan address “property rights”, “protection of private


property” or the “enhancement of property values”, nor does it distinguish between private property and public or corporate properties. It does, however, take away property rights.

Assuming for a minute that the --- County Board of Commissioners is a legal entity under the County’s jurisdiction, where does --- County Board of Commissioners get authority to create general law of the state? What specific statute of the state proposes this same criteria? How can an ordinance --- County Board of Commissioners, even though adopted by the county, supercede both the Federal and State Constitution? Where rights secured by the constitution are involved there can be no rule-making legislation which will abrogate them. Miranda v Arizona, 384 U.S. 436.

What if two citizens, one of them the “absolute” owner of a tract of land and the other is one who is desirous of purchasing a small portion thereof, enter into a private contract for sale/purchase? Can the owner legally be detained and/or prevented form selling? Particularly if it cannot be proved to be injurious to the general welfare? Under what law does the owner loose his unalienable right to property? At what point, and how, was the obligations of contract under Article 1, § 10 of the Federal Constitution over-turned? These questions need to be answered by the County if it is to continue to be responsible for deprivation of property and property rights of private individuals.

I contend that---County’s land usage plan (Comp. Plan) as devised by the ---- County Board of Commissioners, is not compatible with paramount law and may even be questionable where general law is concerned. Specific tracts and parcels of land which are within the corporate jurisdiction of the governing board may be regulated beyond the legal definition of the terms used in “ordinances” pursuant to their corporate character (Plan); private property held in “absolute” ownership cannot. Any lot located in a commercial subdivision, or


otherwise, may eventually gain the status of “absolute” ownership and, at which time, the owner may claim this status.

Many restrictions now faced by property owners, which deprive them of property rights, are not necessarily enacted by general law, nor is specific authority granted or even implied which would permit or authorize a county to hold with any ordinances which may be an unconstitutional invasion of private property rights. Courts all across the land have upheld the rule that police power must cease when it encounters organic law. Local government personnel are seldom educated in this respect.

Any governing board which fails to adhere to the limits of the enabling act, as in the case of total delegation of power to --- County Board of Commissioners to create the comprehensive plan in its entirety, may be deemed guilty of “Neglect of Duty” in which general law imposes a $500.00 fine. (31-855).

REGULATE AND RESTRICT“Within a zoning district, the governing board shall, where

appropriate, establish standards to regulate and restrict….” I.C. 67-6511.

Why did the Legislature insert “where appropriate”? If a County had total and complete jurisdiction over ever property and person the term “where appropriate would not have been necessary. This is proof of a restriction on the Counties and Cities wherein their authority is limited to corporate capacity. Were it otherwise it would have been boldly proclaimed so in the code; it does not!

REGULATE. To adjust by rule or method, or established mode; to direct by rule or restriction; to subject to governing principles or law (State v Ream, 16 Neb. 683, 21 N.W> 398). Bouvier’s Law Dict., p. 2860 (1914 ed).


Remember, the Local Planning Act embraces all of the people of the state, not just ---- County (or any other particular county). Ordinances, being defined as corporate by laws address corporate jurisdiction. Therefore, inasmuch as the county is an agency of the state created for the sole purpose of aiding the state in the administration of its affairs, it cannot exceed its prescribed limits. The state does not claim total and absolute jurisdiction over every property and individual, nor can it; neither can its agent, the county, make such an assumption and claim.

The courts have consistently held state actions to include the actions of a state’s governmental subdivisions and its municipal officials. Briscoe v Bank of Kentucky, 36 U.S. (11 Pet) 257, 318-1837.

This authority (67-6511), more than others, is frequently taken out of context and applied to every property and to every property owner within the county’s boundaries. But general law makes the distinction “where appropriate”, and does not grant a broad coverage which is all-encompassing. It must be an accepted fact that our lawmakers understand the meanings of words used, otherwise, the statutes can have no meaning.

“Property Rights” have been established in antiquity and are under the protection of both the Federal Constitution and the State Constitution. When we refer to the term “principles” we understand truths or propositions so clear they cannot be proven or contradicted unless by propositions even clearer (Bouvier’s p. 2706). Thus, under Legislative authority, our Governing Board may “where appropriate”, regulate and restrict height of buildings, yard easements, set backs, etc, among its corporate creatures. We must also consider that our Legislature cannot enact an unconstitutional statute, therefore neither can either the County or the City adopt an ordinance in counter to constitutional prohibitions. To “Regulate and restrict” was never meant to mean impede, deny, restrain, etc., this was NEVER the intent


of the lawmakers. Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. Miranda v Arizona, 384 U.S., 436, p. 481.

When referring to “governing principles” it is to be noted that there are two kinds of principles; one when they are known as axioms or maxims; “no one can transmit rights which he has not”; “the agent follows the principal”, etc. the other class is simply referred to as first principles; they are so clear that they cannot be proved by anterior and more manifest truths, they are universally received; they are so strongly impressed on our minds that we conform ourselves to them what ever may be our avid opinions. A court does not establish, but recognizes principles. The Legislature has firmly set the duty of the governing boards with regard to “regulating and restricting…”

Any plan, or part of a plan, adopted by resolution is only temporary. A “resolution” or “order” is not law, but merely the form in which the legislative body expresses an opinion. Chicago & N.P.R. Co. v City of Chicago, 51 N.E. 596, 598, 174 Ill. 439; Words & Phrases, p. 261.

STANDARDS“STANDARDS” is the big argument in any county or

municipal corporation. Each governing board may develop “standards” (67-6518) for a variety of subjects…. All of which address corporate entity; public use.

PERMITSProbably one of the most important aspects of “zoning” is

the permit-granting process (67-6519). Property owners are led to believe that whenever anyone attempts to do anything whatever with his property he must first apply for a “permit”.


Private property (particularly in absolute ownership) and private men are only subject to control when it is proven beyond any reasonable doubt that their endeavors will be injurious to their neighbors or to the general welfare. If the private man in absolute ownership is required to apply for a permit it must be considered that he may be denied, thus, there is a deprivation of property rights which is actionable under Civil Rights Laws in Federal Court. It is not necessary to prove a physical taking of property, but only such substantial interference with the owner’s use of it, to amount to a taking… Todd v U.S. (1961) 155 Ct. CL111.

The permit process has three primary purposes. First, to induce the property owner, by intimidation, to voluntarily waive his rights by signing a contract which places him within the jurisdiction of the governing board. Second, to assure compliance with ordinances. And third, as notice to the assessor’s office of new construction or alterations so that property taxes may be adjusted and/or applied accordingly.

All law is based upon status; however, it is not the practice of your local government to consider this aspect of law. If you build or remodel without a permit, your structure may be “red tagged” (a notice to cease immediately). In the past, permits have been revoked; structures ordered destroyed. Pursuant to court decisions or law, a permit once issued, may not be revoked… except… issuance upon fraud or issuance by one whom is not legally authorized to issue a permit.

Where the landowner complies with existing statutes and ordinances, he is entitled to whatever permit may be necessary in the exercise of his right to improve his property. The right to build would be utterly lacking in substance if its exercise could be prevented by the arbitrary and capricious refusal of a permit or if the granting or denial of the permit rested solely in the discretion of some official or board.


Dade County v Jason, 278 So. 2d 311 (Fla. App. 1973); Barnes v Austin, 199 S.E. 2d 906 (Ga. 1973); Ready to Pour, Inc v McCoy, 511 P. 2d 792 (Idaho 1973).

An ordinance will be held invalid where it vests a broad discretion in local officials in granting or refusing a permit (many citings). The courts have generally held, in a long line of decisions, that where a permit has been granted by an officer or board authorized to issue it and the permitee has acted in reliance thereon and incurred substantial expense, the right to continue construction under the permit becomes a vested right which the municipality or county has no right to violate by revocation, recall or otherwise (3 ½ pages of citings). The Court of Civil Appeals of Texas held that the city of Snyder, Texas was not entitled to an injunction against the construction of a building, even though the owner had not obtained the required permit and the municipal authorities were authorized by statute to take action in such cases, where building fully complied with the requirements of the law and a substantial part of the work has been done. City of Snyder, Texas v Cogdell, 342 S.W. 2d 201 (Texas Civ. App. 1960).

The “permit” is a license and it must be uniform upon every class of subject within the jurisdiction or within the particular zone, it cannot be arbitrary. Corporate creatures of government can be regulated; private men, in exercising their inalienable right to property, cannot. A permit implies consent given or leave granted (Loosey v Osner, 4 Bosw. N.Y., 391); it has been defined to mean; “to allow by not prohibiting” (Com. V Curtis, 9 Allen, Mass., 266). It is “permission granted by competent authority”, therefore, when applying for a permit we state that we are incompetent and ask to be controlled and watched over.

Statutory law (67-6519) requires that all applications for a permit shall be submitted to the Zoning Commission for its


recommendations, however, this is only for applications for permits required and authorized under this chapter. Any permit granted or denied by a commission, shall state: (a) the ordinance or standards used in evaluating the application; (b) the reason for approval or denial by a commission; and (c) the action, if any, that the applicant could take to obtain a permit.

The important part of this statute states as follows: “An applicant denied a permit or aggrieved by a decision may within sixty days after all remedies have been exhausted under local ordinances, seek judicial review under the provisions provided by section 67-6519 (b) through (g) and 67-5216 of the Idaho Code.

COMMISSION HEARING BOARDThe Code stipulates, under 67-6522 that “appropriate permits as

defined by local ordinance shall be forwarded directly to the county assessor”. That is one of the purposes of the permit process. It makes it easier for the County Assessor to assess property. (Re: Title 63 for duties of Assessor). When applying for a building permit the Building Department evaluates the cost and bases the permit fee upon a percentage of that evaluation… you have nothing to say about it. But the courts have had plenty to say about it. It is only the owner of property who may properly set the value, no one else. When a government agent, whether trained in real estate appraisal or not, sets the value, it must be deemed arbitrary. When the permit fee is based upon the cost of the structure to be built, it must be considered to be “revenue raising” this illegal.

Regulatory fees for building permits must be reasonable in amount and fair in proportion to the cost of regulating and inspecting buildings or they will not be sustained. Since the police power may not be used as a subterfuge to enact and enforce what is, in reality, a revenue-raising ordinance, the general cost of government may not be


defrayed under guise of reimbursement for the special services required by the regulation and control of new buildings. Daniels v Borough of Point Pleasant, 23 N.J. 357-1957; Merrelli v City of St. Clair Shores, 96 N.W. 2d 144-Mich. 1959; Univ Custom Homes, Inc. v Township of Redford, 96 N.W. 2d 151-Mich., 1959; M.W> Watson v City of Topeka, 400 P. 2d 689, Kan., 1965; Bon Air Estates, Inc. v Village of Suffern, 302 N.Y.S. 304, 1969; Weber Basin Home Bldr’s Assn. V Roy City, 487 P. 2d 866 Utah, 1971; holding increase in bldg. Permit cost from $12 to $112 to be constitutionally impermissible where obvious purpose was to raise revenue for general fund of city. Colonial Oaks West, Inc. v Township of East Brunswick, 61 N.J. 560, 1972.

The increasing expenses of a municipal government caused by the normal growth of a city are said to constitute the public problems of a community, and it has been held that expenses incurred solving such problems should be defrayed by the general municipal revenues that are available and not by excess fees exacted for the wiring and plumbing of new houses, particularly where such fees are out of proportion to the cost of housing regulation to such extent that they assume the form of taxation. Merrelli v City of St. Clair Shores, 96 N.W. 2d 144, Mich, 1959; Beachlawn Bldg. Corp v. City of St. Clair Shores, 376 Mich. 261, 1965, holding builder entitled to recover fees paid for permits under ordinance held invalid. Weber Basin Home Bldgs. Assn. V Roy City, 487 P. 2d 866, Utah, 1971.

Under the Local Planning Act the Governing Board may provide by ordinance for the enforcement of this chapter (67-6527) or any ordinance made pursuant to this chapter; the same being declared a misdemeanor. No one in the executive department may enforce “law” or set penalties arbitrarily. Any ordinance not made pursuant to this Act (Title 67, Chapter 65) are non-applicable and non-enforceable.

In effect, this Enabling Act is more controlling on government entities than on the citizenry, and well it should be. The grant of power


and authority of the act was delegated to government entities, but within prescribed limitations against deprivation of private property rights. It clearly establishes that it is “corporate creatures” who are subject to its terms and conditions, not private people with proper status. In other words, the Legislature, pursuant to Federal Law, granted to Counties and Municipalities the power to enact ordinances for the purpose of controlling its “creatures” which are within the jurisdiction of the Governing Boards; and no more.

Please remember that “within the jurisdiction” of the Governing Board zoning ordinances have the same force as a general law duly enacted by the state legislature. All laws and ordinances are deemed to be lawful and constitutional and it is only the specific application of a law or ordinance upon an individual which may be deemed unlawful or unconstitutional as it applies to that particular individual.

DUE PROCESSEarlier I defined the term “ordinance” as being a “corporate by-

law”; now I will show you the definition of “by-law”:BY-LAW Rules and ordinances made by a corporation for its own government. The office of a by-law is to regulate the conduct and define the duties of its members towards the corporation and among themselves.

The power to make bylaws is usually conferred by express terms of the charter creating the corporation. When not expressly granted, it is given by implication and it is incident to the very existence of the corporation. When there is an express grant limited to certain cases and for certain purposes, the corporate power of the legislation is conferred to the subjects specified, all others being excluded by implication.

By-laws, when contrary to the constitution or laws of the state or United States are void whether the charter authorizes


the making of such by-laws or not; because no legislature can grant power larger than that which it possesses.

But a by-law, void as against strangers or non-assenting members, may be as good as a contract against assenting members. It has been held that third parties dealing with corporations are not bound to take notice of by-laws. Fay v Noble, 12 Crush (Mass) 1. Bouvier’s 914 Law Dict., p. 418.The subject matter herein being presented concerns the

application of “by-laws” of a quasi corporation, the county, upon “strangers and non-assenting members”. Zoning may legally only address the use of land, it cannot address ownership; therefore, in all too many instances, zoning may be viewed as being subversive of constitutional protection of private property over which they have no authority until one’s endeavors are proven injurious to the general welfare, then the police power may be employed.

However, not all government administrators are anti-property or anti-rights; many make a real effort at proper administration and they are to be commended for their efforts. This subject matter does not address those administrators, but rather the over-inflated egos, the superior attitude, and gross arbitrary actions of bad administration; abuse of power under color of law and/or color of office. “County government is neither special privilege nor special immunity.” McDonald v Droust, 11 Idaho 14, 81 P. 60, 69 L.R.A. 220.

And the United States Supreme Court has frequently ruled:Failing to establish criteria other than the uncontrolled discretion of a public official has constantly been hold by the U.S. Supreme Court to be a denial of due process.Hague v C.I.O., 307 U.S. 469Schneider v State, 308 U.S. 147, 160Cantwell v Conn. 310 U.S. 296, 306, 307Saia v N.Y. 334, U.S. 558Kunz v N.Y. 340 U.S. 290


The 16th American Jurisprudence, 2d at 547 has held the term “due process”, as used in the Federal Constitution, to be the exact equivalent of the phrase “Law of the Land” as used in the Magna Charta. The Federal Constitution is the Law of the Land. “Constitutional principles may not be violated for administrative expedience.” State of Maryland v Environmental Protection Agency, C.D. 4 (1975), 530 F. 2d 215, certiorari granted 96 S. CT. 2224, 426 U.S. 904, 48 L.Ed. 809.

The 14th Amendment recognizes citizenship of the United States as distance from the States; forbids the making or enforcement by any state of any laws abridging the privileges and immunities of the United States; and secures all private people against any state action which is either deprivation of life, liberty or property without due process or denial of equal protection of the law. (Bouvier’s). Failure to recognize prohibitions of a state constitution, while enforcing the authorizations granted by that same instrument is a denial of equal protection of the law. Government’s purpose is the protection of the people.

No state shall make or enforce any laws which shall abridge the privileges and immunities of citizens of the United States. Slaughter House Cases, 16 Wallace 36.

And it is well settled that municipal ordinances and the actions in office of municipal officials constitute state action and are within the prohibitions of the Fourteenth Amendment. McCoy v Providence Journal Co. 190 F. 2d, 760, 764 (1951).

Acts of a state’s political subdivisions ;and its administrative agencies, serving the public purpose and supported by public funds, are equally within the constitutional requirements. Henry v Greenville Airport Commission. 279 F.2d 751, 753 (1960).

The Courts have constantly held state actions to include the actions of a state’s governmental subdivisions and its municipal officials. Brisco v Bank of Ky. 36 U.S. (11 Pet) 257, 318.


A state can only act through its agents; and it would be absurd to say, that any act was not done by a state which was done by its authorized agents. Chicago, Burlington & Quincy R.R. Co. v Chicago, 166 U.S. 226, 233.

As you can see the actions of both county and municipal agents are the actions of the state and they are subject to 14th Amendment prohibitions. All agencies and agents of government are bound by the Federal and State Constitution, Federal Code and decisions of both the J.S. and the State Supreme Courts.

Keep in mind that there is no immunity for any government agent; if any judicial action is necessary, it may be directed toward specific individuals and not necessarily against either the city, county or state. This is pursuant to acts of congress and high court decisions.

Owen v City of Independence, Mo., et al., 445 U.S. 622-1980HELD: a municipality has no immunity from liability under sec. 1983 (42 U.S.C.) flowing from its constitutional violations and may not assert the good faith of its officers as a defense to such liability. Pp. 635-658.

(a) By its terms, sec. 1983 “creates a species of tort liability that on its face admits of no immunities.” Imbler v Pachtman, 424 U.S. 409, 417. Its language is absolute and unqualified, and no mention is made of any privileges, immunities, or defenses that may be asserted. Rather, the statute imposes liability upon “every person” (held in Monell v N.Y.C. Dept of Soc. Serv., 436 U.S. 658, to encompass municipal corporations) who under color of state law or custom, “subjects, or causes to be subjected, any citizen of the United States…. To the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” And this expansive sweep of sec. 1983’s language is confirmed by legislative history. Pp. 635-636.

In defining the differences between the corporate enfranchised person and the non-enfranchised private man, I refer you to the celebrated case of Hale v Henkel, 201 U.S. 43 of which the following is an excerpt:

“…. we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and papers for an examination at the suit of the State. The individual may stand


upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no duty to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights.”

“When we consider the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.” Those were the words of the Court in Yick Wo v Hopkins, 118 U.S. 356, p. 370. This is an old case, but never overturned, which addresses the subject of municipal ordinances (there were no county ordinances in those days, but that doesn’t alter the Court’s opinion). Here is an excerpt:

The court holding the opinion that “there may be a case in which an ordinance passed under grants of power like those we have cited, is so clearly unreasonable, so arbitrary, oppressive, or partial, as to raise the presumption that the legislature never intended to confer the power to pass it, and to justify the courts in interfering and setting it aside as a plain abusive of authority.”

“But it comments to the unrestrained will of a single public officer the power to notify… (portions concerning the particular ordinance which is the subject of this court case omitted)… But if he [public officer} should not chooses to do this, but only to act in particular cases, there is nothing in the ordinance to guide or control his actions. It lays down no rules by which its impartial execution can be secured or partiality and oppression prevented… and, when we remember that this action or n0n-action may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper influences and motives ease of


concealment and difficult to be detected or exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of being brought under cover of such power, for that becomes apparent to every one who gives to the subject a moments consideration. In fact, an ordinance which clothes a single individual with such power hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void.”

“…. Whatever may have been the intent of the ordinance as adopted, they are applied by the public authorities charged with their administration, and thus representing the state itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of the equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the 14th Amendment of the United States.”

“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibitions of the Constitution.”

“This principle of interpretation has been sanctioned by this Court in Henderson v Mayor of N.Y., 92 U.S. 259; Chy Lung v Freeman, 92 U.S. 275; Ex parte Virginia, 100 U.S. 339; Neal v Delaware, 103 U.S. 370; and Soon Hing v Crowley, 113 U.S. 703.”

Yick Wo v Hopking, supra, p. 372-4.

STATE CONSTITUTION OF IDAHOArticle 12, § 2

Local Police Regulations AuthorizedThe state constitution is NOT a grant of power, but a limitation of

the state/agency/agents power (L.S.C. v Christensen, 95 P. 523; Nat. Mines v IC, P. 202) also, that absent such limitations said power is unlimited. The very existence of a state constitution, therefore, is an admission, as a matter of law, that said power is LIMITED! Also, that the state constitution is not self-executing and that the state must operate through agencies and particularly through agents to effect the said limitations least said limitations lie dormant and become


meaningless. (Dawns v Bidwell, 182 U.S. 244 at 279; 1 Kent Com. 232).

Therefore it must be demanded that agents of government perform properly, not only in exercising the limited power of the state, but especially in observing end enforcing the said limitations. “It is a fundamental rule of constitutional law that a State Constitution is an instrument of limitation and not of grant, that all powers are retained to the state not expressly withheld, and the decisions in this state are bottomed squarely upon that rule.” Diefendorf v Gallet, 51 Idaho 619; 10 P. 2d, 303 (1932).

Every state constitution is a limitation of powers of that state and it is the paramount “LAW” of every state. Wherein local and state administrators only considered such articles as this as being an authority and fail to recognize other articles which place restrictions on them, it must be considered to be a denial of equal protection of the laws as they may apply to a private man.

The Court, in State v Clark, supra, imposed three restrictions upon the enactment of police regulations: (1) they are confined to the limits of the governing body, (2) they must not conflict with general law and, (3) they must not be unreasonable or arbitrary. What is “unreasonable” has been determined by judicial review to be a matter of court decision in each particular case.

I find that the term “arbitrary” is a very strong prohibition upon all government.

ARBITRARY Means in an “arbitrary” manner, as fixed or done capriciously or qt pleasure. Without adequate determining principle; not founded in the nature of things; not done or acting according to reason or judgment, depending on the will alone; absolutely in power; capriciously; tyrannical, despotic; Cornell v Swisher Counter, Tex. Civ. App.; 78 S.W. 2d 1072, 1074. Without fair, solid, and substantial cause; that is without cause based upon


the law, U.S. v Lotempio, D.C.N.Y. 58 F. 2d, 358, 359; not governed by any fixed rules or standards.

Ordinarily “arbitrary” is synonymous with bad faith or failure to exercise honest judgment and an arbitrary act would be one performed without adequate determination of principle and one not founded in nature of things. Huey v Davis, Tex. Civ. App. 556 S.W. 2d 8a60, 865.

Blacks (5th Ed.) Law Dict., p 96LAW ARTIBRARY Opposed to immutable, a law not founded in

the nature of things, but imposed by the mere will of the legislature. Blacks 5th Ed.In this case cited, State v Clark, the Court also referred to State v

Musser, 67 Idaho 214, which in turn quoted eight other cases, all of which ruled that under Art. 12. Sec. 2, “counties, cities and towns had FULL POWER in affairs of local government.” State v Clark did NOT so rule. I believe that State v Clark was on-point and these other cases were off-point.

It is very easy for a zoning staff member to discourage property owners in their endeavors, simply by delaying them and/or intimidating them. Even when a property owner gives valid documentation in his own behalf that cannot be refuted by the county, they will totally ignore it and will not answer it; they will continue as though you never presented it in your own defense. This is, nevertheless, a denial of “due process” at the administrative level.

In any lawless assault upon the rights of property owners, zoning staff members will point to their ordinances, stating “their interpretation”, showing where YOU CAN’T DO THIS OR THAT under misdemeanor penalty of as much as $300.00 per day. This may be construed as “extortion” except that extortion laws in Idaho, along with both malfeasance and misfeasance of office, have been repealed. The staff member may even point to ordinance 3.13 wherein it defines


the term “shall” as meaning mandatory. That is correct, it does. However, it cannot be held as applicable to a private man. The high court has ruled that such terms as “shall” and “must” may be a violation of constitutional rights under various circumstances and therefore:

“Words like may, must, shall, etc. are constantly used in statutes without intending that they be taken literally." Fields v U.S. 27 App. D.C. 433.Where these terms are used in application towards governmental

agencies and agents, they mean exactly what they say, because THEY are MEMBERS of the corporation.

In any contested issue the property owner has an absolute right to be heard in his own defense. This is called “due process” and is a vital part of all law and administrative procedures. The state legislature provided for a hearing process under 67-6519 in addressing the "permit process" and the courts will recognize this as a proper enactment and application of due process.

The “hearing process” as granted by the county does not afford a “proper” opportunity to be heard. Yes, a person may get to go before the hearing commission in a public meeting… BUT! I contend that he cannot be successful if the staff has decided against him.

I see this as a serious problem, because if all law from the 14th Amendment right down to local ordinances provide for an opportunity to be heard as part of the “due process” of law and equal protection of the law, and ordinances, in raising revenues, make the laws applicable only upon payment of a set fee (set by the county), then invalidate and overrule the due process clause, because it is made contingent on financial responsibility.

What if one is indigent and such a fee would work a hardship? Is he to be denied his lawful rights? Is he to be discriminated against? Possibly if this particular “fee” was abolished the staff wouldn’t


constantly be forcing property owners and others, into this hearing p5rocess so readily. NOTE: The commission hearing examiners are prohibited by 67-6520 from hearing any issue except subdivision and variance permits and district boundary changes. If the County has the authority to raise revenue and set the amount of various fees, and make the due process of law applicable only upon payment of said fees, then it is also conceivable that they will continue to raise those fees, as inflation rises, until all forms of due process are made financially prohibitive and finally abolished completely in Idaho.

“But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that the famous language of the Massachusetts Bill of Rights, the government of the Commonwealth may be a government of laws and not of men. For the very idea that one may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”

Yick Wo v Hopkins, supra., p. 370.

In the classic case of Mugler v Kansas, 123 U.S. 623 (1887) which addresses the differences between taking of property without compensation and depriving a person of his property without due process, it was determined:

“Undoubtedly the State, when providing, by legislation, for the protection of the public health, the public morals, or the public safety, is subject to paramount authority of the Constitution of the United States, and may not violate rights secured or guaranteed by that instrument, or interfere with the execution of the powers confided to the general government.”

Henderson v Mayor of N.Y., 92 U.S. 259Railroad Co. v Husen, 95 U.S. 465New Orleans Gas Co. v Louisiana Light Co. 115 U.S. 650Walling v Michigan, 116 U.S. 446Yick Wo v Hopkins, 118 U.S> 356


Morgan’s Steamship Co. v Louisiana Bd. of Health 118 U.S. 455

That there is a limit to the exercise of the police power in invading business and property in any given case, and that that limit is found in what is necessary and reasonable for guarding against the evil which injures or threatens the public welfare, and that the legislature cannot, under the guise or pretext of a police regulation, go beyond that limit, and strike down innocent occupations and invade private property, the destruction and invasion of which are not reasonable necessary to accomplish the needed relief or the needed reform, are propositions sustained by abundant authority.

There is a great difference between “taking property” without compensation, and “depriving a person of his property without due process of law”, in many points of view there can be no doubt that “taking a man’s property” is “depriving him of it”. To justify the State in interposing it s authority in behalf of the public, the court in Lawton v Steel, 152 U.S. 133, ruled:

“It must appear, first that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual or unnecessary restrictions upon lawful occupations. In other words its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts. It is true that the police power of the State is least limitable of its powers, but even it may not transcend the prohibitions of the Constitution of the United States.” Shelvin-Carpenter Co. v Minn., 218 U.S.,p. 70.

While an ordinance is, in effect, a law of the state, where applicable and within the jurisdiction of the governing board, such ordinance, or regulations, are subject to judicial scrutiny upon fundamental grounds, yet a considerable latitude of discretion


must be accorded to the law-making power; and so long as the regulation (ordinance) in question is not shown to be clearly unreasonable and arbitrary, and operates uniformly upon all persons similarly situated in the particular district, it cannot be judicially declared that there is a deprivation of property without due process of law, or denial of equal protection of the laws, within the meaning of the 14th Amendment.Now let’s look at the subject of “taking” of property. Eminent

Domain proceedings, pursuant to Art. 1, Sec. 14 of the Idaho State Constitution, proclaims:

Private property may be taken for public use, but not until after a just compensation, to be ascertained in a manner prescribed by law, shall be paid therefore.

In other words, an evaluation (fair market value) must be made of the damage which will accrue to the owner of the property taken, and compensation paid before proceeding with condemnation. This constitutes a legal “taking of private property for public use with due process and just compensation”.

To constitute “taking” under this amendment (5th), it is not necessary that property be absolutely taken in the narrow sense of that word to come within the provisions of constitutional provisions, and it is sufficient if action by government involves direct interference with disturbance of property rights. R.J. Widen Co. v U.S., (1966) 357 F.2d 988, 174 Ct. Cl. 1020.

Governmental actions short of acquisition of title or occupancy may amount to a “taking” if its effects are so complete as to deprive the owner of all or most of his interests in subject matter. So. Counties Gas Co. of Cal. V U.S. (1958) 157 F. Supp. 934, 141 Ct. Cl. 28 certiorari denied, 79 S. Ct. 23; 358 U.S. 815, 3L.Ed. 2158.

5 U.S.C. - 14th Amendment, Sec. 1


A law imposing restrictions upon the use of property must have some reasonable relation to the promotion of public safety, public health, public morals, general welfare, or prosperity of public, and if it has no such relation it constitutes an arbitrary exertion of governmental powers and violates this clause (5th Amend). Vandervort v Sisters of Mercy of Cincinnati (1952) 117 N.E. 2d 51; 97 Ohio App. 153.

The provision of the organic law that no person shall be deprived of life, liberty or property without due process of law nor denied the equal protection of the laws are not intended to hamper the states in the discretionary exercise of any of their appropriate sovereign governmental powers unless substantial private rights are arbitrarily invaded by illegal or palpably unjust, hostile and oppressive exactions, burdens, discriminations or deprivations. State ex rel. Hosack v Yocum, 1939, 186 So. 448, 136 Fla. 246, 121 A.L.R. 270, See also, State v. Quigg, Fla. 1927, 114 So. 859.

A statute or ordinance to be a valid exercise of the police power must not be arbitrary or unreasonable or unduly oppressive, since the Legislature may not under guise of protecting public interests arbitrarily interfere with fundamental rights of citizens guaranteed by Constitution. People, on complaint of Mullaly, v Banks 1938, 6 N.Y.C. 2d 41, 168 Misc. 515.

Administrative agent’s exercise of police power affecting personal or property rights is subject to judicial superintendency if such exercise be confiscatory and violative of property rights, and such exercise, if it constitutes an arbitrary, discriminatory, or unreasonable interference with such rights is void as being in violation of due process required by this clause. (5th Amend.) Garden State Farms v Armstrong, 1954, 105 A.2d 884; 31 J.J. Super. 61.

Zoning ordinance which limits and restricts use and enjoyment of property in matters having no real and substantial relation to peace, good order, safety, health, morals, comfort, or general welfare, though authorized by statute, is prohibited by constitutional safeguards as to deprivation as fully as if title were proposed to be taken. In Re: Ceresini, 1936, 189 A. 443; 8 W.W. Harr. 134.


Statute or ordinance which confers power on some property owners to control property rights of others and which provide no standard by which such power is to be exercised is invalid. State ex rel. Foster v City of Minneapolis, 1959, 97 N.W. 2d 273; 255 Minn. 249.

Unless general welfare is served by change of existing zoning ordinances, property owners should be held secure in their rights of use in accordance with classification at time of acquisition and holding. Id.

Also, please consider further….

A partial taking is compensable. Tee-Hit-Ton Indians v U.S. (1955); 75 S. Ct. 313, 348; U.S. 965.

The Private land owner is entitled to damages accruing to property not taken by reason of severance and the construction of the improvement. 13 Judicial District, 91 Idaho 237; 419 P. 2d 679 (1966).

Any arbitrary action by local government which is ultra vires or where the property owner has submitted proper documentation of his claim and has proven by facts of law, and has challenged the opinion of the county administrator and where, particularly, no counter argument, verified by rationale, point and authority has been presented, which has resulted in a deprivation of property must be considered a “taking” in every sense of the word pursuant to established and accepted court decisions.

The number of cases verifying the rights of the property owner under the police power of the state are virtually unlimited, both in U.S. Courts and in our own State Courts. The problems that property owners encounter with the local administrative personnel may best be summed up as follows:

Though property may be regulated to a certain extent under the police power, if the regulation goes too far it will be recognized as a “taking” for which compensation must be paid. Casey v Stevant, D.C. Pa. 1958, 160 F. Supp. 404, (reversed on other grounds); 79 S. Ct. 1034; 360 U.S. 219.


And also….

When absolute rights of property have been acquired and vested by authority of law, no subsequent legislation can divest such rights. Fletcher v Peck, 6 Cranch 87. Carondelet Canal & Nav. Co. v Louisiana, 233 U.S. 362.

JURISDICTIONDoes the county have the right to tell you what to do, and do

you have the right as a “stranger or non-assenting member” to be free from corporate regulation (by-laws)? Providing, of course, that your activities and endeavors are not detrimental to the health, safety, morals, or general welfare of the public.

Once jurisdiction is challenged it must be proven. Hagers v Lavine, 415 U.S. 533, note 3.

No sanctions can be imposed absent proof of jurisdiction. Santdard v Olsen, 74 S. Ct. 768.

Where jurisdiction is an issue of entirety the mere imposition of jurisdiction is an assailable order in itself, and must be pleased at the administrative level. Jurisdiction, once challenged, cannot be assumed and must be decided.

Main v Thiboutot, 100 S. Ct. 2502.

The law provides that where “jurisdiction” is squarely challenged all administrative and judicial enforcement of a supposed law must come to an end in the nature of abatement and must be proven to exist -–by production and pleading of jurisdictional facts – on the administrative record (5 U.S.C., 101-559, 701-705 govern the issue). The law provides that absent such proof of jurisdiction there is no subject matter to enforce. This principle is well set forth (above) in the dissenting opinion in Main v Thiboutot, supra (1980).

When questions of jurisdiction have been passed on or in prior decisions sub silentio this court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us. Hagens v Lavine, supra, note 5, see also Morrell


v Dept. of Social Service of City of N.Y., 436 U.S. 663; U.S. v More, 3 Cr. 159, 172.

Equity can have jurisdiction to enforce law (public or private) whether obtained privately in contract or publicly in a court of law… only if that law remains properly within the narrow confines set out by (a) due process – notice and opportunity to be heard, (b) the U.S. Constitution, expressed and implied, (c) the substantive common law, (d) law merchant, (e) due process of law making (f) substantive due process, (g) state constitution and (h) state statutes as interpreted by the state supreme court (state common law governs the federal environment, 28 U.S.C. 1652, 2072, par 2, Erie RR v Tompkins), among others. It was further held:

There will no longer be judicial protection for your mere good faith assertion of jurisdiction, and that such assertions of jurisdiction are abolished.

Owen v City of Independence, Mo. (1980) – HELD445 U.S. 622, 100 S. Ct. 1398.

Every property owner should by now understand that ALL ZONING IS CONTRACTURAL. Whenever you ask permission you will be told to “till out an application, pay us our fee, and be sure to sign it!” What do you do? You sign a contract; you acquiesce into the corporate jurisdiction; you request to be regulated and restricted, as a proper corporate member, by the corporate by-laws.

The private citizen may not be compelled, particularly under threat and duress, to enter into a contract wherein he waives his rights. Should the property owner declare that he will not sign the application permit and be told that; “if you don’t sign, we cannot answer your questions, issue you a permit… etc.” This would be “threat and duress” and I would recommend that in such a situation the property owner sign said document, but add the words: “signed under threat, duress, and implied coercion.”


Any act not performed voluntarily is not your act. Signing in this manner takes away the voluntary aspect of the signing of said contract; thus there is no contract, nor is jurisdiction granted. The agent has his “signature”, though worthless, and the property owner must have his permit. Everybody should be happy.

CONCLUSION

--- County Building Department has represented Ordinance #221A of --- County, Idaho

(Building Code Ordinance) as law, and as such, has enforced it by the use of police

powers that they claim have been granted them by the Uniform Building Code (UBC)

and codes A-I, § 2.0.

The Uniform Building Code is an international set of minimal building standards

that has been adopted by ---i County for the protection of the health, safety, and general

welfare of the people of the state of Idaho.

Ordinances ARE NOT LAWS of the state of Idaho. Such ordinances are by-laws for the corporate agent of the principle, and as such, they are void as against strangers and non-assenting members. --- County Building Department has used non-statutory police powers in an attempt to force me, a private man, into contractual arrangements with the county The use of such police power absent a proof of endangerment to the general welfare of the people of the state of Idaho, violates my constitutional rights that are protected by both federal and state Constitutions. The arbitrary and capricious use of such power is nothing more nor less than an abuse of discretion to extort unreasonable fees from me by the use of force, and ignores completely the statutory purposes and restrictions set forth by legislative law.

The local Planning Act, Title 67, Chapter 65, state of Idaho,

clearly defines the purposes of the code, and does not or cannot


authorize the county as an agent, to pass ordinances that exceed the

statutory limits therein. The Planning Act expressly prohibits the use

of regulations and restrictions that are arbitrary and confiscatory.

The STATE has not disclosed, at any time, a section of the Public Laws of

Idaho wherein the Legislature has authorized public inspections of private dwellings

owned by the people on the Land of Idaho. In the event that no such public law exists, the

STATE is not operating under color of law. The STATE must therefore be operating

under fiction of law for profit.

The issues raised here are whether the conduct of the Defendant, allegedly

building his own home on private property, is a protected liberty and does the STATE, as

a municipal corporation, have the authority to convert the inherent liberty of building a

home on private property into a privilege so that the STATE: can demand a performance

contract; can enter without a warrant; can enforce a public inspection of a private

dwelling; can demand that said privatehome be constructed to the minimum commercial

requirements of the Uniform Building Code, and demand a fee for asserting the liberty.

Defendant asserts that the STATE’s actions here raises issues under the Constitution,

Laws and treaties of the united States of America.

Respectfully submitted this _____ day of June, 2001.


CERTIFICATE OF SERVICE

I hereby certify that on the ____ day of June, 2001, a true and correct copy of the foregoing APPELLANT’S BRIEF was delivered by the method indicated below to the following address;

___ U.S. Mail ___ FAX___ Hand Delivered

--- County Prosecuting Attorney’s Office------------------------, Idaho 838-- ___________________________ ----------------------


dale edward reynolds · web viewthose were the words of the court in yick wo v hopkins, 118 u.s....

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