Property Taxes 6.0, Are you really a conservative or a socialist claiming to be a Conservative?

THE CONSTITUTIONAL TAXING POWER OF THE STATE
My people are destroyed for lack of knowledge…Hosea 4:6
The scope of this paper is limited to A.R.S. 42-12003

The Supremacy of the National Constitution

The Arizona Constitution:
The Arizona Constitution at Article 2, Section 3 states: “The Constitution of the United States is the supreme law of the land.”

The Constitution of the United States:
Article VI, Section 2, of the Constitution of the United States of America states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …shall be the Supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Supreme Court Decision:
The Supreme Court affirms Article VI of the Constitution of the United States of America in the following decisions:

McCulloch v. Maryland, 17 Wheat U.S. 316, 4L. Ed. 579 (1819) “But this question is not left to mere reason; the people have, in express terms, decided it by saying, [p406] ‘this Constitution, and the laws of the United States, which shall be made in pursuance thereof,’ ‘shall be the supreme law of the land,’ and by requiring that the members of the State legislatures and the officers of the executive and judicial departments of the States shall take the oath of fidelity to it. The Government of the United States, then, though limited in its powers, is supreme, and its laws, when made in pursuance of the Constitution, form the supreme law of the land, ‘anything in the Constitution or laws of any State to the contrary notwithstanding.’…This great principle is that the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective States, and cannot be controlled by them…. But the very terms of this argument admit that the sovereignty of the State, in the article of taxation itself, is subordinate to, and may be controlled by, the Constitution of the United States.”

Supreme Court Decisions:
Specifically, in relation to the constraints the National Constitution has imposed on the several States in regards to taxation the Supreme Court has ruled:

Ward v. Maryland, 79 U.S. 418 (1870) “Comprehensive as the power of the states is to lay and collect taxes and excises, it is nevertheless clear, in the judgment of the Court, that the power cannot be exercised to any extent in a manner forbidden by the Constitution;…”

Bary v. United States , 273 US 128 (1927): “Then a constitution should receive a literal interpretation in favor of the Citizen, is especially true, with respect to those provisions which were designed to safeguard the liberty and security of the Citizen in regard to person and property.”

Beyond all doubt the State of Arizona recognizes the Constitution of the United States as the “supreme law of the land,” and as the Supreme Court has affirmed that the National Constitution controls all State Constitutions and State legislation, it must follow then that nothing within the Arizona Constitution or within the Arizona Revised Statutes can be repugnant to the National Constitution. Specifically, pursuant to the subject of taxation the State of Arizona can neither create new classes of taxation nor change nor disregard the governing characteristics of each class of taxation.

THE TWO GREAT CLASSES OF TAXATION: DIRECT AND INDIRECT

There are but two classes of taxation expressed within Article I of the Constitution of the United States of America. (There is no third class.)

Article I, Section 2, Clause 3: “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a number of years, and excluding Indians not taxed, three fifths of all other persons.”

Direct taxes are mentioned again within Article I, Section 9, Clause 4: “No capitation or other direct, Tax shall be laid, (unless in Proportion to the Census or enumeration herein directed to be taken).”

Article I, Section 8, Clause 1: “The Congress shall have power to lay and collect taxes’ duties, imposts and excises to pay debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”
Duties, imposts and excise taxes are later identified as indirect taxes. (Brushaber v. Union Pacific R. CO., 240 U.S. 1 (1916) quoting Pollock v. Farmers Loan & T. Co. “In the matter of taxation, the Constitution recognizes the two great classes of direct and indirect taxes…”)

Therefore, pursuant to Article I of the National Constitution there are direct taxes subject to apportionment, and indirect taxes which must be uniform throughout the several States.

THE DIRECT TAX

What falls under the category of a direct tax? A direct tax is a tax on you, (a head or capitation tax), or a tax on your land/real estate, or a tax on your personal property.

Hylton v. U.S., 3 US 171 (1796) “The Constitution declares, that a capitation tax is a direct tax; and both in theory and practice, a tax on land is deemed to be a direct tax…”

Knowlton v. Moore,178 US 41 (1900) “Whether direct tax in the sense of the Constitution comprehend any other tax than a capitation tax and a tax on land, is a question not absolutely decided…”

Pollock v. Farmer’s Loan & Trust Co. 158 U.S. 601 (rehearing) (1895) “The power to tax real and personal property and the income from both, there being an apportionment, is conceded: that such tax is a direct tax in the meaning of the Constitution has not been, and, in our judgment, cannot be successfully denied…” (Note that in the Pollock’s decision a tax on personal property is also considered a direct tax; and, therefore, is subject to apportionment.)

Eisner v. Macomber 252 U.S. 189, 205 (1920) “ Be that as it may, it is concluded in all these cases from that of Hylton to that of Springer, that taxes on land are direct taxes…”

Pursuant to the Constitution of the United States of America and the preceding Supreme Court decisions a tax on land/real estate or personal property must be considered a direct tax and is therefore subject to apportionment.

So the question becomes what is apportionment?

Apportionment: “Is a dividing of a rent into parts, according as the land out of which it issues is divided among two or more.” (Tomlin’s Law Dictionary 1811) For example, if two men were renting 100 acres of land, and one man utilized 20 of the 100 acres and the second man utilized the remaining 80 acres of the land the first man would pay 20% of the rent and the second man would pay 80% of the rent.

For the State of Arizona to impose a tax on land/ real estate or personal property, the State would first have to determine the total amount of tax that had to be raised. Then the State would have to apportion (divide by proportion) that total amount among the people who owned property.

The County of Navajo does not apportion the “property tax” on property identified as class three properties by Arizona Revised Statute 42-12003. Therefore, pursuant to the National Constitution and numerous Supreme Court decisions the Arizona “property tax” is lacking the Constitutional requirement of apportionment mandated for a tax on land/real estate or personal property. Further, as the Supreme Court has ruled, repeatedly, that a tax on land/real estate or personal property must be imposed by apportionment as a direct tax, the Arizona “property tax,” imposed upon class 3 properties (A.R.S. 42-12003), to avoid grave constitutional doubt, cannot be a tax imposed upon land/real estate or personal property.

THE INDIRECT TAX

Article I, Section 8, Clause 1 identifies three (and only three) types of indirect taxes. These are: imposts, duties, and excise taxes. As the Arizona “property tax” is not imposed by apportionment as a direct tax, it must then be imposed as an indirect tax. This is confirmed by the Arizona Constitution.

The Arizona Constitution:
The Arizona Constitution at Article 9, Section 1 states: “The power of taxation shall never be surrendered, suspended or contracted away. Except as provided by section 18 of this article, all taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax…”

Note that the Arizona Constitution requires that all taxes on property must be uniform. You will recall that Article I, Section 8, Clause 4 of the National Constitution requires that all indirect taxes must be uniform. Therefore, as uniformity is a requirement of all indirect taxes and not direct taxes, there is no doubt that the “property tax” is and must be an indirect tax; and, therefore, cannot be a tax imposed on real or personal property. It is irrelevant that the State of Arizona has termed this tax a “property tax.” Remember, that a tax imposed upon land/real estate or personal property must be imposed as a direct tax by and through apportionment.

If the Arizona “property tax” is to withstand a Constitutional challenge the “property tax” cannot be imposed upon the property itself, but upon something else that is associated with that property.

As previously stated, there are only three types of indirect taxes expressed within the National Constitution (Article 1, Section 8, Clause 1) these are: imposts, duties, or excise taxes. Therefore to determine whether the Arizona “property tax” imposed on class 3 properties (A.R.S. 42-12003) is an impost, duty or excise tax, the definition of each word must be examined.

Constitution of the United States:
The United States Constitution at Article I, Section 10, Clause 2 states: “No State shall, without the Consent of Congress, lay any Imposts or Duties on Imports or Exports…”

Therefore, pursuant to Article I of the National Constitution imposts and duties can mean a tariff on imported or exported goods, but sometimes words can have more than one legal meaning.

Imposts: “The tax received by the prince, for such merchandise as are brought into any haven within his dominions, from foreign nations.” (Tomlin’s Law Dictionary 1811)

Imposts: “A duty on imported goods or merchandise.” (Bouvier’s Law Dictionary 1878)

The two definitions of imposts noted above are nearly identical to the meaning expressed within the Constitution.

Therefore, pursuant to Article I, Section 10, Clause 2 of the United States Constitution and the legal definitions of impost it is obvious that an impost is a tariff imposed on goods entering and leaving a State, Country etc. Obviously, the Arizona “property tax” (A.R.S. 42-12003) is not an impost imposed upon land/real estate or personal property.

The next type of indirect tax to be examined is a duty.

Duties: “Sums payable on importing, exporting, or manufacturing an article as a tax. The word is most generally applied to taxes on imports and exports.” (A Compendious and Comprehensive Law Dictionary 1815)

Duties: “In its most enlarged sense, this word is nearly equivalent to taxes, embracing all impositions or charges levied on persons or things; in its more restrained sense, it is often used as equivalent to customs or imposts.” (Bouvier’s Law Dictionary 1878)

Customs Duty: “A tax levied on an imported or exported commodity; esp. the federal tax levied on goods shipped into the United States.” (Black’ Law Dictionary 2009)

Can the Arizona “property tax” (A.R.S. 42-12003) be considered a duty “in its most enlarged sense as expressed within Bouvier’s Law Dictionary 1878. No, it cannot. Remember the Supreme Court has ruled that a tax imposed on real or personal property is considered a direct tax and must be apportioned, while duties are within the class of taxation defined as indirect taxes and real and personal property cannot be taxed by and through an indirect tax.

Can the Arizona “property tax” be considered a duty in its more restrained sense? No, it cannot. Because, in its more “restrained sense” a duty is equivalent to a tariff imposed upon goods entering or leaving a State or Country; and, clearly, that is not what is being taxed by the Arizona “property tax.” Therefore, the Arizona “property tax” (A.R.S. 42-12003) cannot be considered a form of indirect tax expressed within the Constitution as a duty.

By process of elimination, the Arizona “property tax” (A.R.S. 42-12003) must be an excise tax. An excise tax is defined as:

Excise Tax: “A tax levied on the manufacture, sale, or consumption of a commodity, 2. “any of various taxes on privileges often assessed in the form of a license or other fee…” (findlaw.com)

Excise Tax: “A tax imposed on the performance of an act, the engaging in an occupation, or the enjoyment of a privilege.” (Black’s Law Dictionary, 6th Edition 1991)

The Courts have defined an excise tax as follows:

American Airways v. Wallace, 57 F.2d 877,880. “The term excise tax and privilege tax are synonymous. The two are often used interchangeably.”

People ex rel Atty Gen v. Naglee, 1 Cal 232; Bank of Commerce & T. Co. v. Senter, 149 Tenn 441 SW 144 “The obligation to pay an excise is based upon the voluntary action of the person taxed in performing the act, enjoying the privilege or engaging in the privilege which is the subject of the excise, and the element of absolute unavoidable demand is lacking.”

Flint v. Stone Tracy Co. 220 U.S. 107 (1911) “Excises are taxes laid upon the manufacture, sale or consumption of commodities within the country, upon licenses to pursue certain (licensed) occupations and upon corporate privileges; the requirement to pay such taxes involves the exercise of a privilege…”

Foster & C. Co. v. Graham, 154 Tenn. 412, 285 S.W. 570, 47 ALR 971. “Whether a tax is characterized in a statute imposing it as a privilege tax or an excise tax is merely a choice of synonymous words, for an excise tax is a privilege tax.”

Shannon v. Streckus Steamers, 279 Ky. 649, 131 S.W. 2d 833, 838. “An excise tax is often used synonymous with privilege or license tax.”

Consider the first definition of an excise tax noted above. Clearly, the Arizona “property tax” on class 3 properties (A.R.S. 42-12003) is not a tax on, “the manufacture, sale or the consumption of a commodity.”

Consider the second definition of an excise tax noted above. Clearly, the Arizona “property tax” on class 3 properties (A.R.S. 42-12003) is not a tax on, “the performance of an act, or the engaging in an occupation.”

After reading the legal definitions and the court cases cited above, and eliminating those definitions which obviously do not apply, we are left with the conclusion that the Arizona “property tax” imposed on class 3 properties (A.R.S. 42-12003) must be, in reality, a tax imposed upon some “privilege,” associated with land/real estate or personal property ownership.

The question then becomes is it a privilege for Citizens of the several States to acquire, own or enjoy land/real estate or personal property that has been identified as class 3 property (A.R.S. 42-12003) by the County of Navajo?

The Supreme Court and Federal Circuit Court Decisions:
The Supreme Court and lower Federal Courts have ruled that it is a right and not a privilege for Citizens of the several States to acquire, possess, enjoy and to defend property at law.

Corfield v. Coryell, 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. (1823) “The next question is, whether this act infringes that section of the constitution which declares that, ‘the citizens of each are entitled to all the privileges and immunities of the citizens in the several states?’ (Article IV, Section 2 National Constitution) We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several states which compose this Union from the time of their becoming free, independent and sovereign. What these fundamental principles are it would be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government, the enjoyment of life and liberty with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.”

Paul v. Virginia, 75 U.S. 168 (1869) “It was undoubtedly the object of the clause in question (Article IV, Section 2 National Constitution) to place the citizens of each State upon the same footing with citizens of the other States…it insures to them in other States the same freedom possessed by citizens of those States in the acquisition and enjoyment of property…”

Ward v. Maryland, 79 U.S. 418 (1870) “Attempt will not be made to define the words ‘privileges and immunities’ or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the Court. Beyond doubt those words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen…to acquire personal property; to take and hold real estate; to maintain actions in the courts of the state…”

Maxwell v. Dow, 176 U.S. 581 (1900) Quotes and affirms Corfield V. Coryell.

The Constitution of the United States:
What the Supreme Court has affirmed in the above Court decisions is that it is a right for the Citizens of the several States to acquire, possess (own) and enjoy property both real and personal. If necessary, the Citizen also has the right to defend his real and personal property at law. The Supreme Court has traced this right to Article IV, Section 2 of the Constitution of the United States of America. Article IV, Section 2 states: The Citizens of each State shall be entitled to all the privileges and Immunities of Citizens in the several States. Remember, the Arizona Constitution at Article 2, Section 3 states that the Constitution of the United States is the “supreme law of the land.”

Can the County of Navajo/State of Arizona convert a Right expressed within the National Constitution into a taxable privilege? NO!

The Supreme Court ruled in Murdock v. Penn. 319 US 105 (1943):
“A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution …Since the privilege in question is guaranteed by the Federal Constitution and exists independently of the states authority, the inquiry as to whether the state has given something for which it cannot ask a return, is irrelevant. No state may convert any secured liberty into a privilege and issue a license and a fee for it….A state may not impose a charge for the enjoyment of a right granted by the federal constitution. This tax is not a charge for the enjoyment of a privilege or benefit bestowed by the state. The privilege in question exists apart from state authority. It is guaranteed the people by the federal constitution.”

Pursuant to the Murdock decision neither the County of Navajo nor the State of Arizona can convert the Right of property ownership which is possessed by Citizens of the several States, and is expressed within and guaranteed by the National Constitution at Article IV, Section 2 into a privilege.

Further, the County of Navajo/State of Arizona has acquired no vested right to continue its unconstitutional taxation of Citizens of the several States who own class 3 properties. (A.R.S. 42-12003) U.S. v. Woodley, 726 F.2d 1328, 1338 (9th Cir. 1984): “A practice condemned by the Constitution cannot be saved by historical acceptance and present convenience.” Walz v. Tax Commission of New York City, 397 U.S. 664 at 678 (1970): “It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.” Regina v. Day, 9 Car. & P. 722: “Every consent involves a submission, but it by no means follows that a mere submission involves consent.”

In addition, the current unconstitutional taxation scheme executed and administered by the County of Navajo is not validated by the claim of economic necessity. Riley vs. Carter, 79 ALR 1018; 16 am.Jur. (2nd), Const. Law, Sect. 81: “Economic necessity cannot justify a disregard of Constitutional guarantee.” Watson vs. Memphis, 375 US 526: “Constitutional Rights cannot be denied simply because of hostility to their assertions and exercise; vindication of conceded Constitutional Rights cannot be made dependent upon any theory that it is less expensive to deny them than to afford them.” Slote vs. Examination, 112 ALR 660: “Disobedience or evasion of a Constitutional Mandate cannot be tolerated, even though such disobedience may, at least temporarily, promote in some respects the best interest of the public.”

Therefore, pursuant to the Constitution of the United States, (Article IV, Section 2) and the Court cases noted above the Arizona “property tax,” which is, in reality, an excise or privilege tax, cannot be imposed upon Citizens of the several States, who own what has been identified as class 3 properties (A.R.S. 42-12003) within Arizona.

Ye are of your father… John 8:44

After reading the excerpts from the Constitution of the United States of America and the court cases which affirm the pertinent Articles and Sections of the National Constitution pursuant to the Arizona “property tax” (A.R.S. 42-12003) it is easy to determine that the manner in which said tax is being administered and executed is NOT in compliance with the National Constitution.

At this point, the actual construction and interpretation of the Arizona Revised Statutes pursuant to the “property tax” becomes irrelevant. The Arizona “property tax” is being administered and executed in a manner that is repugnant to both the National Constitution and the Arizona Constitution. This is an issue of far greater magnitude than mere money. When government acts outside the limits of the National Constitution the mandated Republican form of government is destroyed. (National Constitution Article IV, Section 4, Arizona Constitution Article 2, Section 1) The People cease to hold all political power. (Arizona Constitution Article 2, Section 2) Due process is extinguished (Amendment V, Bill of Rights, Arizona Constitution Article 2, Section 4) and property is taxed and seized under color of law. (Amendment IV, Bill of Rights) The People are, in fact, placed in a form of involuntary servitude in a feudal like system of property ownership, (Amendment XIII to the National Constitution) and the National Constitution and the Arizona Constitution cease to be, “the supreme law of the land.” (Arizona Constitution Article 2, Section 3 and Article 2, Section 32)

All actions taken by the County of Navajo pursuant to class 3 properties owned by Citizens of the several States: that of assessment of said property, the creation of a “property tax” bill for said property, the creation of a tax liens for said property, the sale of delinquent tax liens for said property, and the recording of tax liens for said property was void ab initio. The Navajo County Assessor, Treasurer, Recorder et al. had no constitutional authority to take such actions against class 3 properties (A.R.S. 42-12003) that is owned by Citizens of the several States.

Supreme Court Decision:
Marbury v. Madison : 5 US 137 (1803): “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. … It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it. … The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. … If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. … Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”

In the Supreme Court case of Norton v. Shelby County noted below the Supreme Court decided that an unconstitutional act “imposes no duties.” No Citizen of the several States had a duty to pay a “property tax” imposed by A.R.S. 42-12003 on his or her property, and said “property tax” “is in legal contemplation inoperative as though it had never been passed.”

Norton v Shelby County, 118 US 425: “An unconstitutional act is not law. It confers no rights, it imposes no duties, it affords no protections, it creates no office, it is in legal contemplation as inoperative as though it had never been passed.”

American Jurisprudence (second edition is cited as Am. Jur. 2d) is an encyclopedia of United States law, published by West. It was originated by Lawyers Cooperative Publishing, which was subsequently acquired by the Thomson Corporation. The series is now in its second edition, launched in 1962. It is a staple of law libraries, and the current edition is over 140 volumes.
In regards to an unconstitutional act by government, American Jurisprudence states:

16 AM JUR 2d, SEC 177 LATE 2D, SEC 256:
“The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it’s enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been
passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on
anyone, affords no protection, and justifies no acts performed under it….. A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby. No one Is bound to obey an unconstitutional law and no courts are bound to enforce it.”

As they are written, the Arizona Revised Statutes that govern the Arizona “property tax” may, indeed, pass a constitutional challenge, but the administration and execution of those statutes cannot. Let’s take a look at the statutes.

THE PROPERTY TAX, ARIZONA REVISED STATUTES, TITLE 42

Next to be examined are certain statutes, which are pertinent to fully understanding the scope of the Arizona “property tax” imposed on class 3 properties A.R.S. 42-12003.

42-11002 Property subject to taxation
All property in this state is subject to taxation except as provided in article IX, Constitution of Arizona, and article 3 of this chapter.

First, it is important to understand that this statute does not impose a tax on anything at all. It merely states that all property is subject to taxation or that all property can be taxed. This statute should not be interpreted to mean that within the Arizona Revised Statutes there exist statutes that impose a tax on all property both real and personal. (Arizona Revised Statutes 42-12001 through 42-12010 list the real and personal property that is actually subject to taxation.)

Second, remember that the State of Arizona is bound by the United States Constitution pursuant to the two great classes of taxation and the governing characteristics of each class. (Direct taxes are subject to apportionment. Indirect taxes are subject to uniformity.)

Third, is all property within Arizona really subject to taxation or just some property? When the Citizen reads this statute he or she assumes that it applies to all property, but it does not. The Arizona Enabling Act at Section 20, Second states in pertinent part: “That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof…” (This unappropriated and ungranted public land is land that is held in trust for the American People by the Federal Government.)

As the Arizona people have disclaimed all right and title to said lands forever, and as “all political power is inherent in the people” (See: Arizona Constitution Article 2, Section 2) the Arizona People cannot give the State of Arizona the authority to tax, said “unappropriated and ungranted public lands,” even though said lands lie within the Arizona borders.

The Arizona Enabling Act at Section 20, Second goes on to confirm the above statement: “…that no taxes shall be imposed by the State upon lands or property therein belonging to or which may hereafter be acquired by the United States or reserved for its use…”

Therefore, all property in the state is not subject to taxation… or is it? Is 42-11002 a fatally flawed statute? If the meaning of this statute is determined by the commonly understood definition of each word, the statute is flawed. Clearly all property in this state (Arizona) is not subject to taxation. Federal property is not now nor has it ever been subject to taxation.

Further, if this statute is accepted at face value the Arizona Legislature has unilaterally amended the Arizona Enabling Act. This is forbidden by the Act itself at Section 20: “And said convention shall provide, by an ordinance irrevocable without the consent of the United States and people of said State… that no taxes shall be imposed by the State upon lands or property belonging to…the United States…”

When judges attempt to interpret statutes, they sometimes refer to the doctrine of “constitutional doubt.” While this statute does not bear directly upon the Arizona Constitution it does bear upon the Arizona Enabling Act, which is the foundation of the Arizona Constitution.

Congressional Research Service: Report for Congress
Statutory Interpretation: General Principles and recent Trends (Updated August 31, 2008)
Avoidance of Constitutional Issues
The doctrine of “constitutional doubt” requires courts to construe statutes, “if
fairly possible, so as to avoid not only the conclusion that it is unconstitutional but
also grave doubts upon that score.”107 “[W]here an otherwise acceptable construction
of a statute would raise serious constitutional problems, the Court will construe the
statute to avoid such problems unless such construction is plainly contrary to the
intent of Congress. . . . ‘The elementary rule is that every reasonable construction
must be resorted to, in order to save a statute from unconstitutionality.’ This
approach not only reflects the prudential concern that constitutional issues not be
needlessly confronted, but also recognizes that Congress, like this Court, is bound by
and swears an oath to uphold the Constitution.”108 “Grave doubt” as to
constitutionality does not arise simply because a Court minority — even a minority
of four Justices — believes a statute is unconstitutional; rather, a Court majority must
“gravely . . . doubt that the statute is constitutional.”109

Pursuant to the doctrine of “constitutional doubt” the legal definitions rather than just the English language definitions of the words utilized within 42-1102 must be examined. To understand the true meaning of this statute (42-11002) the reader must know the legal definition for the word “in.”

The use of the word “in” within A.R.S. 42-11002 would be termed a word of art by the legal profession. Words of art are defined as: 1) specialized language with meaning peculiar to a particular profession, art, technical work, science or other field of endeavor. 2) jargon known only to people who specialize in a particular occupation.

The legal definition for the word In: “under the law of” (findlaw.com) In: “Under or based on the law of” (Black’s Law Dictionary 9th Edition 2009) When the legal definition of “in” is inserted into 42-11002 the statute now reads: “All property under the law of the state is subject to taxation…” There, now the statute is easily understood and it becomes obvious that not all property is subject to taxation, but only that property that is under the law of the state. Further, this statute now conforms to the Arizona Enabling Act.

This interpretation of the statute is confirmed within Title 42 at 42-15152.
42-15152. Inclusion of all property on the roll
A. In addition to all other property that is required by law to be placed on the roll, all real property that is subject to the jurisdiction of this state, regardless of ownership or by whom it is claimed, possessed or controlled, and regardless of whether it is exempt from taxation by law or by the Constitution of Arizona, shall be listed on the roll in the manner prescribed by this article. This subsection does not alter any statute or constitutional provision relating to property that is exempt from taxation.
B. The roll shall also include the total personal property tax roll as provided in section 42-17053

Within 42-15152 the state acknowledges that only that property that is subject to the jurisdiction of the state shall be listed on the tax roll.

The real harm that 42-11002 inflicts upon the Citizen is that it leads the assessor and the Citizen as well to assume that all real property must fall within one of the classes of taxable property noted within 42-12001-42-12010, and that is not the case. As you will see, not all real property meets the definitions of taxable property within the aforementioned statutes. (42-12001-42-12010)

So, to review, this statute (42-11002) does not impose a tax on anything at all, but merely states that all property that is under the law of this state can be taxed; but, remember, said taxation is subject to the constraints expressed within the Constitution of the United States. (Direct taxes must be apportioned; indirect taxes are subject to uniformity)

The next statute of interest is: 42-11004.

42-11004: Payment of tax as prerequisite to testing validity
“A person on whom a tax has been imposed or levied under any law relating to taxation may not test the validity or amount of tax, either as plaintiff or defendant, if any of the taxes:
1. Levied and assessed in previous years against the person’s property have not been paid.”

Supreme Court Decision:
Can this statute apply to one of the Citizens of the several States? NO!
Ward v. Maryland, 79 U.S. 418 (1870) “Attempt will not be made to define the words ‘privileges and immunities’ or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the Court. Beyond doubt those words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen…to acquire personal property; to take and hold real estate; to maintain actions in the courts of the state…”

The Constitution of the United States:
In the Ward decision noted above the Supreme Court affirmed that it was a right for Citizens of the several States to, “maintain actions in the courts of the state…” The Supreme Court fixed this right to Article IV, Section 2 of the Constitution of the United States of America. “The Citizens of each State shall be entitled to all privileges and Immunities of Citizens in the several States.”

The Constitution of the United States:
Article VI, Section 2, of the Constitution of the United States of America states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …shall be the Supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Supreme Court Decision:
Can the State utilize legislation to overcome the Constitution of the United States? NO!
Miranda vs. Arizona, 384 US 436, 491: “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” See also, United States v. Alpers, 338 U.S. 680, 94 L. Ed. 457, 460; United States v. Raynor, 302 U.S. 540, 82 L. Ed. 413, 58 S.Ct. 353, 1938.

Pursuant to the Constitution of the United States and the Supreme Court decisions noted above Citizens of the several States do not have to pay the tax in order to challenge the tax within the courts of this State.

The next statute of interest is 42-11111.

42-11111. Exemption for property of widows, widowers and disabled persons
A. “The property of widows, widowers and disabled persons who are residents of this state is exempt from taxation…”

To understand the true meaning of this statute, the phrase, “who are residents of this state,” must be understood. First of all, if the state wanted to exempt the property of widows, widowers and disabled persons, is the phrase, “who are residents of this state,” really necessary? Could not the Arizona Legislature merely have stated: The property of widows, widowers and disabled persons is exempt from taxation? No, the phrase, in question, could not be omitted. If the Arizona Legislature had omitted the phrase, “who are residents of this state,” grave “constitutional doubt” would have occurred. Why?

The meaning of this statute turns on the legal definition of the word: “resident.”

Resident “One who has his residence in a place. Resident and inhabitant are distinguishable in meaning. The word inhabitant implies a more fixed and permanent abode than does resident; and a resident may not be entitled to all of the privileges or subject to all the duties of an inhabitant. Also a tenant, who was obliged to reside on his lord’s land, and not to depart from the same.” (Black’s Law Dictionary 1st Edition 1891)

Now, compare the legal definition of the word “resident” with the legal definition of the word “Citizen.”

Citizen “In general. A member of a free city or jural society, possessing all of the rights and privileges which can be enjoyed by any person under its constitution and government, and subject to the corresponding duties. In American law, one who, under the constitution and laws of the United States, has a right to vote for civil officers, and himself is qualified to fill elective offices. One of the sovereign people. A constituent member of the sovereignty, synonymous with the people.” (Black’s Law Dictionary 1st Edition 1891)

Notice that the person identified as a “resident” is not one of the sovereign people, and is not entitled to all of the privileges as is a “citizen. Now, let’s move forward about 90 years and examine the definitions of the same two words.

Resident: “Any person who occupies a dwelling within the state, has a present intent to remain within the State for a period of time…” (Black’s Law Dictionary 5th Edition 1979)

Citizen: “One who, under the Constitution and laws of the United States, or of a particular state, is a member of the political community, owing allegiance and being entitled to the enjoyment of full civil rights.” (Black’s Law Dictionary 5th Edition 1979)

Notice that the citizen is a member of “the political community” and is also “entitled to the enjoyment of full civil rights,” while the “resident is merely present in the State with no mention that the “resident” possesses any rights at all.

Resident: “1. a person who lives in a particular place. 2. A person who has a home in a particular place. In sense 2. a resident is not necessarily either a citizen or a domiciliary.” (Black’s Law Dictionary 9th Edition 2009)

Citizen: “A person who, by either birth or naturalization, is a member of a political community, owing allegiance to the community, and being entitled to enjoy all its civil rights and protections…” (Black’s Law Dictionary 9th Edition 2009)

Notice that this definition of “resident” states that the resident may not be a “citizen;” and, once again, the Citizen is entitled to all civil rights and protections, while there is no mention that a resident is entitled to any rights or protections at all.

Federal Circuit Court of Appeals Decision:
Jeffcott v. Donovan, C.C.A. Ariz., 135 F. 2d 213,214 “The terms citizen and citizenship are distinguishable from resident or inhabitant.”

The Federal Circuit Court of Appeals has ruled that a “citizen” is distinguishable from a “resident,” and the legal definitions of each of the two words noted above have clarified the differences. In the United States a “Citizen” is a member of a political community and is entitled to the protections of the Constitution of the United States of America, while a “resident” is merely present in the State and is not under the protection of the National Constitution.

Supreme Court Decision:
Dred Scott v. Sanford, 60 U.S. 393 (1856)
It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded.

Pursuant to the Dred Scott decision only Citizens of the several States are under the protection of the National Constitution. Non-citizens have no Constitutional Rights, privileges, or immunities.

Constitution of the United States of America:
The Constitution of the United States of America at Article I, Section 8, Clause 4 states: “Congress shall have Power…To establish an uniform Rule of Naturalization…” Pursuant to the preceding Article Congress has the power to determine the status of persons within the United States and Congress recognizes: Citizens, resident aliens (green card), and non-resident aliens. Note that those persons who are not Citizens are classified as some form of resident and they are considered aliens and not Citizens.

So, why was it necessary to include the phrase, “who are residents of the state,” within 42-11111 to avoid “constitutional doubt?”

If you will recall within the first section of this paper, it was established that it was a Right expressed within and guaranteed by the National Constitution for Citizens of the several States to acquire, own, enjoy, and defend property at law; but, residents, who are not considered citizens are not afforded any protection by the National Constitution and have no Right to acquire, own or enjoy real or personal property or to defend that property at law.

Residents are guests within this country and it is a privilege for residents (aliens, non-citizens) to own property within the several States.

Remember, an indirect tax which is imposed in the form of an excise tax is a tax on a privilege. In the matter of the Arizona “property tax” (A.R.S. 42-12003) the State is actually taxing the privilege of property ownership by non Citizens. The property itself is not being taxed, but the value of the property is assessed to determine the amount of the excise or privilege tax that is owed.

Therefore, if the Arizona Legislature had omitted the phrase, “who are residents of the state,” and merely stated: The property of widows, widowers and disabled persons is exempt from taxation; this statute (42-11111) could have been interpreted to imply that the real and personal property of Citizens was subject to an excise or privilege tax, which is forbidden by Article IV, Section 2 of the National Constitution, and to be exempted from this tax the Citizen had to be a widow, widower or a disabled person.

Therefore, the word “resident” had to be included within this statute (A.R.S. 42-11111) to clarify that the property of Citizens was not included as property under the law of the State pursuant to A.R.S. 42-11111.

The final statute that will be examined will clarify that the real and personal property of Citizens of the several States is not subject to taxation by the Arizona “property tax.”

42-12003 Class three property; definition
A. For purposes of taxation, class three is established consisting of real and personal property and improvements to the property that are used as the owner’s primary residence…”

There are three key words that need to be examined to determine what property actually falls into the taxable class of property described as class three properties. (A.R.S. 42-12003)

The first of these words is: “owner.” Pursuant to the Articles of the National Constitution and the court citations previously discussed, and to avoid grave “constitutional doubt,” it is obvious that the word “owner” utilized within 42-12003 cannot be a Citizen of the several States. Why?

To review: Pursuant to Article IX of the Arizona Constitution all taxes on property are subject to uniformity. Uniformity is the primary characteristic of an indirect tax. The indirect tax imposed on property within Arizona is an excise or privilege tax. Pursuant to Article IV, Section 2, of the National Constitution it is a Right for Citizens of the several States to acquire, own, enjoy, and to defend their property at law. The Arizona legislature cannot convert a Right expressed within and secured by the National Constitution into a privilege.

However, non-citizens (residents, aliens) are guests in the United States. It is a privilege for non- citizens to own property in this country. Non-citizens are not under the protection of the National Constitution; and, therefore, have no right to acquire, own, enjoy or to defend property at law. Under these circumstances, an excise tax can be imposed upon the privilege of property ownership by a non-citizen. The word “owner” as utilized within 42-12003 can only mean a non-citizen; otherwise the question of grave “constitutional doubt” arises.

The next word is: “primary.” What can be determined from this word is that the “owner” has more than one dwelling place. The “owner” cannot have a “primary residence” unless the “owner” has, at least, a secondary dwelling place. The exact number of residences or dwellings that the “owner” has is unknown, but we do know that it is more than one.

The last key word is “residence.” There is a legal definition for the word “residence,” and there is also a legal definition for a word very similar in nature to “residence” and that word is “domicile.”

Compare the two definitions:

Domicile: “That place where a man has his true fixed and permanent home and principle establishment, and to which whenever he is absent he has the intention of returning. Domicile and residence, however, are frequently distinguished, in that domicile is the home, the fixed place of habitation; while residence is a transient place of dwelling.” Fisher v. Jordan, C.C. A. Tex., 116 F.2d 183, 186; Minick v. Minick, 111 Fla. 469, 149 So. 483, 488; Haetzler v. Radeka, 265 Mich. 451, 251 N.W. 554. (Black’s Law Dictionary 4th revised Edition 1969)

Notice that a domicile is the fixed and permanent home, while the residence is transient in nature.

Residence: “Domicile compared and distinguished. As domicile and residence are usually in the same place, they are frequently used as if they had the same meaning, but they are not identical terms, for a person may have two places of residence, as in the city or country, but only one domicile. Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. Fielding v. Casualty Reciprocal Exchange, La.App., 331 So.2d 186, 188. “Residence is not synonymous with domicile though the two terms are closely related; a person may have only one legal domicile at one time, but he may have more than one residence. (Black’s Law Dictionary 6th Edition 1991)

Domicile: “A person may have more than one residence but only one domicile. The legal domicile of a person is important since it, rather than the actual residence, often controls the jurisdiction of the taxing authorities and determines where a person may exercise the privilege of voting and other legal rights and privileges.” (Black’s Law Dictionary 6th Edition 1991)

Notice that in these two definitions a person may have more than one residence, as does the “owner” in 42- 12003, but a person may have only one domicile. Further, notice that it is the person’s domicile and not the residence that determines the jurisdiction of taxing authorities and other legal rights and privileges. Also note that within 42-12003 the Arizona Legislature did not utilize the word “domicile.”

Domicile: “The place at which a person has been physically present and that the person regards as home; a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.” (Black’s Law Dictionary 9th Edition 2009)

Residence: “The act or fact of living in a given place for some time (a year’s residence in New Jersey). Also termed residency. The place where one actually lives, as distinguished from a domicile (she made her residence in Oregon). Residence usually just means bodily presence as an inhabitant in a given place; domicile usually requires bodily presence plus an intention to make the place one’s home. A person thus may have more than one residence at a time but only one domicile.” (Black’s Law Dictionary 9th Edition 2009)

Notice, again, that a residence is temporary, but a domicile is home. The Federal courts have also helped to define the two words: “residence” and “domicile.”

Federal Court Decisions:
Delaware L.&W. R. Co. v. Ptrowsky, C.C.A.N.Y., 250 F. 554, 557 “The words citizen and citizenship, however, usually include the idea of domicile.” Messick v. Southern Pa. Bus Co., D.C. Pa., 59 F. Supp. 799, 800, “Citizenship and domicile are often synonymous.”

Notice that the Federal Courts have ruled that it is the “domicile” and not the “residence” that determines citizenship.

The Internal Revenue Service has also shed some light on the definitions of the three words: “domicile, residence,” and “resident.”

Title 26: Internal Revenue, Part 1-Income Taxes, Non Resident Alien Individuals, 1.871-2 Determining residence of alien individuals.
(b) Residence defined.

“An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient but, if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien makes his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad…”

Let’s revisit 42-12003 and put it all together.
A. For purposes of taxation, class three is established consisting of real and personal property and improvements to the property that are used as the owner’s primary residence…”

Notice that the word: “domicile” is not used within this statute. Remember, it is the domicile of the owner that determines the owner’s citizenship as well as the owner’s legal rights and privileges. Class three property (A.R.S. 42-12003) is composed only of primary residences. A “residence” in and of itself can neither establish citizenship nor legal rights and privileges for the “owner.” As the Arizona Legislature did not include the word “domicile” within this statute it must follow that the “owner” is not a Citizen of the several States and therefore is not afforded the protections of the National Constitution or the Arizona Constitution.

Further, this all makes sense as it has been determined that the Arizona “property tax” is actually an excise tax which is a tax on a privilege. The non-citizen has no Right guaranteed by the National Constitution to own property within the United States; and, therefore, the privilege of property ownership is taxable in the form of an indirect tax, more specifically, an excise tax.

This is the only logical explanation. Either we are to believe that the Arizona Legislature committed a huge Constitutional blunder and imposed an excise or privilege tax on the Citizen’s property which he or she owns by Right (Article IV, Section 2 National Constitution), or the Arizona Legislature imposed a privilege tax on the ownership of property by non-citizens only.

The statute (A.R.S. 42-12003) noted within this paper was written in a manner that is constitutionally correct as long as said statute is not construed to include the property of Citizens of the several States, and the Arizona Legislature was very careful to utilize words within said statute to make it very clear that the property of Citizens was not to be included. However, the Assessor, the Treasurer, and the Recorder et al. of Navajo County have administered and executed this statute (A.R.S. 42-12003) to include the property of both Citizens of the several States and non-citizens alike. In so doing, said elected officers of the County of Navajo and the employees under their supervision have committed grievous violations of both the Arizona Constitution and the National Constitution to which they are bound to “bear true faith and allegiance” by and through their respective Loyalty Oaths, (A.R.S. 38-231 (E))

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