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No Saving Clause Att: Pennsylvanians

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  • Gary -D
    Moderator/Bear: I looked up a lot of these cases and found at least one that does not say what it is quoted as saying. Let this post serve as inspiration, but
    Message 1 of 1 , May 28, 2011
      Moderator/Bear: I looked up a lot of these cases and found at least one that does not say what it is quoted as saying. Let this post serve as inspiration, but use the citations and quotations with caution.

      Constitution of Pennsylvania 1776 - 1790 - 1838 - 1874

      Constitution of 1873 amended 1901 and 1909

      That no inconvenience may arise from the changes in the Constitution of the Commonwealth, and in order to carry the same into complete operation, it is hereby declared, that:

      Section 1. This Constitution shall take effect on the first day ofJanuary, in the year one thousand eight hundred and seventy-four, for all purposes not otherwise provided for therein.

      Section 2. All laws in force in this Commonwealth at the time ofthe adoption of this Constitution, not inconsistent therewith, and all rights, actions, prosecutions and contracts, shall continue as if this Constitution had not been adopted.

      All carried over the criminal laws except the 1968 !

      http://www.duq.edu/law/pa-constitution/constitutions/1968.cfm#amendments

      Search away I did and found not.

      Best Gary

      Savings Clause Class Action Issue

      STATE CONSTITUTIONAL HISTORY

      The Pennsylvania Constitution of 1776 Delegated Power to the Legislature to Enact Criminal Statutes, and to Prosecute and Imprison under Section Thirty-Eight (38) and Thirty-Nine (39). When the Pennsylvania Constitution was rewritten in 1790, Sections (38) and (39) were not included in the 1790 Constitution. But, a Saving Clause in Section one (1) of the 1790 Constitution did save all Statutes, Laws and Prosecutions from the 1776 Constitution. The Pennsylvania Constitution was rewritten again in 1838 and in 1874, both with Saving Clauses to keep all Criminal Statutes, Laws and Prosecutions Lawful. In 1968 the Pennsylvania Constitution was rewritten again, and This Time There Was NO SAVING CLAUSE TO carry over the Previous Criminal Statutes, Laws and Prosecutions. GROUND ONE (1)

      1) Petitioner was deprived his liberty and property without due process and equal protection of law, in violation of his Fifth (5TH), Sixth (6TH), and Fourteenth (14TH) amendment rights under the United States Constitution, when the Commonwealth of Pennsylvania prosecuted and imprisoned petitioner without State Constitutional capacity/authority. (LACK OF SAVING CLAUSE) Petitioner incorporates by reference the above stated "State Constitutional History," as if fully set forth herein:

      1a)Prosecution of petitioner for felony or misdemeanor offenses is prohibited because the Pennsylvania Constitution of 1968 has no section, article, amendment or saving clause which empowers PENNA with (Constitutional Capacity) to prosecute crimes or to incarcerate. See, DRED SCOTT V. STANFORD, 19 Howard, 60 U.S. 393 at 508-09 (1956); (Constitutional Capacity) only through State Constitutional provisions, and the Pennsylvania 1968 Constitution has NO such provisions.

      1b) "The Constitution was not, therefore necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in state institutions, for the POWER OF THE STATES DEPEND UPON THEIR OWN CONSTITUTION: and the people of every state had the right to MODIFY AND RESTRAIN THEM ACCORDING TO THEIR OWN VIEWS OF THE POLICY OR PRINCIPLE." MARTIN v. HUNTERS LESSEE, 14 U.S. 304 at 325 (1816) (EMPHASIS ADDED)

      1c) In COMMONWEALTH v. BANGS, 393 A2d 720,721 (Pa.Super. 1978), the Superior Court Ruled: "it is settled that there is no vested right in the Commonwealth, existing after the repeal of a criminal statute..."

      The Court goes on in (FN2],

      "With respect to the absence of a saving clause, we Note that Pennsylvania is among the handful of States PRESENTLY WITHOUT A GENERAL SAYING CLAUSE, APPLICABLE TO CRIMINAL PROSECUTION."

      1d) In the instant case, nothing in the Pennsylvania Constitution of 1968 empowered the State to prosecute Felony or Misdemeanor Offenses. The Dicta in [FN2] from BANGS, Supra, Notified the Pennsylvania Commonwealth of such omission in 1978. Therefore, the Commonwealth has had some Thirty (30) years to "Modify and restrain..., according to their own views of the policy and principle," MARTIN, Supra.

      The Commonwealth Knowingly and Intelligently chose not to address the issue, (Lack of Constitutional Authority Applicable to Criminal Prosecution).

      NOW, after Thirty (30) years since the Notice from BANGS, Supra., petitioner suffers unconstitutional deprivation of liberty and property as a direct result of the Commonwealth's dereliction of duty. Petitioner has been DENIED his Fifth (5), Sixth (6), and Fourteenth (14) amendment protections under the United States Constitution by the Commonwealth of Pennsylvania. GROUND (2)

      2) Petitioner's Fifth (5), Sixth (6), and Fourteenth (14) amendment rights to due process and equal protection were violated when the Commonwealth of Pennsylvania Arrested, Prosecuted, and Imprisoned petitioner using Repealed, Unlawful, Null and Void Statutes.

      2a) Petitioner incorporates by reference the above stated "State Constitutional History," as if fully set forth herein: 2b) Petitioner contends that all criminal law, statutes and amendments pertaining to Felony and Misdemeanors, and the Power to imprison from the 1874 Pennsylvania Constitution were repealed and void, having NO further Force or Effect.

      2c) By the precepts of Constitutional Jurisprudence, the Statutes stemming from the 1874 Constitution, which petitioner was prosecuted under, are NO longer Viable or Binding upon persons once the 1968 Constitution was Ratified without a "Saving Clause." In case a statute or Constitution is repealed or rendered inoperative, no further proceedings can be then had to enforce it in pending prosecutions unless competent authority has kept it alive for that purpose.

      2d) Without a saving clause in the Pennsylvania Constitution of 1968, the only power to prosecute and imprison the Commonwealth could claim, would have to stem from the prior 1874 Constitution. The prior Constitution having been rendered inoperative as concerns "Criminal Prosecution," PETITIONER AVERS THAT THE Commonwealth of Pennsylvania prosecuted petitioner using repealed, invalid and/or inoperative authority.

      GROUND (3)

      3) Petitioner's Fifth (5), Sixth (6), and Fourteenth (14) amendment right to due process and equal protection under the United States Constitution were violated when, without Subject Matter Jurisdiction the Commonwealth of Pennsylvania prosecuted, sentenced, and imprisoned petitioner.

      Petitioner incorporates by reference the above stated "State Constitutional History," as if fully set forth herein:

      3a) Petitioner avers that any Judgment and/or Sentence rendered by the Court of Common Pleas, was done so, based on charges prosecuted by the County Prosecutors Office. Said Office acted under the power or lack thereof, Granted by Pennsylvania Constitution of 1968. Said Constitution Grants NO such Power or Authority.

      Therefore, “unless [any] Court can show, once challenged, the trial Court's Jurisdiction over the Subject Matter and person it supposed to bind thereat, it's Judgment and Jurisdiction are void." ZENKEE V. ZENKEE, 72 NW 2d 809 (1955).

      A Court does not have the power, by Judicial Fiat to extend it's Jurisdiction over matters beyond the scope of authority Granted by it's creators." STOLL Y v._GOTTLIEB, 305 U.S. 165, 171 (1938).

      3b)Furthermore, unless the County District Attorney can show that his office had authority to bring petitioner before the Court to face or answer for any Criminal Charges (within the Pennsylvania Constitution of 1968), the Court could have NO Jurisdiction, Subject Matter or otherwise. For a Court to allow or participate in the prosecution or imprisonment of petitioner, using statutes and/or codes that the Court is fully aware of, or has reason to believe, maybe unconstitutional, null and void, and without any lawful force or effect, would be to deprive petitioner of the most basic and fundamental rights, privileges and immunities that a Court has sworn to faithfully uphold and defend by its Oath of Office.

      3c) Where the Court has NO Jurisdiction of either the person/defendant, or the Subject Matter involved, he is not to be bound under that Court's Judgment, and the matter must be Dismissed and the party is to be discharged by the Writ of Habeas Corpus. See, GEYGER V. STOY, 1 U.S. 135 (1785). Therefore, any Pennsylvania Court Lacked Jurisdiction over petitioner's case and Dismissal and Discharge are Warranted.

      GROUND (4)

      4) Petitioner's Fifth (5). Sixth (6), and Fourteenth (14) amendment rights to due process and equal protection under the United States Constitution were violated when the Commonwealth of Pennsylvania did enact and enforce new Criminal Laws which abridged petitioner's privileges and immunities under the United States Constitution. Petitioner incorporates by reference the above stated "State Constitutional History," as if fully set forth herein:

      4a) The Commonwealth has NO inherent power to enact Criminal Statutes or Codes except by provisions in the State Constitution of 1968, providing for a Criminal statute or code. See, MARTIN V. LESSEE, 14 U.S. 304,326 (1816). Wherefore, petitioner is Immune from having to answer for any Criminal Charges stemming from Statutes that have NO basis for existence anywhere in the Constitution of 1968.

      4b) The Commonwealth has NO Constitutional Capacity to Legislate Criminal STATUTES OR CODES, IF THE State's Constitution claims NO such power. See, LESSEE OF POLLAND V. HAGAN, 44 U.S. 212 (1845); DRED SCOTT V. STANFORD, 60 U.S. 393, at 508-09 (1856). There is NO PENAL STATUTE OR CODE PROVIDED FOR IN ANY ARTICLE, CLAUSE, SECTION OR AMENDMENT in the Pennsylvania State Constitution of 1968. Therefore, as written the Commonwealth can exercise NO Criminal Jurisprudence thru it's State Constitution.

      4c) In CLINTON V. NEW YORK, the Supreme Court gives us guidance as to the Constitutionally excepted method used for enactment of Statutes. The Court Held: "Familiar Historical Materials provide abundant support for the conclusion that the power to enact statutes may only, ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.'" WILLIAM CLINTON et al. v. CITY OF NEW YORK et al, 118 S.Ct. 2091, 2093 (U.S. Dist. Col. 1998).

      4d) Petitioner states that STATE CONSTITUTIONAL AUTHORITY IS THE VERY CORNER STONE OF THIS "SINGLE, FINELY WROUGHT AND EXHAUSTIVELY CONSIDERED PROCEDURE."

      4e) In HARRISBURG SCHOOL DISTRICT V. ZOGBY, the Pennsylvania Commonwealth Court gives some enlightenment on the subject of unconstitutional enactments. Here the Court Held: "...We note that the merits of the legislative scheme or motive behind its passage are irrelevant. The touchtone of legislation is not that it is laudable or even that it reflects the public will, but that it is also within the limits of our Constitution."

      Also; "we do not believe the intelligent public sentiments of the ... Commonwealth demands the accomplishment of a lawful purpose by unlawful means. UNCONSTITUTIONAL STATUTES ARE THE VERY ESSENCE OF LAWLESSNESS. Even if unanimous public sentiment of the [State] demanded the enforcement of the act, we could not heed it. Public sentiment properly may move Court's in matters wholly discretionary, but such sentiment can have no place in the interpretation of a Constitution." HARRISBURG SCHOOL DISTRICT et Al V. CHARLES B. ZOGBY et Al, 789 A.2d 797,801 (Pa. Comwlth. 2002) (EMPHASIS ADDED)

      4f) Again, in HARRISBURG SCHOOL DISTRICT V. HICKOK, the PENNA Commonwealth Court speaks to the UNLAWFUL Enactment of Statutes. In HICKOK, the Court Held: “That which is unconstitutionally prescribed may not be circumvented, whether for good cause or bad. The framers of the Constitution of 1873 did not include with the prohibition on special legislation a caveat that would be acceptable for good cause shown." HARRISBURG SCHOOL DISTRICT v. HICKOK, 762 A.2d 398,410 (Pa.Comwlth. 2000)

      4g) In HOWARD V. BUGBEE, the United States Supreme Court addressed the nullity of an UNCONSTITUTIONAL STATUTE. Petitioner believes much of this holding applies to the instant case. Here the Court held: "an unconstitutional statute is no more obligatory on a state than on Federal Tribunals. It is absolutely void to all intent and purpose. It cannot, therefore, be said that such a statute controlled the [Prosecution and Imprisonment) made under it. The (Petitioner) was vested, by the (Federal Constitution], with full and absolute [Rights and Protections], and cannot be divested by the terms of a statute which the State had NO Constitutional Authority to enact." HOWARD V. BUGBEE, 65 U.S. 461,462 (U.S. Ala. 1860)

      CONCLUSION

      Petitioner realizes that for this Court to Grant a Writ of Habeas Corpus under these conditions, may very well be distasteful to say the least. Yet, the U.S. Supreme Court in LOPEZ, stated unequivocally, its duty to uphold the Constitution of the United States by stating: "We cannot avoid the obligation to draw lines, often close and difficult lines" in adjudicating Constitutional Rights. U.S. v. LOPEZ, 115 S.Ct. 1624, 1640 (1995). 2/10/10;rev.4/19/10
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