Title: IMPORTANT CASE LAW, GARNISHMENTS, ETC
Author: Family
Last saved by: Jeff
Company: Hewlett-Packard Company

IMPORTANT CASE LAW, GARNISHMENTS, ETC.
  Argumentum ab authoritate est fortissimum in lege. An argument drawn from authority is the strongest in law. Co. Litt. 254.

  Argumentum simili valet in lege. An argument drawn from a similar case, or analogy, avails in law. Co. Litt. 191.
* ON WAGE SEIZURES
U.S. Supreme Court
SNIADACH v. FAMILY FINANCE CORP., 395 U.S. 337 (1969)
SNIADACH v. FAMILY FINANCE CORP. OF BAY VIEW ET AL. 
CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 
No. 130. 
Argued April 21, 1969. 
Decided June 9, 1969. 
On the matter of garnishment of wages before a court judgment is rendered:
SNIADACH v. FAMILY FINANCE CORP., 395 U.S. 337 (1969): “Held: Wisconsin's prejudgment garnishment of wages procedure, with its obvious taking of property without notice and prior hearing, violates the fundamental principles of procedural due process. Pp. 339-342.” This holding should be added to all administrative pleadings to the company or bank. The Court goes on to say, "The idea of wage garnishment in advance of judgment, of trustee process, of wage attachment, or whatever it is called is a most inhuman doctrine. It compels the wage earner, trying to keep his family together, to be driven below the poverty level." “The result is that a prejudgment garnishment of the Wisconsin type may as a practical matter drive a wage-earning [395 U.S. 337, 342]   family to the wall. 9 Where the taking of one's property is so obvious, it needs no extended argument to conclude that absent notice and a prior hearing (cf. Coe v. Armour Fertilizer Works, 237 U.S. 413, 423 ) this prejudgment garnishment procedure violates the fundamental principles of due process.” 
“Reversed.”
FUENTES v. SHEVIN, 407 U.S. 67 (1972): Held: 
“1. The Florida and Pennsylvania replevin provisions are invalid under the Fourteenth Amendment since they work a deprivation of property without due process of law by denying the right to a [407 U.S. 67, 68] prior opportunity to be heard before chattels are taken from the possessor. Pp. 80-93. 
(a) Procedural due process in the context of these cases requires an opportunity for a hearing before the State authorizes its agents to seize property in the possession of a person upon the application of another, and the minimal deterrent effect of the bond requirement against unfounded applications for a writ constitutes no substitute for a pre-seizure hearing. Pp. 80-84. 
(b) From the standpoint of the application of the Due Process Clause it is immaterial that the deprivation may be temporary and nonfinal during the three-day post-seizure period. Pp. 84-86.”

“Neither the history of the common law and the laws in several states prior to the adoption of the Bill of Rights, nor the case law since that time, justifies creation of a broad exception to the warrant requirement for intrusions in furtherance of tax enforcement.” G. M. Leasing Corp. v. U. S., U.S.Utah 1977, 97 S.Ct. 619, 429 U.S. 338, 50 L.Ed.2d 530, on remand 560 F.2d 1011.

* On Levy Before Due Process.
COMMISSIONER v. SHAPIRO, 424 U.S. 614 (1976):
“Normally, the Internal Revenue Service may not "assess" a tax or collect it, by levying on or otherwise seizing a taxpayer's assets, until the taxpayer has had an opportunity to exhaust his administrative remedies, which include an opportunity to litigate his tax liability [424 U.S. 614, 617] fully in the Tax Court” (Note: Here the US Supreme Court refers to TAX COURT as an administrative body performing an administrative hearing. You also have other administrative remedies and Judicial remedy in U.S. District Court.) 
* ON FORM 668-B, 668-W.
An important point concerning notices of levy is that a notice of levy is not a levy; the notice of levy is simply a notice, nothing more. The following cite clarifies the matter:
"Under the 1939 Code, effective with respect to distraint and seizure and
sale actions prior to January 1, 1955, levy or distraint on personal or real
property in the possession of a taxpayer was authorized by a signed Warrant
for Distraint, Form 69, which commanded the collection officer to take the
necessary distraint action. Under the 1954 Code, effective with respect to
all collection actions after December 31, 1954, the levy and distraint
action will be authorized by a new form, Levy, Form 668-B, January 1955.
This form (668-B, not 668-W, notice of levy), properly executed, directs the
collection officer to levy upon, and to sell so much of the property and
rights to property, either real or personal, of the taxpayer liable, as may
be necessary to satisfy the taxes enumerated in the levy. The Form will not
require any accompanying documents, since the Form, properly prepared, will
contain all information necessary to meet the statutory requirements
(emphasis added)."  Henderson v. Internal Revenue Service, Kleinrock's Tax
Court Reported, 1994-486, S.D.Indiana, Case # IP 93-1699-C, Filed May 31,
1994).
"A 'Levy' requires that property be brought into legal custody through seizure, actual or constructive, and is absolute appropriation in law of property levied on, and MERE NOTICE OF INTENT TO LEVY IS INSUFFICIENT" (Emphasis added). United States v. O'Dell, 160 F. 2d 304, 307 (6th Circuit 1947).
* ON INTERPRETATION OF THE LAW.
“We sympathize with the taxpayer, Anthony W. Malone, who relies only upon what he accepts as an authoritative interpretation of the laws and of Treasury Publications, but nonetheless it is for Congress and the courts and the Treasury to declare the law applicable to a given situation.”  (Carpenter v. United States 495 F 2d 175).
* ON ALTERING A W-4. 
(Referring to the W-4 form) “The employer is not authorized to alter the form or to dishonor the employee’s claim.  The certificate goes into effect automatically”.  U.S. District Court Judge Huyett, United States v. Malinowslci, 347 F. Supp. 352 in 1992.
* ON LABOR AS PROPERTY.
"The property that every man has is his personal labor, as it is the original foundation of all other property so it is the most sacred and inviolable…to hinder his employing [it]…in what manner he thinks proper, without injury to his neighbor, is a plain violation of the most sacred property". Butcher's Union Co. v. Cresent City Co., 111 US 746.

* ON LIABILITY FOR TAX.

“The taxpayer must be liable for the tax.  Tax liability is a condition precedent to the demand.  Merely demanding payment, even repeatedly, does not cause liability”. 
Boathe v. Terry, 713 F. 2d 1405, at 1414 (1983).

* ON REQUIRING SIGNATURES

Independent School District #639, Vesta v. Independent School District #893, Echo, 160 N.W.2d 686 (Minn. 1968): "To allow one to take official action simply by giving oral approval to a letter which does not recite the action and which does not go out under one's name is to extend permissible delegation beyond reasonable bounds," 160 NW 2d, at 689.

“…A signature requirement protects the taxpayer by ensuring that a responsible officer has approved the assessment…”, CURLEY v. U.S., Cite as 791 F. Supp 52 (E.D.N.Y. 1992)
* ON AGENT”S REFUSAL TO RESPOND
“Silence can be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading. . . We cannot condone this shocking behavior by the IRS. Our revenue system is based on the good faith of the taxpayer and the taxpayers should be able to expect the same from the government in its enforcement and collection activities.” U.S. v. Tweel, 550 F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d 1021, 1032; Carmine v. Bowen, 64 A. 932.
* On Requirement Of Assessment, A Return, and Payment by Stamp (excise tax).
Sec. 6201. - Assessment authority (a) Authority of Secretary 
The Secretary is authorized and required to make the inquiries, determinations, and assessments of all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title, or accruing under any former internal revenue law, which have not been duly paid by stamp at the time and in the manner provided by law. Such authority shall extend to and include the following: 
(1) Taxes shown on return 
(b) Amount not to be assessed 
(1) Estimated income tax 
No unpaid amount of estimated income tax required to be paid under section 6654 or 6655 shall be assessed.
(d) Required reasonable verification of information returns 
In any court proceeding, if a taxpayer asserts a reasonable dispute with respect to any item of income reported on an information return filed with the Secretary under subpart B or C of part III of subchapter A of chapter 61 by a third party and the taxpayer has fully cooperated with the Secretary (including providing, within a reasonable period of time, access to and inspection of all witnesses, information, and documents within the control of the taxpayer as reasonably requested by the Secretary), the Secretary shall have the burden of producing reasonable and probative information concerning such deficiency in addition to such information return.
Sec. 6203. - Method of assessment 
The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Upon request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of the assessment.
26 CFR § 301.6203-1: The assessment certificate must comply with and include the following: The summary record of assessment, through support documents, shall,
1.	Provide identification of the taxpayer;
2.	 Identify the character of the tax liability (class or kind);
3.	The tax period, if applicable;
4.	The amount of the assessment;
5.	The amount of the assessment shall be that shown on a return if a return has been filed, or the amount reflected on the supporting list or record if no return is filed; and
6.	 The date of the assessment is the date the assessment is signed by the assessment officer.
Sec. 6211. - Definition of a deficiency 
(a) In general 
For purposes of this title in the case of income, estate, and gift taxes imposed by subtitles A and B and excise taxes imposed by chapters 41, 42, 43, and 44 the term ''deficiency'' means the amount by which the tax imposed by subtitle A or B, or chapter 41, 42, 43, or 44 exceeds the excess of - 
(1) the sum of 
(A) the amount shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus 
(B) the amounts previously assessed (or collected without assessment) as a deficiency, over - 
(2) the amount of rebates, as defined in subsection (b)(2), made. 
 * On Vagueness Of Statute.
"(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v General Construction Co., 269 US 385, 391 (1926).

* ON 6331 LEVY; Purpose - 

"This section was enacted to subject salaries of federal employees to same collection procedures as are available against all other taxpayers, including employees of a state." Sims v US, W. Va. 1959, 79 S. Ct. 641, 359 US 108, and 3 L. Ed. 2d 667.

“Under provision of this section, a levy may be made upon accrued salary or wages of state employee although state employees are not specifically mentioned in said section.” Sims v. U.S., U.S.W.Va.1959, 79 S.Ct. 641, 359 U.S. 108, 3 L.Ed.2d 667.
* On The Purpose Of IRC Section 6321.
On 6321; "Purpose of this section is to fit federal tax liens into priority scheme of the Uniform Commercial Code." Pine Builders, Inc. v US, D.C. Va. 1976, 413 F. Supp. 77.
* ON DISTRAINT
FLORA v US, 362 US 145 (1960): “Our system of taxation is based upon voluntary assessment and payment, not upon distraint.”
* ON IRS AS PRIVATE CORPORATION
CHRYSLER CORP. v. BROWN, 441 U.S. 281 (1979) 
[ Footnote 23 ] There was virtually no Washington bureaucracy created by the Act of July 1, 1862, ch. 119, 12 Stat. 432, the statute to which the present Internal Revenue Service can be traced.
* ON BURDEN PLACED ON PERSONS DEALING WITH AGENT

In Federal Crop Insurance v. Merrill, 332 U.S. 380, the Supreme Court ruled: “Whatever the form in which the government functions, anyone entering into an arrangement with the government takes a risk of having accurately ascertained that he who purports to act for the government stays within the bounds of his authority, even though the agent himself may be unaware of the limitations upon his authority.”  Also see Utah Power & Light Co. v. United States, 243 U.S. 389; United States v. Stewart, 311 U.S. 60; and generally, in re Floyd Acceptances, 7 Wall. 666.

Continental Casualty Co. v. United States, 113 F.2d 284 (5th Cir. 1940): 
"Public officers are merely the agents of the public, whose powers and authority are defined and limited by law. Any act without the scope of the authority so defined does not bind the principal, and all persons dealing with such agents are charged with knowledge of the extent of their authority," 113 F.2d, at 286.

Lavin v. Marsh, 644 F.2d 1378 (9th Cir. 1981): Retirement benefits case. Court stated: "Persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority and provide misinformation," 644 F.2d, at 1383.

* On Habitude of Malfeasance.
In re Benny, 29 B.R. 754, 762 (N.D. Cal. 1983): "[A]n unlawful or unauthorized exercise of power does not become legitimated or authorized by reason of habitude."
See also Umpleby, by and through Umpleby v. State, 347 N.W.2d 156, 161 (N.D. 1984).

* On Subpoena powers of federal agents without expressly named delegated authority are void; see Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651 (1942);
“We cannot assume that Congress was of the opinion that the present agency, when appropriately organized for the purpose, would be any the less able to function without the power in the Administrator to delegate the signing and issuance of subpoenas than the Federal Trade Commission, the Interstate Commerce Commission, and other agencies which have not been given and do not assert the power. Nor can we assume, as the Government argues, that Congress is wholly without design in withholding the power in this case and granting it in others, or even if it had been, that it is any part of the judicial function to restore to the Act what Congress has taken out of it. Even though Congress has underestimated the burden which it has placed upon the Administrator, which is by no means clear, we think that the legislative record establishes that Congress has withheld from him authority to delegate the exercise of the subpoena power, and that this precludes our restoring it by construction.”

* ON OMB NUMBER REQUIREMENT.

CFR, TITLE 5, CHAPTER III, Sec. 1320.6  Public protection:
   “(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to the requirements of this part if:
    “(1) The collection of information does not display, in accordance with Sec. 1320.3(f) and Sec. 1320.5(b)(1), a currently valid OMB control number assigned by the Director in accordance with the Act.”
   “(b) The protection provided by paragraph (a) of this section may be raised in the form of a complete defense, bar, or otherwise to the imposition of such penalty at any time during the agency administrative process in which such penalty may be imposed or in any judicial action applicable thereto.”

* ON KNOWLEDGE.
The legal dictionary states, “Constructive knowledge - knowledge that the law attributes to a person regardless of whether that person has actual knowledge of the matter, usually because the circumstances are such that a failure to know a fact is regarded as inexcusable.”

* ON COLLECTION PROCEDURES, Quotes from Internal Revenue Manual
“Before any seizure action is considered, the assessment will be fully explained and verified with the taxpayer. Also, any adjustments will be fully explained, and the taxpayer will be informed of his/her rights.”

“If the taxpayer claims the assessment is wrong or has additional information that could impact the assessment, it should be thoroughly investigated and resolved prior to proceeding with enforcement action.”

“The Service has a responsibility to collect the correct amount of tax due, and is required to verify the taxpayer's liability. In some instances the Service will be required to demonstrate that the liability is owed. In order to satisfy this responsibility, we must ensure the liability has been substantiated based on all available facts of the case.”

* ON THE DEFINITION OF EXCISE TAXES.
 “Excises are ‘taxes laid upon the manufacture, sale, or consumption of commodities within the country, upon licenses to pursue certain occupations, and upon corporate privileges.” FLINT v STONE TRACY, 220 US 107 (1911).

* On Subtitle A from Disclosure Office.
In a response letter to Joann H. Hoverale from Cynthia J. Mills, Disclosure Officer of the Internal Revenue Service, Philadelphia, Pa., Ms. Mills states:
"Dear Mrs. Hoverale:
This is in response to your Privacy Act request dated December 12, 1995.
The Internal Revenue Code is not positive law, it is special law. It applies to specific persons in the United States who choose to make themselves subject to the requirements of the special laws in the Internal Revenue Code by entering into an employment agreement within the U.S. Government.
The law is that income from sources not effectively connected with the conduct of a trade or business within the U.S. Government is not subject to any tax under subtitle "A" of the Internal Revenue Code.
This concludes our response to your request.
Sincerely yours,
(signature of Ms. Mills)
Cynthia J. Mills, Disclosure Officer"

* ON SUING FEDERAL AGENTS.
“When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).

“Federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violations.” (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93).

The lawsuit is simpler if directed at the agent personally: Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457 (1949): suits agent govt agents: personal if without authority.
“If the denomination of the party defendant by the plaintiff were the sole test of whether a suit was against the officer individually or against his principal, the sovereign, our task would be easy. Our decision then would be that the United States is not being sued here because it is not named as a party.”
IMMUNITY
In Cooper v. O'Connor, 99 F.2d 135, 137, 138 (D.C. Cir. 1938), a banker was indicted, acquitted and then brought suit for malicious prosecution against the agents who caused his indictment. Regarding the rule that agents acting outside the scope of their authority are personally liable for their torts, the court stated: 
"There is also a general rule that if any officer- ministerial of otherwise- acts outside the scope of his jurisdiction and without authorization of law, he is liable in an action for damages for injuries suffered by a citizen as a result thereof."
See also Estrada v. Hills, 401 F.Supp. 429, 434 (N.D.Ill. 1975).

In Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894 (1978), this rule was clearly acknowledged by the Court: "As these cases demonstrate, a federal official was protected for action tortious under state law only if his acts were authorized by controlling federal law," 438 U.S., at 490. 
" As Doe's analysis makes clear, absolute immunity from state law tort actions should be available only when the conduct of federal officials is within the scope of their official duties and the conduct is discretionary in nature"; Benford v. American Broadcasting Co., Inc., 554 F.Supp. 145, 148 (D.Md. 1982); and Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989). See also Rutherford v. United States, 702 F.2d 580 (5th Cir. 1983).
For example, in Buck v. Colbath, 70 U.S. 334, 344 (1866), "In all these particulars he is bound to exercise his own judgment, and is legally responsible to any person for the consequences of an error or mistake in its exercise to his prejudice. He is so liable to plaintiff, to defendant, or to any third person whom his erroneous action in the premises may injure.

ON 42 USC 1983 and SUMMARY JUDGMENT.

Accordingly, "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKin-non, supra, 568 F.2d at 934.

* ON TAX EVASION and AVOIDANCE
According to Black’s Law Dictionary, Centennial 6th Edition, pg. 554, “evasion” is defined as “An act of eluding, dodging, avoiding, or avoiding by artifice. City of Winky v. Griffith Amusement Co., 129 Tex 40,100 S.W.2d 695,701.” “Evasion” is “A subtle endeavoring to set aside truth or to escape the punishment of law.  Tax ‘evasion’ is to be distinguished from tax ‘avoidance’, the former meaning the illegal nonpayment of taxes due, the latter referring to the legal reduction or nonpayment of taxes through allowable deductions, exemptions, etc.”

* On 14th Amendment Rights.

“This statute, enacted to aid in "'the preservation of human liberty and human rights'" Owen v. City of Independence, 445 US 622, 636 (1980), reflects a congressional judgment that a "damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees."  As remedial legislation, [the Act to Enforce the Provisions of the Fourteenth Amendment] is to be construed generously to further its primary purpose.” Gomez v. Toledo, 446 US 635 (1980).

* On Defense against Summary Judgment or Motion To Dismiss.

“Since personal involvement is a question of fact we are governed by the general rule that summary judgment may be granted only if no issues of material fact exist and the defendant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Hayden Pub. Co., Inc. v. Cox; Broadcasting Corp., 730 F.2d 64, 67 (2d Cir. 1984).
 
“The party seeking summary judgment bears the burden of establishing that no such dispute exists.” Gutwein v. Roche Laboratories, 739 F.2d 93, 95 (2d Cir.l984).

Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda, 384 US 436, at 491.

SWIERKIEWICZ v. SOREMA N. A., certiorari to the united states court of appeals for the second circuit No. 00-1853. Argued January 15, 2002--Decided February 26, 2002:
Complaint “must contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. Rule Civ. Proc. 8(a)(2). The McDonnell Douglas framework--which requires the plaintiff to show (1) membership in a protected group, (2) qualification for the job in question, (3) an adverse employment action, and (4) circumstances supporting an inference of discrimination--is an evidentiary standard, not a pleading requirement. See, e.g., 411 U. S., at 800. The Court has never indicated that the requirements for establishing a prima facie case apply to pleading.”

“It seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered. Moreover, the precise requirements of the prima facie case can vary with the context and were "never intended to be rigid, mechanized, or ritualistic." Furnco Constr. Corp. v. Waters, 438 U. S. 567, 577. It may be difficult to define the precise formulation of the required prima facie case in a particular case before discovery has unearthed relevant facts and evidence.”

“A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U. S. 69, 73.”

“Statements of counsel in their briefs or arguments are not sufficient for the purposes of granting a motion to dismiss or for summary judgment.” TRINSEY v PAGLIARO, D.C. Pa. 1964, 229 F. Supp. 647.

“Unsupported contentions of material fact are not sufficient on motion for summary judgment, but rather, material facts must be supported by affidavits and other testimony and documents that would be admissible in evidence at trial.” CINCO ENTERPRISES, INS. v BENSO, Okla., 890 P.2d 866 (1994).

“In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41 (1957).   

“Following the simple guide of Rule 8(f) that all pleadings shall be so construed as to do substantial justice, we have no doubt that petitioners' complaint adequately set forth a claim and gave the respondents fair notice of its basis.  The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.  Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197.”

* On Final Judgment and Relief Granted.

“Every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleading.”  U.S. v. White County Bridge Commission, 2 Fr Serv 2d 107, 275 F2d 529, 535.

* On IRS alleged Penalties.

“… penalties for failure to pay tax shown on return weren't upheld since there were no returns, and thus no reported tax on which to base penalties.” (Alex B. Rhodes, Jr. v. Commissioner, (2003) TC Memo 2003-133 , 2003 RIA TC Memo ¶2003-133 )

IRC section 6751 (b) states: “No penalty under this title shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor of the individual making such determination or such higher level official as the Secretary may designate.” On any claimed penalty by the IRS, demand to see the written approval by the supervisor.

* On Intimidation Of Judges.

“When this court found that the Internal Revenue agents had violated the law and that the improperly seized records were to be returned, the agents were, to say the least, not happy.  More than once have judges of a court been indirectly reminded that they too are taxpayers.

“No sophisticated person is unaware that the Internal Revenue Service has been in possession of facts with respect to public officials which it has presented or shelved in order to serve what can only be called political ends, be they high or low.  And a judge who knows the score is aware that every time his decisions offend the Internal Revenue Service, he is inviting a close inspection of his records.” Lord v. Kelley, 240 F.Supp. 167 (1965).

* On Interpreting Tax Statutes.

Gould v. Gould, 245 U.S. 151, at 153: "In the interpretation of statutes levying taxes, it is the established rule not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government and in favor of the citizen. United States v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16,690; American Net & Twine Co. v. Worthington, 141 U.S. 468, 474 , 12 S. Sup. Ct. 55; Benziger v. United States, 192 U.S. 38, 55 , 24 S. Sup. Ct. 189.”

“There must be certainty as to the meaning and scope of the language imposing any tax, and doubt in respect to its meaning is to be resolved in favor of the taxpayer.”  Treat v. White, 181 U.S. 264 (1901).

“The citizen is exempt from taxation unless the same is imposed by clear and unequivocal language, and that where construction of a tax law is doubtful, the doubt is to be resolved in favor of those upon whom the tax is sought to be laid.”  Spreckels Sugar Refining Co. v. McClain, 192 U.S. 397 (1904).

“In interpreting a statute, a court should always turn first to one cardinal canon before all others.  We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.  When the words of a statute are unambiguous, then this first canon is also the last:  judicial inquiry is complete.”  Conn. National Bank v. Germain, 503 U.S. 249 (1992).

* On Pro-se Litigants.
“… allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers…” Haines v. Kerner, 404 US 519 (1972).

* On The Right Of Not Being Compelled To Testify Against Yourself.

“(a) That the client in any ensuing criminal action could move to suppress the subpoenaed material after it had been produced does not afford adequate protection, because without something more "he would be compelled to surrender the very protection which the privilege is designed to guarantee," Hoffman v. United States, 341 U.S. 479, 486 . United States v. Blue, 384 U.S. 251 , distinguished.” Pp. 461-463.

* On Effective Assistance of Counsel.

‘‘[T]he right to counsel is the right to the effective assistance of counsel.’’ 233 From the beginning of the cases holding that counsel must be appointed for defendants unable to afford to retain a lawyer, the Court has indicated that appointment must be made in a manner that affords ‘‘effective aid in the preparation and trial of the case.’’ 234
233 McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
234 Powell v. Alabama, 287 U.S. 45, 71-72 (1932); Glasser v. United States, 315 U.S. 60, 70 (1942)

* On The Definition of “Income”.

Eisner vs. Macomber, “In order, therefore, that the clauses cited from article 1 of the Constitution may have proper force and effect, save only as modified by the amendment, and that the latter also may have proper effect, it becomes essential to distinguish between what is and what is not 'income,' as the term is there used, and to apply the distinction, as cases arise, according to truth and substance, without regard to form. Congress cannot by any definition it may adopt conclude the matter, since it cannot by legislation alter the Constitution, from which alone it derives its power to legislate, and within whose limitations alone that power can be lawfully exercised.” In addition, Ballard v. US states that the IRC does not define the word “income”.

UNITED STATES of America v. Jack BALLARD, 535 FEDERAL REPORTER, 2d SERIES, page 400...
 "page 404..... "The general term "income' is not defined in the Internal Revenue Code"

* On Willfully Violating A Law.

United States v. Bishop, 412 U.S. 346,  361:: “This longstanding interpretation of the purpose of the recurring word "willfully" promotes coherence in the group of tax crimes. In our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law. The Court has said, ‘It is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the [412 U.S. 346, 361] exercise of reasonable care.’ Spies, 317 U.S., at 496 . Degrees of negligence give rise in the tax system to civil penalties. The requirement of an offense committed "willfully" is not met, therefore, if a taxpayer has relied in good faith on a prior decision of this Court. James v. United States, 366 U.S., at 221 -222. Cf. Lambert v. California, 355 U.S. 255 (1957). The Court's consistent interpretation of the word "willfully" to require an element of mens rea implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers.”

* On Pocket Commissions from IRS agent’s handbook;
[1.16.4] 3.1 (02-19-1999)
Authorized Use
1.Pocket commissions will be issued only to those employees who are required to present proof of their authority in the performance of their official duties. With the exception of their use by Inspection, pocket commissions are primarily intended to identify Service personnel to the public when dealing with tax matters. They will not be issued to employees merely to identify themselves for transaction of routine business. Pocket commissions will only be displayed as prescribed in 3.2 of this Chapter. Misuse of pocket commissions is a violation of the Rules of Conduct and may be a violation of Federal Law (18 U.S.C. 499). 
2.Pocket commissions are categorized as either "enforcement" or "nonenforcement." Enforcement commissions conform to the format prescribed by the Department of Treasury for Treasury Law Enforcement Officers and may be issued only to individuals in the 1811 series, Special Agents (Criminal Investigation) and Inspectors (Internal Security). Nonenforcement pocket commissions are those issued to all other authorized employees.
3.In the upper right hand corner of each commission is a line for the office code. This should be the geographic code of the issuing office (the same code used on ID cards). Each commission will have a serial number with the prefix IR and the suffix "E" on enforcement commissions and "A" on nonenforcement commissions.

Title 28 - Habeas Corpus
Sec. 2255. Federal custody; remedies on motion attacking sentence
 
-STATUTE- 

 A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.  If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

* On Necessity of Criminal Charges Being Without Ambiguity. 

EVANS v. U S, 153 U.S. 584 (1894):
“A rule of criminal pleading which at one time obtained in some of the circuits, and perhaps received a qualified sanction from this court in U. S. v. Mills, 7 Pet. 138, that an indictment for a statutory misdemeanor is sufficient if the offense be charged in the words of the statute, must, under more recent decisions, be limited to cases where the words of the statute themselves, as was said by this court in U. S. v. Carll, 105 U.S. 611 , 'fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.' The crime must be charged with precision and certainty, and every ingredient of which it is composed must be accurately and clearly alleged. U. S. v. Cook, 17 Wall. 174; U. S. v. Cruikshank, 92 U.S. 542 , 558. 'The fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent.' U. S. v. Carll, 105 U.S. 611 .”

* On Written Laws.

In Boyd v US, 116 US 616 (1886), the court observed the succinct statement by Lord Camden: "If it is law, it will be found in the books; if it is not to be found there, it is not law." id 627. "

* On Void Judgment.
"A judgment rendered in violation of due process is void." World Wide Volkswagen v Woodsen, 444 US 286, 291 (1980); National Bank v Wiley, 195 US 257 (1904); Pennoyer v Neff, 95 US 714 (1878).

COUNTIES AND MUNICIPALITIES
* On County’s authority.
Tulsa Exposition and Fair Corp. v. Board of County Commissioners, 468 P.2d 501 (Ok. 1970): "Counties have only such authority as is granted by statute [cites omitted]. The Board of County Commissioners in exercising corporate powers is limited to those fields expressly assigned to such subdivisions of the state by the legislature [cites omitted]. Public officers possess only such authority as is conferred upon them by law and such authority must be exercised in the manner provided by law," 468 P.2d, at 508.

*On The Term “LAW”.
Fennell v Common Council of Bay City, 36 Mich 186, 190 (1877) and Delta County v City of Gladstone, 305 Mich 50, 8 NW2d 908 (1943). “The term law, as defined by the elementary writers, emanates from the sovereignty and not from its creatures. The legislative power of the state is vested in the state legislature, and their enactments are the only instruments that can in any proper sense be called laws.”

* On Liability Of County or Municipality.
MONELL v. NEW YORK CITY DEPT. OF SOCIAL SERVICES, 436 U.S. 658 (1978): “Held: 
1. In Monroe v. Pape, supra, after examining the legislative history of the Civil Rights Act of 1871, now codified as 42 U.S.C. 1983, and particularly the rejection of the so-called Sherman amendment, the Court held that Congress in 1871 doubted its constitutional authority to impose civil liability on municipalities and therefore could not have intended to include municipal bodies within the class of "persons" subject to the Act. Re-examination of this legislative history compels the conclusion that Congress in 1871 would not have thought 1983 constitutionally infirm if it applied to local governments. In addition, that history confirms that local governments were intended to be included [436 U.S. 658, 659] among the "persons" to which 1983 applies. Accordingly, Monroe v. Pape is overruled insofar as it holds that local governments are wholly immune from suit under 1983. Pp. 664-689. 
2. Local governing bodies (and local officials sued in their official capacities) can, therefore, be sued directly under 1983 for monetary, declaratory, and injunctive relief in those situations where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. In addition, local governments, like every other 1983 "person," may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such custom has not received formal approval through the government's official decision-making channels. Pp. 690-691. 

PEMBAUR v. CINCINNATI, 475 U.S. 469 (1986):
1. The "official policy" requirement of Monell was intended to distinguish acts of the municipality from acts of the municipality's employees, and thereby make clear that municipal liability is limited to actions for which the municipality is actually responsible. Monell held that recovery from a municipality is limited to acts that are, properly speaking, "of the municipality," i. e., acts that the municipality has officially sanctioned or ordered. With this understanding, it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances. If the decision to adopt a particular course of action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly. Pp. 477-481. 
2. It was error to dismiss petitioner's claim against the county. Ohio law authorizes the County Sheriff to obtain instructions from the County Prosecutor. The Sheriff followed the practice of delegating certain decisions to the Prosecutor where appropriate. In this case, the Deputy Sheriffs received instructions from the Sheriff's Office to follow the orders of the County Prosecutor, who made a considered decision based on his understanding of the law and commanded the Deputy Sheriffs to enter petitioner's clinic. That decision directly caused a violation of petitioner's Fourth Amendment rights. In ordering the Deputy Sheriffs to enter petitioner's clinic to serve the capiases on the employees, the County Prosecutor was acting as the final decisionmaker for the county, and the county may therefore be held liable under 1983. Pp. 484-485. 

* On Serving a Defendant with Subpoena.

PENNOYER v. NEFF, 95 U.S. 714 (1877):
“Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale. Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability.”

* On Arraignments.

CRAIN v. U S, 162 U.S. 625 (1896):

According to Sir Mattew Hale, the arraignment consists of three parts, one of which, after the prisoner has been called to the bar, and informed of the charge against him, is the* [162 U.S. 625, 638]   'demanding of him whether he is guilty or not guilty; and, if he pleads not guilty, the clerk joins issue with him cul. prist, and enters the prisoner's plea. Then he demands how he will be tried. The common answer is, 'By God and the country,' and thereupon the clerk enters pro. se, and prays to God to send him a good deliverance.' 2 Hale, P. C. 219. So, in Blackstone: 
'To arraign is nothing else but to call the person to the bar of the court to answer the matter charged upon him in the indictment.' 'After which [after the indictment is read to the accused] it is to be demanded of him whether he is guilty of the crime whereof he stands indicted, or not guilty.' 4 Bl. Comm. pp. 322-341. Chitty says: 'The proper mode of stating the arraignment on the record is in this form: 'And being brought to the bar here in his own proper person, he is committed to the marshal,' etc. And being asked how he will acquit himself of the premises (in case of felony, an of high treason in case of treason) above laid to his charge, saith, etc. If this statement be omitted, it seems the record will be erroneous.' 1 Chit. Cr. Law,419.

* On Rules Being Used Against the Defendant.

"There is something specially repugnant to justice in using rules of practice in such a manner as to (prevent a defendant) from defending himself, especially when the professed object of the rules so used is to provide for his defense."  Faretta v. California, 422 U.S. 806, 822-823 (1975).

JURISDICTION
* On Jurisdiction of Courts.

"...jurisdiction of the Courts of the United States means a law providing in terms of revenue; that is to say, a law which is directly traceable to the power granted to Congress by '8, Article I, of the Constitution, 'to lay and collect taxes, duties, imposts, and excises.'"  US v Hill, 123 US 681, 686 (1887).

“Where jurisdiction is challenged, it must be proven… The law requires proof of jurisdiction to appear on the proceedings… Jurisdiction may never be assumed, it must be proven.” Hagen v. Lavine, 415 US 528, at 533, 39 L.ed. 577, 94 S Ct, 1372 (N.Y. March 28, 1974).

“The question of Jurisdiction in the court either over the person, the subject matter or the place where the crime was committed can be raised at any stage of a criminal proceedings; it is never presumed but must be proved; and it is never waived by the defendant.” United States v. Roger, 23 F. 658 (W.D. Ark. 1885).

“Jurisdiction once challenged cannot be assumed and must be decided.” State of Maine v. Thiboutot, 448 US 1, 100 S. Ct. 2502 (1980).

* On Legal Names.
“Complaint must identify at least one plaintiff by true name; otherwise no action has been commence.” Roe v New York (1970, SD NY) 49 FRD 279, 14 FR Serv 2d 437, 8 ALR Fed 670.
The reasoning behind a true name is that the United States cannot pick up a pencil or sneeze. The United States cannot therefore write a complaint. All activities carried on by a governmental agency is carried out by its agents and actors.
The definition of a legal name in Black’s Law Dictionary is: “A person’s full name as recognized in law, consisting of a first name (usu. given at birth or at a baptism or christening) and a last name (usu. a family name). 

* On Right To Counsel and Court Unable To Proceed.

JOHNSON v. ZERBST, 304 U.S. 458 (1938):
“When this [304 U.S. 458, 468] right is properly waived, the assistance of counsel is no longer a necessary element of the court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court's jurisdiction at the hearing of trial may be lost 'in the course of the proceedings' due to failure to complete the court-as the Sixth Amendment requires-by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void.”

“He requires the guiding hand of counsel at every step in the proceedings against him. The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” [304 U.S. 458, 464]

* On Supremacy of Supreme Court decisions.

MUGLER v. KANSAS, 123 U.S. 623 (1887):
“But, as stated by the present learned judge for the Eighth circuit, 'when a proposition has once been decided by the supreme court, it can no longer be said that in it there still remains a federal question.' State v. Bradley, 26 Fed. Rep. 289.”

* On Citizen’s rights.

HALE v. HENKEL. 201 U.S. 43 at 89 (1906):
"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  incriminate 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 (Common Law)  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.

"He owes nothing to  the  public  so long  as he  does not trespass upon their rights."

ASSESSMENTS
* On Assessments, Signature, and Certification.
Internal Revenue Manual 3(17)(63)(14).1:
Account 6110 Tax Assessments
(2) All tax assessments must be recorded on Form 23C Assessment Certificate. The Assessment Certificate must be signed by the Assessment Officer and dated. The Assessment Certificate is the legal document that permits collection activity…
Internal Revenue Manual 3(17)(46)2.3:
Certification
(1) All assessments must be certified by signature of an authorized official on Form 23-C, Assessment Certificate. A signed Form 23C authorizes issuance of notices and other collection action…
(2) Some assessments are prescribed for expeditious action as and be certified on a daily basis. These assessments will require immediate preparation of Form 23C from RACS… 
Form 23C is described in Document 7130, IRS Printed Product Catalog as:
23C - Assessment Certificate-Summary Record of Assessments
Form 23C is used to official assess tax liabilities. The completed form is retained in the Service Center case file as a legal document to support the assessment made against the taxpayer. This status notice is reissued to update the status notice file. TR:R:A Internal Use
CURLEY v. U.S., Cite as 791 F. Supp 52 (E.D.N.Y. 1992):
“… [5] Plaintiff relies heavily on Brafman v. United States, 384 F.2d 863 (5th Cir. 1967), where an assessment was invalidated due to the lack of a signature on the 23C Form. This defect, however, was a significant violation of the regulation…”
“…A signature requirement protects the taxpayer by ensuring that a responsible officer has approved the assessment…”
764 FEDERAL SUPPLEMENT Page 315
BREWER v. U.S., Cite as 764 F.Supp. 309 (S.D.N.Y. 1991)
“…However, there is no indication in the record before us that the "Summary Report of Assessments", known as Form 23C, was completed and signed by the assessment officer as required by 26 CFR § 301.6203-1.3 Nor do the Certificates of Assessments and Payments contain 23C dates which would allow us to conclude that a Form 23C form was signed on that date. See United States v. Dixon, 672 F. Supp. 503, 505-506 (M.D.Ala.1987). Thus we find that the plaintiff has raised a factual question concerning whether IRS procedures were followed in making the assessments…”
“This regulation provides, in relevant part, that "[t]he assessment shall be made by an assessment officer signing the summary record of assessment…”
Citing Huff v. United States, 10 F.3d 1440 (9th Cir. 1993), the court explained that Form 4340 Certificates of Assessment and Payment, together with Form 23C Summary Records of Assessment, demonstrate that a valid assessment was made.
IMMUNITY
* On Immunity.
“The rule of governmental immunity as to all political subdivisions of government is hereby abrogated as it has heretofore been abrogated as to municipal corporations, i.e., cities. No longer is the defense of governmental immunity for tort liability available, irrespective of whether the involved political subdivision is functioning ‘governmentally’ or ‘proprietarily’.” MYERS v GENESSEE COUNTY, 375 Mich 1, 1965.

“The principal of sovereign immunity is not one which allows the sovereign to continue to inflict injury....  [sovereign immunity] does not give the sovereign the right to totally disregard the effect of it¹s actions upon the public.”² Shaw v. Salt Lake County, 224 P2d 1037.  

“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 (1960).

“The general rule is that a qualified immunity defense fails once a plaintiff has alleged that defendants have violated the plaintiff's clearly established rights. Occasionally, however, objectively "extraordinary circumstances" are present which combine to justify a grant of immunity nonetheless.” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).

PROPERTY RIGHTS
* On Property Rights.
“Rights of property cannot be so arbitrarily destroyed or injured. Yates v. Milwaukee, 10 Wall. 497, 504, 505; Hutton v. City of Comden, 39 N. J. Law, 122, 129, 130; Cooley, Const. Lim. (5th Ed.) 110, and notes, 446; Lowry v. Rainwater, 70 Mo. 152; Jeck v. Anderson, 57 Cal. 251. Such a legislative determination would also be void, because, where the fact of injury to public health or morals did not exist, as here, it would be a violation of the absolute right of the citizen to follow such pursuit as he sees fit, provided it be not in fact 'injurious to the community.' People v. Marx, 99 N. Y. 386, 2 N. E. Rep. 29, and cases cited. Such legislation is unconstitutional.” Quintini v. City of Bay St. Louis, 1 South. Rep. 625, 628.

“The federal Constitution and laws passed within its authority are by the express terms of that instrument made the supreme law of the land. The Fourteenth Amendment protects life, liberty, and property from invasion by the states without due process of law. Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.” Holden v. Hardy, 169 U.S. 366, 391 , 18 S. Sup. Ct. 383. 

“Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land. 1 Blackstone's Commentaries (Cooley's Ed.) 127.” Buchanan v. Warley, 245 U.S. 60, 74

MCL 600.2907(a) concerns the liability of a person who encumbers an owner’s property.

* On Unconsitutional Court Rule.

Rule 28A(i) expands the judicial power beyond the limits set by article III by allowing us complete discretion to determine which judicial decisions will bind us and which will not. Insofar as it limits the precedential effect of our prior decisions, the Rule is therefore unconstitutional.  Anastasoff v. United States of America 223 F.3d 898 (8th Cir. 2000).

* On Suing Judges.

Pacific Insur. V Soule, 74 USC 433, (1868).
* On Suing Judges for lack of subject matter jurisdiction.
"An exception to the rule of judicial immunity exists which is founded on a distinction between excess of jurisdiction and the absence of all jurisdiction  ... where an act is done in the clear absence of all jurisdiction and this is known to the judge there is no immunity. Johnson v. MacCoy, 278 F2d 37 (9th  Cir., 1960); Kenney V. Fox, 232  F 2d 288 ..." Rhodes v. Houston; 202 Fed Supp. 624

An earlier case stated this liability in a slightly different way: "Where there is clearly no jurisdiction over the subject matter, any authority exercised is usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible."  Bradley  v. Fisher; 13  Wall 335, 352