REFERENCES - CITATIONS - CODE SECTIONS

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CONTRACT INFORMATION

Inalienable and Property Rights,
California Code Sections and Court Citations
Recession of Contract
Conditions, Performance and Breach

Inalienable and Property Rights

“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness”.
Declaration of Independence, July 4, 1776

“All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring,  possessing and protecting property; and pursuing and obtaining safety and happiness”.
Article 1, §1, Constitution of the State of California , 1849

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”.
Article IX, Constitution for the United States of America

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.
Article X, Constitution for the United States of America

"The ultimate authority ... resides in the people alone."
James Madison, author of the Bill of Rights, in Federalist Paper No. 46.

"You have rights atecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe."
 John Adams, Second President of the United States

"We the people are the rightful masters of Congress and the courts, not to overthrow the Constitution, but to overthrow men who pervert the Constitution."
Abraham Lincoln

“Citizens under our Constitution and laws mean free inhabitants…Free citizens and freeman is endowed with certain rights and privileges, to enjoy which no written law or statute is required.  These are fundamental or natural rights, recognized among all free people...that the right to…accept employment as a laborer for hire as a fundamental right is inherent in every free citizen, and is indisputable…”
United States v. Morris,  125 F. Rep.  325, 331

"The government of the United States is a foreign corporation with respect to a state."
In re Merriam, 36 N. E. 505, 141 N. Y.  479, affirmed 16 S. Ct. 1073, 163 U. S. 625, 41 L.Ed. 287.

"Income means gains/profit from property severed from capitol, however invested or employed.  Income is not a wage or compensation from any type of labor"
Stapler v. United States, 21 F.Supp 737 at 739

“…every  man has a natural right to the fruits of his own labor, as generally admitted; and no other person can rightfully deprive him of those fruits, and appropriate them against his will…”
The Antelope, 23 U.S. 66, 120

“The right to labor and to its protection from unlawful interference is a constitutional as well as common-law right.  Every man has a natural right to the fruits of his own industry”.
48 American Jurisprudence,  pg. 80

“Among these unalienable rights, as proclaimed in the Declaration of Independence is the right of men to pursue their happiness, by which is meant, the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others… It has been well said that, the property which every man has is his own labor, as it is the original foundation of all other property so it is the most sacred and inviolable… to hinder his employing…in what manner he thinks proper, without injury to his neighbor, is a plain violation of the most sacred property”.
Butchers’ Union v. Crescent City Co., 111 U.S. 746, at 756-757

“There can be no sanction or penalty imposed upon one because of the exercise of a constitutional  right”.
Sherar v. Cullen,  481 F. 945

“…The term [liberty]…denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life…The established doctrine is that this liberty may not be interfered with, under the guise of protecting public interest, by legislative action…”.
Meyer v. Nebraska,  262 U.S. 390, 399, 400

“A right common in every citizen such as the right to own property or to engage in business of a character not requiring regulation cannot, however, be taxed as a special franchise by first prohibiting its exercise and then permitting its enjoyment upon the payment of a certain sum of money”.
Stevens v. State, 2 Ark., 291.  35 Am. Dec.  72,
Spring Valley Water Works v. Barber, 99 Cal. 36,   33 Pac. 735,  21 L.R.A. 416

“…The right to enjoy property without unlawful deprivation, is a personal right, whether the property in question is a welfare check, a home, or a savings account.  In fact a fundamental interdependence exists between the person’s right to liberty and the personal right in property.  Neither could have meaning without the other”.
Lynch v. Household Finance Corp.,  405 U.S. 538

Quod Consat Clare Non Debet Verificari
What is clearly apparent need not be proved.

Jus Publicum
Public law, or the law relating to the Constitution and functions of government and its officers and the administration of criminal justice. Also public ownership, or the paramount or sovereign territorial right or title of the state or government.

Jus Singulare
In the civil law.  A peculiar or individual rule, differing from the Jus Commune or Common Rule of right, and established for some special reason

Nemo Potest Plus Juris Ad Alium Transferre Quam Ispe Habet
No one can transfer a greater right to another than he himself has

CALIFORNIA CIVIL CODE §2881. Lien, how created
 A lien is created :

 1. By contract of the parties; or
 2. By operation of law

Lien.  A charge or security or incumbrance upon property.  Theatre Realty Co. v. Aronberg-Fried Co., C.C.A.Mo., 85 F.2d 383, 388, McCarty v. Robinson, 222 Ala. 287,  131 So. 895, 896; Springer v. J.R. Clark Co., C.C.A. Minn., 138 F.2d 722, 726.  Preferred or privileged claims given by statute or by admiralty law.  American Legion Post No. 279  v. Barrett, 371 Ill. 78, 20 N.E. 2d 45, 50; Marshall v. People of State of new York, 254 U.S. 380, 41 S.Ct. 143, 145, 65 L.Ed. 315.  BLACK’S LAW DICTIONARY, FOURTH EDITION, p. 1072

License Fee or Tax.  Charge imposed by sovereign for a privilege.  Pennsylvania Liquor Control Board  v. Publicker Commercial Alcohol Co., 347 Pa. 555, 32 A.2d 914, 917.  BLACK’S LAW DICTIONARY, FOURTH EDITION, p. 1069

CALIFORNIA CODE OF CIVIL PROCEDURE §25.  Civil action arise out of obligations or injuries
 A civil action arises out of:

    1. An obligation;
    2. An injury.

    1. Contract; or,
    2. Operation of law.

The code sections above HAVE TO be bounced off the two below, because the two below are the benchmark for the drafting of the ones above, they comport.

All men are by nature free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty: acquiring, possessing and protecting property: and pursuing and obtaining safety and happiness.”
Constitution of the State of California, Article 1, Section 1.

“The people shall have the right freely to assemble together, to consult for the common good, to instruct their representatives, and to petition the legislature for the redress of grievances”
Constitution of the State of California, Article 1, Section 10.  (Notice the absence of the tag-line, “as long as they pay the DMV first”.  The right mentioned at this section is not a government granted privilege, like what the DMV grants.)(SEE TRAVEL CITES ABOVE AND AT ROOM 5

CALIFORNIA CODE OF CIVIL PROCEDURE, Sec. 1897
The organic law is the constitution of government, and is altogether written.
Other written laws are denominated statutes.  The written law of this State is therefore contained in its Constitution and statutes, and in the Constitution and statutes of the United States.

CALIFORNIA CODE OF CIVIL PROCEDURE, Sec. 1898
Statutes are public or private.  A private statute is one which concerns only certain
designated individuals, and effects only their private rights.  All other statutes are
public, in which are included statutes creating or affecting corporations.

CIVIL CODE
Sections 678-681

678.  The ownership of property is either:

   1. Absolute; or,
   2. Qualified.

679.  The ownership of property is absolute when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleasure, subject only to general laws.

680.  The ownership of property is qualified:

   1. When it is shared with one or more persons;
   2. When the time of enjoyment is deferred or limited;
   3. When the use is restricted.

681.  The ownership of property by a single person is designated as a sole or several ownership.

Now combine what’s written above with what the Legislature declares at the following section:

CALIFORNIA GOVERNMENT CODE

§54950 DECLARATION OF LEGISLATIVE PURPOSE. “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business.  It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.

The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created”.

The Legislature, our servants looking out for our inalienable rights, made some legally accurate declarations based on their interpretation of the Constitution.  Then judges decide if the declarations are constitutional.

CALIFORNIA GOVERNMENT CODE 

§181.  Original and ultimate right to property

The original and ultimate right to all property within the limits of the state is in the people thereof.

CIVIL CODE
SECTIONS 654-663

654.  The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others.  In this Code, the thing of which there may be ownership is called property.

655.  There may be ownership of all inanimate things which are capable of appropriation or of manual delivery; of all domestic animals; of all obligations; of such products of labor or skill as the composition of an author, the good will of a business, trade marks and signs, and of rights created or granted by statute.

657.  Property is either:

   l. Real or immovable; or,
   2. Personal or movable.

658.  Real or immovable property consists of:

   l.    Land;
   2.   That which is affixed to land;
   3.   That which is incidental or appurtenant to land;
   4.   That which is immovable by law; except that for the purposes of sale, emblements,               industrial growing crops and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale, shall be treated as goods and be governed by the provisions of the title of this code regulating the sales of goods.

659.  Land is the material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance, and includes free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted, by law.

663.  Every kind of property that is not real is personal. [Emphasis mine]
 

(Former) CALIFORNIA COMMERCIAL CODE §9109. Classification of Goods: “Consumer goods”;  “Equipment”

Goods are

(1)    “Consumer goods” if they are used or bought for use primarily for personal, family or household purposes; (Your private car, truck, van, motor cycle)
(2)    “Equipment” if they are used or bought for the use primarily in business (including farming or a profession) or by a debtor who is a nonprofit organization or a government subdivision or agency or if the goods are not included in the definitions of inventory, farm products, or consumer goods.

[ (2)  is the classification a motor vehicle falls in, the DMV simply uses the term motor vehicle to describe the “equipment” they regulate, but never the less whatever term they use there is a monetary component re use. Then there is a public interest in how the equipment is used.  For example a bus or cab are motor vehicles and regulatable because the “equipment” is used in a public way unlike you car which you use for private or household purposes.  This isn’t to say you are absolved of responsibility for crashing into someone or something.  The held belief is if the public has an interest in the stuff the public has a say as to how it’s used.  Your private property remains free from public edicts until you do damage to someone or something belonging to someone else.]
 

California Code Comment
By John A. Bohn and Charles J. Williams

Prior California Law

1.  The classification of goods in this section is new statutory law.  The significance of this classification is described in Official Comment 1.

Although goods cannot belong to more than one category at any time, they may change their classification depending upon who holds them and for what reason.  Each classification is mutually exclusive but the four classifications described are intended to include all goods.
Official Comment 2.

Evidence Code §180.  "Personal property" includes money, goods, chattels, things in
action, and evidences of debt.

Evidence Code §185.  "Property" includes both real and personal property.

Evidence Code §637. Ownership of things possessed

The things which a person possesses are presumed to be owned by him.
(Stats. 1965, c. 299,  § 2)

Evidence Code §638.  Ownership of property by person who exercises acts of ownership

A person who exercises acts of ownership over property is presumed to be the owner of it.
(Stats. 1965, c. 299,  § 2)

CALIFORNIA GOVERNMENT CODE §4.  No action or proceeding commenced before this code takes effect, and no right accrued, is affected by this code, but all procedure thereafter taken therein shall conform to the provisions of this code so far as possible.

This language is also found in the Vehicle Code.  Ok what’s it mean?  Notice the MOST IMPORTANT phrase, “no right accrued, is affected by this code”.  Which came first the chicken or the egg?  In the case of inalienable rights versus government granted privilege, the “accrued right” came first and is NOT AFFECTED by the codes, ANY OF THEM!  The “accrued right” falls into the category of self-evident, they are the inalienable ones mentioned at Article 1 Section 1 of the Cal Constitution and the language there comports with the Declaration of Independence.  You got em when you were born!   Still afloat, looking good.

VEHICLE CODE

GENERAL PROVISIONS

SHORT TITLE

Continuation of Existing Law

2. The provisions of this code, insofar as they are substantially the same as existing provisions relating to the same subject matter, shall be construed as restatements and continuations thereof and not new enactments.

Pending Proceeding and Accrued Rights

4. No action or proceeding commenced before this code takes effect, and no right accrued , is affected by the provisions of this code, but all procedure thereafter taken therein shall conform to the provisions of this code so far as possible.

The codes can’t change the Constitution, it’s illegal and the Legislature doesn’t have the authority to make an end run like that.  They can’t just wipe out a constitutional provision by enacting a code.  Big No No.

Consider the following:

    “A license is in the general nature of a special privilege, entitling the licensee to do something that he would not be entitled to do without the license”. 51 Am. Jur.2d., LICENSES AND PERMITS, PART ONE, GENERAL PRINCIPLES,  I. GENERAL, §1. Generally, p. 7.

    “The right to engage in a legitimate employment or business receives recognition as a portion of the individual freedoms secured by the due process provisions of the federal and state constitutions.” Ibid.

As a member of the sovereign people and owner of private property entitled to use what you own, can you be required to obtain permission to do what you are lawfully and legally ENTITLED to do?  Just exactly whom will be doing the compelling if you answer yes?

The government servants have absolutely no constitutional foundation or authority to compel the sovereign people to spend the fruit of their labor or property with the very institution constructed to protect the very rights NOT REQUIRING ANY FEE the sovereign people are entitled to exercise legally and lawfully.  Any other conclusion is preposterous and delusional and has no basis in fact or law.

Let the accuser prove otherwise.

    “A catch-all provision imposing an annual license fee on any person, firm, association, partnership, or corporation engaged in any business, occupation, or profession, not subject to any specific license fee imposition has been held to violate the due process clause of the Federal Constitution and a provision of the state Constitution guaranteeing to all citizens the enjoyment of life and liberty, with the means of acquiring and possessing property”. 51 Am Jur.2d. §17, p. 24.
(NOTE. Am Jur is American Jurisprudence, another series of law encyclopedia.  There is also Cal Jur, the local variety of the same species.)

    “There are, of course, limitations on the legislature’s powers classifying various pursuits with respect to licensing requirements”. Ibid p. 36

    “A state cannot impose restrictions on the acceptance of a license that will deprive the licensee of  his constitutional[ly secured] rights”.  Ruckenbrod v. Mullins, 102 Utah 548, 133 P.2d. 325, 144 ALR 839 [My addition in the brackets for clarification purposes]

    "A contract may be rescinded by the act of a party entitled and desiring to rescind."
    McNeese v. McNeese, (1923) 190 Cal. 402, 213 P. 36.

    A contract obtained under any element of fraud such as non-disclosure, misrepresentation, withholding of pertinent facts     can be rescinded by serving a notice of rescission.
    Prewitt v. Sunnymead Orchard Corp., 189 Cal. 723. [Emphasis mine]

    “A writing is ‘void ab initio’ in the case of fraud in the inception, and it need not be formally rescinded as a prerequisite     to right of avoidance”.
    Bonacci v. Massachusetts Bonding Ins. Co., (1943) 58 CA 2d 657,664.

(Ab initio =  from the beginning)

    “Silence can only be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left     unanswered would be intentionally misleading”.
U.S. v. Prudden, 424 F. 2nd 1021 5th Cir. (1970),  U.S. v. Tweel, 550 F. 2nd 297 (1977)

“According to” the Legislature:

    Statutes of California, 1893, p.57, sect.1 (Feb.28, 1893) “SECTION 1.  All persons who have, or shall hereafter have, claims on contract or for negligence against the State not allowed by the State Board of Examiners, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon against the State in any of the Courts of this State of competent jurisdiction, and prosecute the same to final judgement.  The rules of practice in civil cases shall apply to such suits, except herein otherwise provided”.

Contract issues are processed according to the rules of Civil Procedure.
Welsbach Company v. State of California,  206 Cal. 556, licenses are founded on contract and subject to civil procedure.

[un-refuted affidavits are the basis for summary judgment and res judicata].  Res Judicata and collateral estoppel are applicable in criminal proceedings independent of the  concept of double jeopardy.
People v. Gephart, (1979) 93 CA3d. 989, 156 Cal.Rptr. 489. [Emphasis mine]

Prosecutor lost jurisdiction due to the failure to act within the time frame stated in the documents.
Mumaw v, City of Glendale, (1969) 270 Cal.App.2d. 454, 76 Cal.Rptr. 245 [time limits are jurisdictional] [Emphasis mine]

Under the doctrine of Res Judicata, any issue litigated in an administrative arena, cannot be re-litigated under the doctrine of Res Judicata.
City and County of San Francisco v. Padilla, (1972) 23 Cal.App3d. 388, 100 Cal.Rptr. 223, 229 .

It is necessary that the record present the fact establishing the jurisdiction of the tribunal.
People v. Board of Delegates of S.F. Fire Dept., 14 C 479
Lowe v. Alexander, 15 C 296
Blair v. Hamilton, 32 C 49
Madera Irrig. Dist. In Re, 92 C 296

 "You may have every equity in the world on your side, but you haven't disclosed them, and this is the worst type of tyranny... [Y]ou are retreating behind the Revenue Code and say that the king can do no wrong because it is the king."

Any matter NOT RAISED IS WAIVED, it is imperative to use all available legal principles and rules to achieve your goal.  You must respond within the time frame or the principles described come into play and you lose toes.

The meaning of words cannot be ascertained in a vacuum.*  The function of interpretation of a contract is to ascertain the intention of the parties as manifested by the words they used to evidence their agreement.

...it requires that a court attempt to place itself in the same situation as that of the parties at the time of the execution.

* This is clearly recognized by Wigmore, who traces the development of the parol evidence rule and states that:

“The truth had finally to be recognized that word always need interpretation; that the process of interpretation inherently and invariably means the ascertainment of the association between words and external objects; and a free resort to extrinsic matters for applying and enforcing the document”.

“Once freed from the primitive formalism which views the document as a self-contained and self-operative formula, we can fully appreciate the modern principle that the words of a document are never anything but indices to extrinsic things, and that therefore all the circumstances must be considered which go to make clear the sense of the words,-that is, their association with things’.
9 Wigmore on Evidence §2470 at p. 227 (3d. Ed. 1940)

In a sense, anyone who is fraudulently induced to enter a contract is “injured”; his “interest in making a free choice and in exercising his own best judgement in making decisions with respect to economic transactions and enterprises has been interfered with”. (See McCleary, Damage as a Requisite to recission for Misrepresentation, 36 Mich.L.Rev.1, 227, 245)

“...What is plainly injurious to good faith ought to be considered as a fraud sufficient to impeach a contract”, and that an improvident agreement may be avoided - “because of surprise, or mistake, want of freedom, undue influence, the suggestion of falsehood, or the suppression of truth”

“An ‘unconscionable contract’ has been defined to be such as no sensible man not under delusion, duress or in distress would make, and such as no honest and fair man would accept.  There exists here and ‘inequality so strong, gross and manifest that it is impossible to state it to a man of common sense without producing an exclamation at the inequity of it’.  ‘Where the inadequacy of the price is so great that the mind revolts at it the court will lay hold on the slightest circumstances of oppression or advantage to rescind the contract’”.

“It is not the policy of the law to restrict business dealings or to relieve a party of his own mistakes of judgment, but where on party has taken advantage over him, and the latter, owing to his condition, has encumbered himself with a heavy liability or an onerous obligation for the sake of a small or inadequate present gain, there will be relief granted”.  Stiefler v. McCullough (1933), 97 Ind.App. 123, 174 N.E. 823

It seems a deplorable abuse of justice to hold a man of poor education, to a contract prepared by the attorneys of American Oil, for the benefit of American Oil which was presented to Weaver on a “take it or leave it basis”.

“These principles are not foreign to the law of contracts.  Fraud and duress are not the only grounds upon which courts refuse to enforce contracts.  The law is not so primitive that it sanctions every injustice except brute force and downright fraud.  More specifically, the courts generally refuse to lend themselves to the enforcement of a ‘bargain’ in which one party has unjustly taken advantage of the economic necessities of the other”.
Justice Frankfurter in dissenting opinion in the United States v. Bethlehem Steel Corp. (1942) 315 U.S. 289, 326, 62 S.Ct. 581, 599, 86 L.Ed. 855, 876

...in present-day commercial life the standardized mass contract has appeared.  It is used primarily by enterprises with strong bargaining power and position.  The weaker party, in need of the good or services, is frequently not in a position to shop around for better terms, either because the author of the standard contract has a monopoly (natural or artificial) or because all competitors use the same clauses.

Judge Frankfurter’s dissent was written nearly twenty years ago. It represents a direction and philosophy which the law, at that time was taking and is now known as the parole evidence rule. The parole evidence rule states that an agreement or contract, signed by parties is conclusively presumed to represent and integration or meeting of the minds of the parties.  This is an archaic rule from the common law.  The objectivity of the rule has as its only merit its simplicity of application which is far outweighed by its failure in many cases to represent the actual agreement, particularly where a printed form prepared by one party contains hidden clauses unknown to the other party is submitted and signed.

When a party can show that the contract, which is sought to be enforced, was in fact an unconscionable one, due to a prodigious amount of bargaining power on behalf of the stronger party, which is used to the stronger party’s advantage and is unknown to the lesser party, causing a great hardship and risk on the lesser party, the contract provision, or the contract as a whole, if the provision is not separable, should not be enforceable on the grounds that the provision is contrary to public policy.  The party seeking to enforce such a contract has the burden of showing that the provisions were explained to the other party and came to his knowledge and there was in fact a real and voluntary meeting of the minds and not merely an objective meeting.

Without regard to whether or not he was aware of its contents, a person will be relieved of his obligations under a contract under circumstances falling into two main categories: (a) where the contract is not enforceable because of occurrences or omissions (fraud, concealment, etc.) Surrounding its execution and where, (2) the contract is not enforceable because of the nature or subject of the contract (illegality of subject mater).

An adhesion contract is one that has been drafted by unilaterally by the dominant party and then presented on a “take it or leave it” basis to the weaker party, who has no real opportunity to bargain about its terms. (Restatement 2d, Conflict of Law §332a, Comment e) (C.J.S. Contracts §10 p. 581.)

(C.J.S. is a law encyclopedia series, Corpus Juris Secundum)
 

Quod Initio Non Valet, Tractu Temporis Non Valet
A thing void in the beginning does not become valid by lapse of time

It is the province of the courts to interpret (and not to make) contracts by ascertaining the legal import of the language employed by the parties themselves to express their agreement.  Dover Glass Works Co. v. American Fire Ins. Co., 1 Marv. 32, 29 A. 1039 (1894).  Our function is not to re-write or re-state what the parties have said.  We read what is written and when it is plain, when only one meaning can be found in the words used, our duty is to state that meaning and go on to the next step in the judicial process.

At comment f to§237 of Restatement (second) of Contracts, supra pp. 540 -41, we find the following analysis of the reasonable expectations doctrine:

“Although customers typically adhere to standardized agreements and are bound by them without even appearing to know the standard terms in detail, they are not bound to unknown terms which are beyond the range of reasonable expectation.  A debtor who delivers a check to his creditor with the amount blank does not authorize the insertion of an infinite figure.  Similarly, a party who adheres to the other part has reason to believe that the adhering party would not have accepted the agreement if he had known that the agreement contained the particular term. Such a belief or assumption may be shown by the prior negotiations or inferred from the fact that the term is bizarre or oppressive, from the fact that it eviscerates the non-standard terms explicitly agreed to, or from the fact that it eliminates the dominant purpose of the transaction.  The inference is reinforced if the adhering party never had and opportunity to read the term, or if it is illegible or otherwise hidden from view.  This rule is closely related to the policy against unconscionable terms and the rule of interpretations against the draftsman”.

Above sections at page 2 starting with Parol Evidence and Interpretation, are from: