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ABUSE OF POWER AND PROCESS
The Court of Appeals described the instant action as one claiming malicious abuse of process. But, as usually defined, that tort "is committed when the actor employs legal process in a manner technically correct, but for a wrongful and malicious purpose to attain an unjustifiable end . . . ." 1 Harper and James, Torts (1956), 4.9; see 3 Restatement of Torts 682; Prosser, Torts (2d ed. 1955), 100. Put succinctly, the tort is the "perversion" of legal process. Mayer v. Walter, 64 Pa. 283, 286. In the instant case, the process allegedly abused was not judicial, but legislative. I do not, however, consider the distinction material. But cf. Comment, 63 Col. L. Rev. 326, 327, n. 13 (1963). Abuse of administrative process seems to be a recognized aspect of the tort, see 1 Harper and James, supra, 4.10; 3 Restatement of Torts 680; National Surety Co. v. Page, 58 F.2d 145; but cf. Petherbridge v. Bell, 146 Va. 822, 132 S. E. 683, and so does abuse of the judicial subpoena power, Dishaw v. Wadleigh, 15 App. Div. 205, 44 N. Y. Supp. 207. WHEELDIN v. WHEELER. 373 U.S. 647 (1963)
"If a magistrate instigates a prosecution before himself without probable cause and deliberately uses the process issued by him therein, not for the legitimate purpose of hearing the case, but to show his authority and to gratify his personal feelings of importance, the act savors of oppression and constitutes an illegal abuse of process." Dean v. Kochendorfer, 237 NY 384, 143 NE 229.
ACT OF CONGRESS
"Act of Congress" includes any act of Congress locally applicable to and in force in the District of Columbia, in Puerto Rico, in a territory or in an insular possession. Federal Rules of Criminal Procedure, Rule 54( c), application of terms, and attending advisory committee notes:
act of legislature. See statute, also various acts under popular or distinguishing name, such as nonclaim statute; statute of frauds; moratory statute, etc. Ballentine’s Law Dict. 3rd Ed. p. 22.
Statute- An Act of the legislature as an organized body. Washington v. Dowling, 92 Fla. 601, 109 So 588. The written will of the legislative department, expressed according to the form necessary to constitute it a law of the United States or of a State, and rendered authentic by certain prescribed forms and solemnities. "In a broader sense, inclusive of an act of the legislature, an administrative regulation, or any enactment, from whatever source originating, to which the state gives the force of law." 50 Am J1st Stat .2.
[2a] The courts must decide on a case-by-case basis whether an administrative decision substantially affects a fundamental vested right. If an administrative decision affects such a right, then a full and independent judicial review of that decision is indicated because "[t]he; abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction." (Bixby v. Pierno, supra, 4 Cal.3d at p. 144.) McGue v. Sillas , 82 Cal.App.3d 799.
We think it plain from this resume of the pertinent parts of the act that the powers confided to the commission respecting the granting and renewal of station licenses are purely administrative, and that the provision for appeals to the Court of Appeals does no more than make that court a superior and revising agency in the same field. FEDERAL RADIO COMMISSION v. GENERAL ELECTRIC CO. 281 U.S. 464 (1930)
"the IRS is under a legal obligation to follow their own regulations, procedures and precedents." See Vitarelli v. Boston Television Corp. v. F.C.C. 444 F.2d 841; Shell Oil Co. v. Federal Energy Regulatory Comm’n, 664 F.2d 79; Service v. Dulles, 354 U.S. of the Navy, 639 F.2d 1029; United States v. Shaunessey, 347 U.S. 260; International House v. N.L.R.B., 676 F.2d 906.
"The government waives its immunity when it violates one of its own statutes." Hollingshead v. United States, 85-2 USTC 9772 (5th Cir. 1985)
"Administrative authorities are creatures of statute and have only such powers as the statute confers on them. Their powers must be exercised in accordance with the statute bestowing such powers, United States ex rel. Kansas City Southern R. Co. v. Interstate Commerce Commission, 252 US 178, 64 L ed 717, 40 S Ct 187. And they can act only in the mode prescribed by statute."
"As a general rule, when rights of an individual are affected, an agency must follow its own procedure…Should an agency violate its rules and prejudice results, proceedings are tainted and any action resulting from the proceedings cannot stand." Borowski v. Heckler, 581 F.Supp. 549
"An officer who acts in violation of the United States Constitution ceases to represent the government." Brookfield Co. v. Stuart, (1964) 2, 34 F. Supp. 94, 99 USDC, Washington, D C.
Although the evidence showed that Hinton knew Sims and Myers, and knew that they were deputy sheriffs, it was the duty of Sims to inform him to consider himself under arrest, or by some other language convey to Hinton the idea that he was attempting to arrest him. Instead of doing that, he used the language of a highwayman, "Put up your hands." And, by the way, during these times it is well known that some officers of the law have turned bandits. If it had been shown that Hinton was a desperate and dangerous criminal, a well-known killer, or a would-be killer, Sims might have been justified in proceeding as he did. Gurley v. Tucker (Miss.) 155 So. 189. 'Must every man, innocent or guilty, put up his hands whenever commanded to do so by an officer, whether in the daytime or nighttime, and regardless of the situation and surroundings without being informed by the officer of the reason for the command? We think not. Hinton v. Sims 155 So. 141 (Miss); 158 SOUTHERN REPORTER
A peace officer cannot legally make an arrest without a warrant for an offense claimed to have been committed in his presence, under Code, §§ 5099, 5196, which he himself provokes or brings about. State v. Small, 184 Iowa, 882, 169 N. W. 116; Leighton v. Getchell, 169 N. W. 649. SCOTT v. FEILSCHMIDT (191 Iowa, 347) 182 NORTHWESTERN REPORTER 382
BILL OF ATTAINDER/ PAINS AND PENALTIES/
EX POST FACTO
The best available evidence, the writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply - trial by legislature. United States v. Brown 381 U.S. 437 (1965)
Ex post facto is a term used in the law, signifying something done after, or arising from or to affect, another thing that was committed before.’ ‘An ex post facto law is one which operates upon a subject not liable to it at the time the law was made.’ KRING v. STATE OF MISSOURI 107 U.S. 221, 27 L Ed 506, 2 S Ct. 443. (1883)
It may be said, generally speaking, that an ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed; or an additional punishment to that then prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in relation to the offense or its consequences, alters the situation of a party to his disadvantage, (Cummings v. Missouri, 4 Wall. 277; Kring v. Missouri, 107 U.S. 221, 2 Sup. Ct. 443;) . . . But we are not called on to place our decision upon concurrence in that view, since we are of opinion that the plaintiff in error did not bring himself within the provisions of section 709 of the Revised Statutes. DUNCAN v. MISSOURI, 152 U.S. 377 (1894)
DEFIANCE AND DISREGARD OF THE LAW
Defiance: A contemptuous opposition or disregard openly expressed in words or action. State v. Mohar, 169 Wash, 368, 13 P.2d 454, 455. A provoking to combat, a challenge, a declaration of hostilities. Anderson-Berney Bldg. Co. v. Lowry, Tex.Civ.App., 143 S.W.2d 401, 403. Defiant challenge or opposition to authority. Black’s Law Dict. 6th edition, pg. 421.
Disregard: To treat as unworthy of regard or notice; to take no notice of; to leave out of consideration; to ignore; to overlook; to fail to observe. Black’s Law Dict. 6th edition, pg. 472.
EMPLOYEE, EMPLOYER AND SELF-EMPLOYED
NRS 286.040 "Employee" defined.
1. "Employee" means:
(a) A public officer of the State of Nevada or its political subdivisions.
(b) Any person employed by a public employer whose compensation is provided by the public employer and who is under the direction or control of officers of the public employer.
2. "Employee" does not include independent contractors or persons rendering professional services to an employer on a fee, retainer or contract basis.
NRS 616A.230 "Employer" defined.
1. The state, and each county, city, school district, and all public and quasi-public corporations therein without regard to the number of persons employed.
2. Every person, firm, voluntary association, and private corporation, including any public service corporation, which has in service any person under a contract of hire.
3. The legal representative of any deceased employer.
4. The Nevada rural housing authority.
TITLE 26, Subtitle A, CHAPTER 1, Subchapter D, PART I, Subpart A, Sec. 401(31)(c)(1)(c) Definitions and rules relating to self-employed individuals and owner-employees
For purposes of this section – (1) Self-employed individual treated as employee
INTERNAL REVENUE CODE, at TITLE 26, Subtitle A, CHAPTER 1, Subchapter B, PART VII, Sec. 217(f); DEFINES SELF-EMPLOYED AS:
(f) Self-employed individual
For purposes of this section, the term "self-employed individual" means an individual who performs personal services –
(1) as the owner of the entire interest in an unincorporated trade or business, or
(2) as a partner in a partnership carrying on a trade or business.
TITLE 26, Subtitle F, CHAPTER 79, Sec. 7701(26) (26)Trade or business
The term "trade or business" includes the performance of the functions of a public office.
IN THIS STATE
Phrase "in this state," within constitutional provision against holding more than one lucrative office at once, means in the state government. BOSWELL v. POWELL. 43 S.W. (2d) Tenn.
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