Petition — Diamond v. Walter

;

[/ Sime Court, U.S,

- - | ILED

8 0 -9 94

NO.

DEG 4 1980

MICRAEL KODAK, JR., CLERK

In the Supreme Court of the United States

October Term 1980

HERMAN DIAMOND,

Petitioner,

LAMAR C. WALTER, Assistant United States

Attorney, United States Department of Justice

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

HERMAN DIAMOND, pro se

3610 Macceo Dr.

Savannah, Ga. 31410

Phone (912) 897-2442

QUESTIONS PRESENTED

1. Has the lower Courts departed from ac-

cepted and usual course of Judicial Proc-

eedings so as to call for this Honorable

Court's power of supervision,.

When a District Court grants a Summary

Judgment in favor of Respondent,an U.S.

Assistant District Attorney,who files an

unauthorized Civil Complaint against Pla-

intiff and pretends to represent the U.S.

Government in his own complaint,for viol-

ations of Federal Law not adjudicated,

without Jurisdiction in conflict with the

Statutory provisions applicable, grants

abosolute judicial immunity,without a

hearing or trial,uponvtohsideration and

the Court of Appeals Fifth Circuit,affirm-

s the Judgment and denies a rehearing.

For a tort action,and for violations of

Federal and state laws and Articles of the

Constitution,and a Compact between Federal

Government and the State of Georgia,and

Petitioner's Civil Rights,and for Malicio-

us Abuse of Legal Process,to harm and cau-

se irreparable damage to Plaintiff and his

property by a fraudulent Permenant Injunc-

tion not authorized by law.

TABLE OF CONTENTS

page

Questions presented, srcneccsesecece i

Statues involved, TETERURTET TTT 2

Jurisdiction, Hie'cés cebeeaeee Toe

Statement of the Case... .cevceevvseers 2

ATEWUMENE, coccccccccccccccccsccessess &

Revaew seule Lesue. cccccessccissurs oe

APPENDIX

PAGE

Complaint in CV 479-87 ..cccceseee tata

Order:randtJudgment:to; Consolidates. ..

Ca. 3092,pursuant to F.R.C.P.42 (a). 5a-6a

Decision of Court of Appeals, 5th Cir...

MOST ine CAI0S? cccccccscctsvccssecs OS

Judgment in CV479-87 ....ecseveceeee 8a

Rehearing denied,Court of Appeals .. 9a

Complaint CA 3092 ..wuwcrccsceeeee ee lL0A—i ja

Motion to dismiss ..ccccccccccccccsces 1m

Judgment in CA 3092 ..c.eeeeeeveesl 5Sa-16a

Georgia Cession,1802 ..csecceeesse17a-19a

Art. 4,6 of U.S.Constitution ........ 20a

U.S. STATUES

Pitke €6.0.9.6.9.45.<ccsenccwweenree ee

© 46 0.8.6.5 4, C2)09FS (6s iss cee

© 46 U.S.C.5 2096 ..csccicssevnce el

* $9 U.B.6.8 £, socosedicceeces ene

page

PESES 95: Gi Oe 806 i soko as 7a

wee eS ES etme 16a

Code of Federal Regulations

33°C.F.R. 209260 (k)(1) (ii) 21a

GEORGIA STATE LAWS & CONST.

Riparian Rights .cccccccecsccccccscce 208

State Boundries ..ccccccccccccccccsce Lea

Title; Ga. Code

15-101 ceccccccceseccccecccceetecess SM

15-201, Sovereignity,.cccccecccsecccveeeta

85-1310, Right to embank ......ee.e2+23a

105-1401, private property ...eeeee.+23a

105-1402 right of action .....+e+++-23a

$0 5-1506,. S2OGRESS, bc ccbescecececs 28

TABLE OF AUTHORITIES

page

Cherokee Nations v. State of Georgia ,,

8 L.Ed 475, 5 Peter,106 U S 41 ..... 11

Kittler v. Kelsch, ND 216 N.W.898...

56 AsEsRs 1280, 2221 sv ccieicweseenses 10

Leong Yau, v. Carden, 23 Haw 362,... 10

Richmond Mica Co.v. De Clyne 90 Fed.

Reweeeer C0, G68 ‘veccsawdawecsasens 9

Little v. Barreme,~2 Cranch 170

2 eR BOD. cecacvecicrvrcinsrcccivess 8

Mississippi v. Johnson,

71 UE S99, 16 Di Re OFS. ci ccacceatsoosels

ii

page

Philadelphia Co.v. Stimson

223 US 159, 56 L.Ed 728 ...ccceoeee © 8

Shaw v. Moon 117 Or 558

RE RIS G0, 085 Pllc, S18 cic cc cae cdece 10

Schneider v. Sheppard, 192 Mich 82

158 NW 182 wcccccccccccecccccccvesese 10

RE Sawyer, 124 US 200,210,

31 L.Ed 402,405 cccccccccccvccccsecvee @

Smith v. U.S., CA Ga.1967,

375 F.2d.243,88 S Ct. 76, 389 US 841,

TSE Di WATS chek s cee i ceiacs cectcvess 15

Securities and Exchange Comm. v. Chenery

Corp. 318 US 78-80, 87 L.Ed.627....... 8

Ex Parte, Young, 209 US 159,

$2 L. Bd. 728,13 IRA nw 932 wcccccceees 8

U,S, v. Diamond, 512 F.2d. 157

Cert. Den. 423 US 928 (5th Cir)1975....4

U.S. v. Hall, CA Cal,1944,

145 F.2d 781, Cert. Den. 65 S Ct.1016

Soe US B72, OSL BEIRESiccecvecceseiahS

U.S. v. Kane, 602 F.2d.490-494,...... 8

U.S. v. Lee,106 US 196,220,221,

PP ZO. 27h LOR RGR cvccacccovsccesiosne 8

U.S. v. Morin, DC Ind. 1866,

PedereGl Case, 15,.G10 wecvccsvecscevvces 17

FEDERAL STATUES

28 U,S.C.8 is e*eoeeeee#e#8teeete#e#eeeee#eee#e

OE ee a rr

FEDERAL STATUES

page

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ee! 2 ener igh deebune ee

eee ok Cel errr me

Se vc coackccdetetenas > Bae

eS B.S 15

Leh A 8 rn eeeee reas wees

34 U.8.6.5 869, ....00 &, 6,7,90,28 439019

99° 0.5.018 O06 * ci cdvcicsss: 9S

Code of Fed Regulations

33 C.F.R. 209260,(k)(1)(ii) 1973,..12,13

Fed.Rules of Crim. Procedure

Rule

3,4,10, eeaeeeveveeve eee eee eee ee eeere ‘9

42 (a) Fed. Rules Civ. Procedure, ...16

ARTICLES OF THE U.S. CONSTITUTION

Article page

Dy ccvecee cowstdbebsacsesn Seumesnees oe

Be ccccccccceccceccsceceses 11, 13

De ckbeuecwsd dene eateenens 3, 14

\ PURE TELE EC LTC 6, 14,16

| Meer eTETTee eee Tere 14

OR, ‘wacewas ces becdnbedeseess 10,14

Whartons Crim. Law § 258 ccocccccccces 17

Administrative Law,S 213, ..sseeee+ 8,13

7% AM JUr 24,8 37, Porte, cccccccccce 7

gk” ee Ser

iv

GEORGIA STATE LAWS

1802 COMPACT.

1802 Compact, "Georgia Cession,

American State Papers,Public Lands

Vol ¥111,p.125,126, Gale & Seaton,

PAGE

1832, eeoeoeeeeeveeeeresveeveee > re F 6,14,16

15-101 wcccceccccccccccesccccceces

15-201 cccccccccvveccccccsscvcecves

S5-13910, scccccccccccccccseccsccces

105-1401, wcccccccccccccscccccscces

105-1402, wccccccccvcccesccccccese

LOS-ENOG, sc ccodccbessccccesceesess

ee S|

3,11

12

12

12

12

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 198_

HERMAN DIAMOND,

Petitioner,

versus

LAMAR C. WALTER,Assistant United States

Attorney,United States Department of Justice

Respondent

Petition On Direct Appeal To The' Court. of

Appeals For The Fifth Circuit

Petitioner seeks to review a Summary Judg-

ment from the District Court based on Con-

Sideration granting Judicial Immunity to a

Quasi-Judicial Officer and Affirmed by the

Court of Appeals for the Fifth Circuit.

OPINION BELOW AND JURISDICTION

The lower Court,based on its opinion and

consideration issuedia: judgment in favor

defendant, Mr. Lamar C. Walter,January 18

1980, and the Court of Appeals fifth Cir-

_ cuit Affirmed,the Judgment of the Lower

Court, based on the records and briefs on

me

Aeenmenrs oon ne a ee ee ee 2 er eee

file, pursuant to Rule 18.

Petition for rehearing was denied,October

7,1980.0n October 21,1980 the Judgment of

the Court of Appeal Fifth Circuit was ma-

de the Judgment of the Lower Court.

JURISDICTION 28 U.S.C.8 1252

Jurisdiction is invoked in which an

Federal Agency and an Officer or Federal

employee is a party.

For violations of the 1802 ‘GEORGIA

CESSION' A Compact between the Federal G-

overnment and the State of Georgia.

STATUE"S INVOLVED

28 U.S.C.8 1331 and 28 U.S.C.8 1343(4)

42 U.S.C.8§ 1983.

STATEMENT OF THE CASE

On the 15th Day of March 1979, Peti-

tioner Diamond,filed a Civil Complaint NO.

479-87 against a former United States As-

sistant District Attorney, for the South-

ern District of Georgia, Savannah Georgia.

2

Mr. Lamar C. Walter, a resident of Chatham

County, Ga. for vilation of his Civil Ri-

ghts pursuant to Title 42 U.S.C.8 1983

and for violations of his rights pursuant

to Articles of the U.S. Constitution and

his rights under Georgia Law, and ju-

risdiction is invoked : to secure_redress

for damages pursuant to 28 U.S.C.8 1331 and

1343 (4) (A.pla-4a) He is sued Individu-

ally and in his official capacity,(A, 1a-

para 3). Mr. Walter is also sued for dam-

ages for violating the ‘ Georgia Cession'

of 1802, a compact between the Federal G-

overnment and the State of Georgia and

its citizens. (A.par.10.) (A.p.17a-19a)..

pursuant to Articles 4 and 6 of the U.S.

Constitution. (A.p.20a),and Georgia law

Title 15-201,-15-101, it's boundries and

the Sovereign) rights of the state and its

citizens.whereas the Federal Government

granted jurisdiction and ceded its autho-

rity to the State for subdividing Georgia

into Alabama and Mississippi. (A.p.17a-19a)

over the lands of Georgia.

MR. Walters acting under color of law did

not have jurisdiction or authority over

Petitioner or his property to file a civil

complaint in the name of the United States

for a assummed misdemeanor to secure a pe-

rmenant Injunction over Petitioner's prop-

erty, specifically not authorized by law,

and in direct violation of several Articles

of the U.S. Constitution, by malicious ab-

use of legal process to secure results

the laws of congress and the state did not %

intend for him to obtain,and the fraudulent

manner’in which atpermenant Injunction ov-

er Petitioner's property.

On April 5,1973, Mr. Lamar Walter,U.S.

assistant District Attorney, filed a civ-

il complaint NO.3092, (A.10a-13a) against

petitioner Diamond, seeking a: P%

order and permanent injunct.(par.1p.1i2a)

3

from depositing or dumping any refuse in

the marshlands adjoining Richardson Creek.

said dumping being in violation of the l-

aws of the United States, no permit(A ila

par.4) and upon information and x ge (A

par.5).for violation of 33 U.S.C.8 403,407

The Complaint is in the name of the Un-

ited States of America, Phaintiff ,and by

and through its undersigned Counsel, (sign-

ed by Lamar C. Walter, (A i3a)

urisdiction invoked pursuant to 28 U.S.C

1345, (10a)(par.1) That on April 4,1973

and at times unknown to Plaintiff, (A10a-

11a,par. 3). said violations did accure.

Petitioner, filed a motion to dismiss

Plaintiff's complaint on grounds that it

fails to state a claim upon which relief

can be granted. (A.1i4a)

The Lower Court issued a Judgment in

CA 3092 on April 17,1974, (A,15a-16a)

for violations of 33 U.S.C.8 403,for not

having a permit,defendant,Diamond,his

servants,agents, employees, attorneys,

successors and assigns be permanently

enjoined and restrained from engaging in

or causing, indirectly or permitting any

fill or construction operations on the

area in dispute,bounded by Richardson Cr-

eek and on the South by Oatland Island Rd,

Chatham County Ga.

The Court of Appeals affirmed the decisi-

on in U.S.v. Diamond, 512 F 2d i Cert.

denied 423 U.S. 928 (5thCir.1975

The Courts decision was based on the

Denial of a permit for a Bulkhead and not

for fill,as the U.S. Attorney had several

4

meetings with the District Engineer to

influence the denial of the permit as the

exhibits in CA 3092, whereas the letter

secured pursuant to the Freedom of Infor-

mation Act ‘indicates,*That the denial of

permit will influence the Courts decision

for a favorable verdict. —

On 4 December 1975, The Government

filed a motion to consolidate CA 3092 with

CA 475-221, whereas Petitioner had reque-

sted a hearing for the denial of the per-

mit (A.5a-6a) Thereby granting a new tri-

al,by order of the lower Court, and since

4th December 1975 after 3 hearings the C-

ourt has of this day not issued a judgme-

nt in CA 3092, 5 years has elapsed thereby

the statue of limitations has run.

- The Court of Appeal Fifth Circuit

had modified the judgment in 79-2942, :

so as to remove the Dock and walkway from

the judgment although no judgment was is-

sued in the New Trial, eg agem 28 April

1980, Whereas their authority to revive

the old judgment is without jurisdiction.

In Civil Action 479-87, The lower

Court grant a judgment in favor of the U.

S. Assistant Attorney, respondent,Walter

in its opinion that the Government Attorney

had absolute immunity. (A. 8a)

The Court of Appeals Fifth Circuit

confirmed and a rehearing was denied(A.9a)

7th October 1980.

x

-

~ = ‘ . . ¥

- -

ae

The lower Court issued its judgment

based on consideration and did not grant a

hearing to allow petitioner to present his

5

case or facts before a jury as requested

in the petitioner's complaint for damages

(A.4a), and as guaranteed by the 7th Ar-

ticle of the U.S.Constitution.

ARGUMENT

Mr.Lamar C. Walter, former U.S. Ass-

istant District Attorney for the Southern

district of Georgia, Savannah, Ga. is a

citizen and resident of Savannah, Ga.

He is being sued as an individual and

as and official of the United States Dep-

artment of Justice. (A.2a,par.3) in a tort

action for injuries and damages and for

taking of property by unlawful permenant

Injunction not authorized by Acts of Cong-

ress and the State of Georgia and the 1802

Compact ,(A.15a-16a) injunction , (A.17a-

say Coupast Of 1802, and Georgia laws (A.-

23a). having caused irreparable damages an-

d harm to Petitioner.and for malicious ab-

use of legal process and malicious prosec-

ution not authorized by law,

The complaint, Civil Complaint, CA -

3092 filed by Mr Walter, (A.10a-13a) on

5th April 1973 is prima facia evidence of

his unlawfull action without Judicial aut-

hority, (A.10a) as he states, "Now comes

the plaintiff, United States of America, by

and through its ‘undersigned counsel’.

Mr. Walter has no authority to act as co-

unselfor the Federal Government,to initia-

te a civil suit in equity fer a violation

of a misdemeanor, 33 U.S.C.8 403, for not

having secured a permit. (A.11a, par.3,4)

(the Judgment was for violation of 403)

(A.15a).

Title 33 U.S.C.8 406, clearly states

that the proper proceedings for an injuct-

ion may be instituted by the Attorney Gen-

6

eral of the United States. (A.7a) The

complaint makes no mention of any author-

ity by the U.S.Attorney General authouri-

zing Mr. Walter to initiate the complaint

CA 3092. (A. 10a-13a)

Mr. Walter cannot represent a third

party,the United States Government without

the statutory law.

74 AM JUR 2d, TORTS; unauthorized

prosecution in the name of another.

28 U.S.C.8 515, when specifically

directed by the Attorney General conduct

any kind of 7 proceedings. The record

and the complaint makes no reference or is

there any.

A court of equity, has no jurisdict-

ion over the prosecution, the punishment,

or pardon of crimes, or misdemeanors, To

assume such a jurisdiction,or bill in equ-

ity to restrain or relieve against procee-

dings for punishment of offenses, is to

invade the domain of Courts of common law

Re SAWYER, 124 U.S. 200,210, 31 Led, 402,

105

The Statue, 33 U.S.C.8 403 and 406

It is urged that the statues does not co-

ntiplate or authorize the alleged depriv-

atation of property. (A. 7a)

Where an officeris proceeding under

an unconstitutional act, its invalidity

suffices to show that he is without autn-

ority,andiiteisnothis absence of lawfull

power and his abuse of authority in imp-

osing or enforcing in the name of:-the Un-

ited States, unwarrantable exactions or

restrictions, to the irreparable loss of

Petitioner, which is the basis of the Co-

mplaint, = © for the Judgment (A.15°:

16a) secured by Mr. Lamar Walter. responds.

7

ee

re |

ent, denies Petitioner the use of his

land or protection or enjoyment,

x te Yo 209 U.S. p.159, 52 L.ed 728

13 L.R.A. °

( Also denies petitioner the right to

construction and the use of the Dock and

walkway already approved by a U.S.Army

Corps of Engineers permit, as the Court of

Appeals fifth Circuit has modified in

79-2942 (A.6a) on April 28,1980.)

And a similiar injury may be inflicted

and there may exist grounds for equitable

relief, when an officer, insisting that he

has the warrant of the statue, is transce-

nding its bounds, and thus unlawfully ass-

uming to exercise the power of the govern-

ment against the individual owner, is GUI-

LTY of invasion of private property.

PHILADELPHIA CO. v. STIMSON, 223 U.S.620-

622, 56 L-ed 577,578.

LITTLE v. BARREME, 2 Cranch 170, 2 L.ed

243,

The conduct of the respondent, constitutes

an unwarrantable interference with proper-

ty of the petitioner, it’s resort to equi-

ty for protection is not to be defeated up

on the grounds that the officer from pers-

onal liabillity whése rights of property

they have wrongfully invaded.

United States v. Lee, 106 U.S.196,220,221

27 L.e@. 171,161,262.

Administrative Law,& 213 - Judicial Review

of orders,-Court will not substitute own

Judgment.

SECURITIES AND EXCHANGE COM. v. CHENERY

CORP. 318 U.S. 78-80, 87 L.ed.627.

U.S.v. KANE, 602 F.2d 490-494, state that

8

the denial of a permit is not a violation

of. the law, per se.

The complaint signed by Mr.Walter as

Attorney for the Federal Government was

not supplemented by an affidavit to supp-

ort his charges that Petitioner was in

violation of Federal law,as required when

his complaint is based on his own belief

and information not supported ty the in-

former, and not statedtany grounds either

for his information or belief. Did he know

exactly where the violation occurred,

in the Marshlands adjoin: Richardson Cre-

ek, (Richardson creek is 6 miles long )

(A. 10a-12a, par. 3,4,5,6,7,8,)

RICHMOND MICA CO. v. DECLYNE, 90 FEd. Rep.

orter 660,661

Petitioner file a motion to dismiss comp-

laint for it fails to state a claim upon

prey ioe can be granted to petitioner

A.1i4a). 9

The judicial authority of Mr. Walter

as Federal Attorney,that he can institute

and he must fanstitutex¢eriminal proceedi-

ngs before a magistrate for the arrest of

persons reasonably suspected of avcrime:

when he has information that such offens-

es have been committed, Fed Rules of Crim

Procedure,

RULE 3. Complaint, it must be made

upon oath before a magistrate,

RULE 4, Arrest Warrant or summons |

4 (a) issuance, a warrant for the arrest

of defendant shall issue.

RULE ¥0. Arraignment, shall be con-

ducted in open court, and shall consist

of reading the indictment or information

to the defendant and calling upon him to

plead thereto. He shall be given a copy

of the indictment or information before

he is called upon to plead.

Therefore we have.a criminal complaint

and the Government Attorney's malicious

abuse of legal process to file a civil

complaint and place the civil trial on

the courts calender for trial without due

process of law and equal protection in

violation of the 4th and 14 amendments: 6f

the U.S.Constitution, and the malicious

prosecution for the violation of not ha-

ving a permit pursuant to 33 U.S.C. 403

Therefore the Governments Attorney

would be guilty of a misdemeanor or malf-

easance in office,since his action are

not in the performance of his judicial

capacity.

In Kittler v. Kelsch, N.D.216 N.W.

898, 56 A.LeR. 1220, 122k%

The Attorney did act as a judicial

officer whereas in CA 3092 the Attorney

was not.acting in his judicial capacity.

Schneider v. Sheppard 192 Mich.82

158 N.W. 182

Shaw v. Moon, 117 Or. 558, 45 A.L.B

600, 245 Pac. 318.

The acts of the States Attorney

where the complaint without affidavit

required by law in criminal procedure’s,

acts without jurisdiction.

The United States District Attorney, Mr.

Jackson Smith, Did not authorise the pr-

gsecution of petitioner as his official

utiles requireé,whereas the Assistant,

Attorney assummed unlawfull authority to

prosecute his own complaint without the

knowledge of the U.S.District Attorney and

10

absolute unqualified immunity for a pro-

secution conceived and conducted corruply

with malice and bad faith.

Leong Yau v. Carden, 23 Haw. 362;

The lower Court in its opinion granted

a judgment (A.8a) for Respondant as to

absolute immunity and the Court of Appeals

Fifth Circuit Affirmed, This is Judicial

error and the facts must be tried before

a jury and not by consideration and Summ-

ary judgment.for his unofficial acts.

The Judgment secured by the Respond-

ent, See a): not authorized by law,

33 U.S.C.8 406 (A.7a)violates Articles 4

and 5 of the Constitution, a taking of

private property without due process and

without just compensation, and in violat-

ion of the 1802 Compact between the Fede-

ral Government and the State of Georgia.

by xe jurisdiction over the property

of a citizen of the State of Georgia, in

violation of Article II of the Compact,

as stated in,as published in Gale,Seaton

1832. p.125,126.

Mississippi v. Johnson,71 U.S.439,

18 L.Ed 475,

cited that the 1802 compact was unalt-

erable and irrevocable.

Cherokee Nation v. State of Georgia,

in 8 L.ed 475, 5 Peter 106 U.S.41

1802 compact granted the State of Geo-

rgia full soveregnty.

The judgment violates Georgia laws

(A.22a) Ga. Code 15-101, Boundries of the

state,

Ga Code 15-201, Extent of the States

Sovereignty and jurisdiction (A.23a)

11

Ga. Code; 85-1310; The right to levee

and ditch for overflows and freshets.

Ga. Code; 105-1401; Interferring with the

enjoyment of private property.

Ga. Code; 105-1402; Bare possession of

lands shall authorize the possessor to

recover damages from any person who shall

wrongfully in any manner interfere with

such possesion.

GA. CODE; 105-1406; DAMAGES FOR CONTINUI-

NG TRESPASS, AND SUBSEQUENT DAMAGES ON A

DAY TO DAY BASIS.

The District Court is without juris-

diction to issue a judgment. for an unlaw-

full Civil Complaint by a third party

fraudulently obtained without and in vio-

lation of statutory laws of C ngress(A. 72)

33 U.S.C.8 LO6, and 18 U.S.C.8 Fite ‘

The District Court, cannot substitute

its opinion for that of the U.S.Army Corp

of Engineers, that is authorized to issue

permits and is granted that authority by

the Act of Congress, Rivers and Harbors

Act of 1899, pursuant to 33 U.S.C. 1,(21A

and must be determined by the 33 C.F.R.

8 209260(k)(%) (ii) Shoreward limits of

jurisdiction(A. 21a) (1973 code) and such

regulations must be posted, in conspiciou-

sly and appropriate places, for the infor-

mation of the public,No such regulations

have been or now is posted in such places.

Jurisdiction is invoked pursuant to

28 U.S.C.§ 1345; UNITED STATES AS PLAINTI-

FF; Except as otherwise provided by Act of

Congress, the District Courts shall have

original jurisdiction of all civil actions

12

suits or proceedings commenced by the

United States or by any agency or offi-

cer thereof EXPRESSLY authorized to sue

by Act of Congress.

The Lower Courts cannot and will not

substitute it’s opinion for that of the

U.S.Secretary of the Army,its authority

by Act of Congress Rivers and Harbors Act

of 1899 requires that the permit or it's

violation of 33 U.S.¢.8 403, must be det-

ermined d 3 U.S.C. , and 33 C.F.R.-

209260 (ks (4 (ii) (A.21a) and upon due

public notice,

ADMINISTRATIVE LAW; 8 213; Court will not

substitute own Judgment,

The«Court has substituted it;s own jud-

gment in CA 3092, since there'was no trial

by jury nor was there any request by the

U.S.Secretary of the Army nor any inter-

vention by him to have the District Atto-

rney to act on his behalfas required bylaw.

There were several hearings and the

District Court issued its own opinion

and Summary Judgment in Ca 3092 initiated

and filed by , Respondant WALTERS, in

the name of the United States.

Whereas the Judgment, is a BILLOF ATT-

AINDER, in that it confiscate Petitioners

property for an assummed violation and °

works blood and corruption on his family

and assignees, as stated in the Judgment

(A. 15a-16a) in violation of Article and

Amendment 4 of the U.S.Constitution, The

right of the people to be secure in their

persons,houses papers, and effects,and

Amendment 5, Indictment,punisment, etc.

No person shall be held to answer for a

infamous crime unless upon a presentment

or indictment of a grand jury, nor be de-

prived of life,liberty or property,with-

13

out due process of law and without just

compensation.

and pursuant to Article 14, Equal prote-

ction of the law.

Article 10, powers not delegated to the

United States,

Whereas the powers of Cession granted to

the State of Georgia, by the Act of Con-

gress in Ratifying the 1802 Compact

in ceding the jurisdiction over the

lands of the State of Georgia to the St-

ate. pursuant to Article 11, (A.17a-19a)

Article 7 of the Constitution,grants

Petitioner a jury trial in all controver-

sies over $20,00. Petitioner has demanded

- jury trial for a tort Action in CV 479-

7°

Articles 4 and 6 of the Constitution bas-

ed on the 1802 Act, (A. 20a) is violated

by the Judgment secured by the unlawfull

action of the Assistant Attorney in CA-

3092 (A.15a-16a)-states, IT IS ORDERED,

ADJUDGED AND DECREED that the defendant,

Herman Diamond, his servants, agents,em-

ployees, attorneys.successors, and assign-

s, and each of them , be permanently en-

joyned and restrained from engaging in or

permitting suffering directly or in dire-

ctly, any fill or construction operation

on the area in dispute, bounded on the

north by Richardson Creek and the South

by Oatland Island Road, Chatham County,

Georgia..

This Judgment is a clear violation

all Civil Rights pursuant to 42 U.S.C.8

1983, to harm and maliciously damage

Petitioner and to take his property for

a misdemeanor not properly brought before

this Honorable Court, pursuant to Criminal

procedure and the Rule there under and

14

for the violations as stated in the pet-

ition. (A.16a) and to violate Title 33 -

U.S.C. 406, which Act of Congress states

the proper manner in which to prosecute

for criminal viclations and upon convic-

tion the ATTORNEY GENERAL may institute

Civil proceedings, and not the Respond-

ant, Walter's. as an Assistant Attorney.

SMITH v. U.S.,CA. Ga. 1967, 375 F.

2d. 243 certiori denied, 88 S.Ct. 76,

389 U.S.841, 19 L.Ed.2d 106

U.S. v HALL.C.A. CAL.1944, 145 F.2d.

781, Cert. denied, 65 S.Ct. 1016, 324 U.

S. 871, 89 L.Ed. 1425,

The respondant, Walter, did direct

several employees to search by drilling

on his property "°° to see if his

property,the high ground contained any

marshland below the surface and to sur-

vey by topograhic means the elevations

of the lands of petitioner, during the

several hearings and to take several ph-

oto graphs on severa} occassions without

a warrant and in violation of the faws;-

not to trespass on Petitioners property

in violation of Title 18 U.S.C.8 2236

18 U:S.C.8 2236, directs and,;without

probable cause searches property with-

out a search warrant.is fined a $1000.

and for subsequent searches shall be :

fined $ 1000. and or imprisoned for not

more than one year.

The record will show that Petition-

er has filed a brief of finding of facts

and citation of laws to substantiate, his

request for a jury trial and his complaint

nt and fortdamages, along with. the exhib-

its in the New trial in CA 3092 granted

15

RR RR RRR RRR RO OR RINE Ee) SETS RRR END om SEER ENE Ss

on 4th December 1975 upon motion by

the Federal Government, pursuant to Fed.

Rules of Civ. Procedure, RULE 42 (a).

(A. 5a-6a) and since 1975 after 3 hearings

whereas petitioner placed 28 exhibits in

evidence without any objections from the

Goverment Attorneys,_1/ By Mr. Edmund

Booth Jr. of Augusta,Ga.where he is empl-

oyed as an U.S.Assistant District Attorn-

ey.

The District Court is in wiolation

of Article 7, amendment of the U.S.Const-

itution for not granting petitioner a tri-

al to prove his tort actions and violation

of Title 42 U.S.C.8 1983 and the several

article and amendments of the Constituti-

on and the Compact of 1802, for malicious

abuse of legal process of law and the un-

lawfull complaint -without jurisdiction

in the name of the United States contrar

to statutory law and acts of Congress, to

issue a Judgment in favor of Respondent,

Lamar C. Walter, Former U.S.Attorney,and

affirmed by the Court of Appeals Fifth

Circuit,and rehearing denied, 7th October

1980 *(A.8a) Judgment, (A.9a) denial of

rehearing.

Tnhe- respondent has not: testified.in

any of the, hearings inCA 3092 and in the

new trial whith: vacates the original Jud-

ment,and where a new judgment must issue

in a new trial,no final judgment as of

this date has been issued,and the dormant

complaint has run the statue of limitation=

of years.

Where a statue prescribes a particular

mode of procedure for the enforcement of

1 / Mr. Lamar c. Walter was was releived

of his office as Assistant U.S.Attorney in

January 1976.and replaced by Mr. Booth.

16

a penalty for an offense therein created,

That mode of procedure must be followed.

Wharton Criminal Law, 8 253

Title 33 U.S.C.8 406, is the statue

that provides the means and manner that:a

criminal procedure for fine and prison or

both, and ThetAttorney General, ‘MAY'

initiate the Givileproeeedings to secure

a pliminary injunction for the removal of

any obstruction for violations of .

Title 33 U.S.C.8 403.

Therefor an Assistant U.S.District Attor-

ny, such as Mr. Lamar C.Walter,who claims

to represent the United States Government

in his complaint, CA 3092, (A.10a)states

" by and through it's undersigned Counsel'

is prima facia evidence that he has not

complied with the Statutory provisions of

the law, since CA3092 is a civil Complaint.

Repondent is without authority or jurisd-

iction,either to represent the United St-

ates or to have the complaint placed on

the court calender for a hearing as for

violations as to criminal procedure for

violations of Title 33 U.S.C.8 403,

Therefore the Government Attorney is

without authority to waive the criminal

fine and or imprisonment and sue for the

judgment,that is also unauthorized by law.

U.S. v. Morin, DC Ind.1866, Fed CaseNoO

15810,

64 AIR 34.8 10; B, Where officer acts

without jurisdiction.

Therefore the District Court and the

Court: of Appeals Fifth Circuit, hae comm-

itted.a.grave injustice in affirming the

actions of the HeSpondent,and have taken

17

jurisdiction over a civil complaint that

is a 'mere nullity’ and committed grave

and serious violations ofsethe Constitution

and the laws of Georgia and damages to th-

e Petitioner iniissuing a permenant Injun-

tion not authorized by law, and in violat+

ions of his Civil Rights and immunities

under the law.

Where Petitioner has demurried the

complaint and countersued for damages,

all of his legal actions have been ignored

setaside over the past several years,and

have allowed his property to rot, decay

and become useless and worithiless,are dama-

ged beyond recovery, all because he has

stood up for his rights and pursued his

legal means through the courts with proper

procedures and on two occassions have been

denied Certiorarijto this Honorable Court,

the stigma seems to be, ‘The Petitioner is

proceeding, pro se. emphisis added.

The malicious abuse of legal process

and the unauthorized manner to secure the

permenant injunction without jurisdiction

by the Courts and the Respondent requires

the supervision of this Honorable: Court,

to correct and reverse the decisions of

the lower courts and to grant petitioner

the legal means to secure redress for the

malicious and irreparable: damages, by tri-

al by jury.

Respectfully submitted

Arran Beemnad

Herman Diamond, pro se

3610 Macceo Dr.

Savannah, Ga. 31410

(912) 897-2442

18

APPEBDIX

m

la

IN THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT

OF GEORGTA

Savannah Division

Herman Diamond,

Plaintiff

vs.

Lamar C. Walter,

Assistant United

States Attorney,

United States

Department of

Justice, Defendant

Civil Action

No .479-87

a i ee ee See See ee ee”

COMPLAINT

1. Jurisdiction of this Court is in-~

voked. pursuant to 28 U.S.C. § 1331 and..

1343 (4). This is an action at law autho-

rized and instituted pursuant to 42 U.S.C.

§ 1983. The jurisdiction of this Court _

is invoked’ to secure redress by way of *

damages for the violation by Defendant of

rights secured to Plaintiff by Fourth;

Fifth, Sixth, Tenth and Fourteenth Amend-

ments to the Constitution of the United

States, and by 42 U.S.C. § 1983. ‘The pend-

ent jurisdiction of this Court is alsouw=+

invoked to secure redress by way of damages

forsdenials by Defendant of rights secured

to Plaintiff by Georgia Law. SR GRY |

- _- - ovo ths “6p o ed

2. Plaintiff Herman Diamond is.a‘citi-” = ~~

zen of ‘the United States; propertyowner“i « &

and resident of Chatham County, Geereimartias-oand

>) > a a

——

rt

2a

3. Defendant Lamar C. Walter, as

Assistant United States Attorney for the

Southern District of Georgia, and resi-

dent of Chatham County, Georgia, is sued

individually and in his official capacity

as Assistant United States Attorney.

4%, On or about April 5, 1973, Defend-

m ant Lamar C. Walter, acting wnder calor

of law, filed a civil complaint, No. 3092

against Plaintiff Herman Diamond, for vio-

lations of Federal Law pursuant to 33

U.S.C.A. § 403 and 407 and jurisdiction of

this Honorable Court pursuant to 28 U.S.C.

§ 1345, seeking a temporary restraining

order and permanent injunction over Plain-

tiff's property on Oatland Island Road,

Chatham County, Georgia, and asking that

the Court award damages both compensatory

and punitive, and costs for the above action.

5. Defendant Walter, Assistant United

States Attorney, maliciously and without

probable cause, secured a false and mis-

leading affidavit from Dr. Fredrick Marland

onoor about April 5, 1973, stating that

Plaintiff Herman Diamond was filling the

State's marshlands in violation of the State

Marshland Act. |

6. Plaintiff Herman Diamond was charged

by Dr. Frederick Marland with violation of

the Marshland Act on April 4, 1973, and

Plaintiff Herman Diamond was acquitted by

a jury in the State Superior Court for vio-

lation of the Coastal Marshland Act on

January 22, 1974, thereby establishing that

the affidavit used in conjunction with the

complaint was false and misleading and only

referred to a State violation.

7- Defendant Walter, prosecutor for the

United States Government, through false and

altered evidence, caused a permanent

3a

judgment over Plaintiff's property on

Oatland Island Road, Chatham County,

Georgia. This continuous and permanent

injunction denied Plaintiff the right to

any new construction or fill on Plaintiff's

property, thereby denying Plaintiff Herman

Diamond the full use, enjoyment and pro-

tection of his property guaranteed by the

Constitution of the United States under

Article 4 and taking without due process

under Article 5 of the Constitution, and

denial of due process under Article 14 of

the United States Constitution.

8. Defendant Lamar C. Walter is not

authorized by law to institute a complaint

in the name of the United States, third

party or pursuant to 28 U.S.C.A. § 547.

9. Defendant Walter has not presented

a certificate of authorization to institute

a civil complaint in the name of the United

States, pursuant to 28 U.S.C. 510 and 515.

10. Defendant Walter, Assistant United

States Attorney, has no jurisdiction over

Plaintiff Herman Diamond pursuant to 28

U.S.C. § 1345 nor his property. The April

26, 1802 Act of Congress, "The Georgia

Cession" and the State of Georgia's Reso-

lution of Acceptance pursuant to Article II,'

whereas the Federal Government ceded juris-

diction over the lands within the boundaries

of Georgia to the State of Georgia, and as

stated in Georgia Code Ann. 15-201.

11. Defendant Lamar Walter has no juris-

diction. over Plaintiff Herman Diamond or

his property pursuant to 28 U.S.C. 8 547.

12. ~The’ actions of said Defendant as de-

scribed herein have violated the rights of

Plaintiff as secured to him by the Fourth,

Fifth, Sixth, Tenth and Fourteenth Amendments

to the Constitution of the United States, and

by 42 U.S.C. § 1983. Said actions also have

deprived Plaintiff of the right to use, en-

ha

joy and protect his property and from mali-

cious prosecution as secured to him by the

laws of the State of Georgia.

13. Plaintiff claims general damages

arising from the judgment over Plaintiff's

roperty alleged herein in the amount of

75,000.00.

14. Because of the wrongs alleged herein,

Plaintiff was compelled to employ legal

counsel to defend himself and his property

in order to secure a release or removal of

the permanent injunction and defending said

false charges at expense to Plaintiff of

$25,000.00.

15. Plaintiff was compelled by reason of

Defendant's unlawful actions to lose over

100 days from his labor for attendance in

Court. The value of his labor being

$100.00 per day.

16. Plaintiff was greatly humiliated,

pained and shamed by his prosecution and

claims exemplary damages in the amount of

$100,000.00 by reason of aggrevation in the

acts of Defendant set forth above.

17. Plaintiff seeks damages for the tak-

ing of his property from April 5, 1973 at

$100.00 per day. Plaintiff has suffered as

of this date damages in the amount of

$219,000.00.

18. Plaintiff has suffered total damages

in the amount.of $429,000.00.

WHEREAS Plaintiff Herman Diamond prays

that a jury be empannelled to hear his cause,

that he be awarded damages in the amount of

$429,000.00 and his costs, including rea-

sonable attorney's fees.

This 15th day of March, 1979.

Saw Prawend.-

Sa

UNITED STATES DISTRICT CUURT FOR THE

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Herman Diamond, )

Plaintiff,

CIVIL

ih : ACTION

United States of America NO.

and United States Army 475-221

Corps of Engineers,

Savannah District, )

Defendants, )

ORDER

The defendants have filed a motion

to consolidate the above action with

Civil Action Number 3092, United States

v. Herman Diamond, now pending before

this Court. The Court having read and

considered the motion is of the opinion

that consolidation is proper under Rule

42 (a) of the Federal Rules of Civil

Procedure. Accordingly, and for good

cause thus appearing, it is,

©... ORDERED; ADJUDGED, and. DECREED that

6a

hereby consolidated with Civil Action NO.

3092, United States v. Herman Diamond.

This 4 th day of December, 1975.

Alexander A. Lawrence

Chief Judge, United States

District Court, Southern

District of Georgia.

Appeals from the United States District

Court for the Southern District of Geo-

gia.

April 28, 1980

Before Goldberg, Charles Clark and Thomas

A Clark, Circuit Judges.

PER CURIAN; NOT TO BE PUBLISHED

The Court finds that appellant, Herman

Diamond, has the right to rebuild or repa-

ir and to maintain a dock and walkway at

the same location the original dock and w-

alkway were authorized and built under a

previously issued United States Army Engi-

neers permit, and finds that no addition

or removal of fill material on any part of

the lands owned by Diamond in the Richard-

son Creek area is to be required or permi-

tted in connection with any rebuilding, re-

pair or maintenance of such dock and walk-

way, We therefore affirm -/See local Rule

4 Sf

AFFIRMED

é United States v. Diamond, 512 F 2d 157

Sth Cir) Cert denied 423 U.S. 928 (1975)

2/ See N.L.R.B. v. Amalgamated Clothing

Yesgers of America, 430 F.2d 966 (5th Cir)

7a

TITLE 33 CODE OF FEDERAL REGULA--

TIONS,

33 U.S.C. 8 406

Every person and every corporation

that shall violate any of the provisions

of section 401, 403, and 404 of this tit-

le or any rule or regulation made by the

Secretary of the Army in pursuance of the

provisions of section 404 of this title

shall be deemed quilty of a misdemeanor

and on CONVICTION thereof shall be punish-

ed by a fine not exceeding $2500 nor less

than $ 500, or by imprisonment( in the case

of a natural person) not exceeding one year

or by both such punishments, in the discr-

etion of the court. And further, the remo-

val of any structures erected in violation

of the provisions of the said sections ma

be enforced by injunction of any district

Court exercising jurisdiction in any dist-

rict in which such structures may excist,

and proper proceedings to this end may be

instituted under the direction of the

Attorney General of thg United States.

Mar. 3, 1899, c, 423 Ss 12, 30 Stat. 1151;

Feb, 20,1900,c,23, 2, 31 Stat.32; Mar.3,

1911, c. 231, & 291, 36 Stat. 1167.

TITLE 18,CRIMES AND CRIMINAL

PROCEDURE

18 U.S.C. £1

Offenses Classified.

Notwithstanding any Act of Congress to the

contrary;

(1) Any offense punishable by death or im-

prisonment for a term exceed ng one year

is a felony.

(2) Any other offense is a misdemeanor.

ak ee eee een eee ee et ot re ee eR en See ae —_—- —

8a

UNITED STATES DISTRICT COURT

For The

Southern District of Georgia

Savannah Division

Civil Action File

No. CV479-87

Herman Diamond

vs JUDGMENT

Lamar C. Walter, Assistant

United States Attorney,

United States Department

of Justice

SS

This action came on for consideration

before the Court, Honorable B. Avant Eden-

field, United States District Judge, pre-

siding and the issues having been duly

considered and a decision having been duly

rendered,

It is Ordered and Adjudged that in

accordance with the Court's opinion of

January 17, 1980, Judgment is hereby ren-

dered in favor of the Defendant, Lamar C.

Walter, Assistant United States Attorney,

United States Department of Justice, and

against the Plaintiff, Herman Diamond.

Costs are assessed against Plaintiff.

Dated at Savannah, Georgia, this 18th day of

January, 1980.

Henry R. Crumley, Jr.

Clerk of Court

By: Yrtthel

Deputy Clerk

9a

IN THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

No. 80-7121

Herman Diamond,

Plaintiff-Appellant,

versus

Lamar C. Walter, Assistant

United States Attorney,

United States Department

of Justice,

Defendant-Appellee.

ON PETITION FOR REHEARING

( October 7, 1980 )

Before HILL, GARZA and THOMAS A. CLARK,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for

rehearing filed in the above entitled and

numpered cause .be and the same is hereby

denied.

ENTERED FOR THE COURT:

&. oF ted aS “4 Ze Judge

10 a

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

United States of America,

Plaintiff,

CIVIL ACTION

NO. 3092

Vv.

Herman Diamond,

)

)

)

)

)

)

Defendant. )

C OR? hms eS

NOW COMES the Plaintiff, United

States of America, by and through its

undersigned counsel, and complaining of

the Defendant, HERMAN DIAMOND, alleges

and says as follows:

1. This Honorable Court has juris-

diction over this cause ofaction by

virtue of the fact that the United

States of America is the plaintiff here-

in (Title 28, United States Code, Sec-

tion 1345).

2. The defendant is an individual

residing and living within the Southern

District of Georgia.

3. On April 4, 1973, and at times

unknown to the plaintiff, and prior

thereto, and continuing through until

the present time, the defendant and

others acting as agents of said defend-

ant jointly and severally undertook the

fill of estuarine marshlands within the

jia

navigable waters of the United States

in a marsh adjacent to Richardson Creek,

Oatland Island, Chatham County, Georgia;

and thereby threw, discharged, deposited,

caused to be deposited, procured to be

thrown, and suffered to be deposited from

the shore, within the navigable waters

of the United States, refuse, which in-

cludes but is not limited to the follow-

ing: roots or stumps, broken concrete,

construction materials, and dirt, in

violation of the provisions of Title 33

United States Code, Section 407; and

further, defendant has created an ob-

struction to navigation within the navi-

gable waters of the United States, to

wit: the estuarine marshlands adjacent

to Richardson Creek, Oatland Island,

the said obstruction not being affirma-

tively authorized by Congress and, there-

fore, prohibited by and in violation of

Title 33, United States Code, Section

403.

4. No Department of the Army permit

for dumping of fill within the navigable

waters of Richardson Creek, Oatland

Island, has been issued to the defend-

ant. Defendant has not applied for said

permit.

5. Upon information and belief, it

is alleged:..that the defendant has not

ceased the said depositing of refuse

within the navigable waters of the

United States.

12a

6. The said refuse now lying with-

in the estuarine marshlands of the

United States is and represents an ir-

reparable damage and harm to the

plaintiff and to the people of the

United States.

7. The said deposit of refuse with-

in the navigable waters of the United

States, if allowed to remain, will fur-

ther impair and destroy the navigable

waters of Richardson Creek, Oatland

Island.

8. Unless defendant, HERMAN DIAMOND,

and his agents are restrained from fur-

ther depositing of refuse within the

navigable waters of the United States

the same will continue in their efforts

to complete the unauthorized land fill

operation.

WHEREFORE, the plaintiff prays to

the Court:

1. That a permanent Injunction

issue to restrain and enjoin the defend-

ant from further depositing or dumping

of refuse of any kind within the navi-

gable waters of the United States, parti-

cularly in the marshlands of Richardson

Creek, Oatland Island, Chatham County,

Georgia, the said dumping or depositing

of refuse being in direct violation of

the laws of the United States; and

2. That an Order issue mandatorily

compelling the defendant to remove the

said refuse heretofore deposited within

13a

the navigable waters of the United

States in said area; or

3. In the alternative, that the

Court award damages to the plaintiff,

both compensatory and punitive, along

with the costs of this action, and

such other and further relief as the

Court may deem just, reasonable, and

proper. Rane walling .

Lamar C. Walter

Assistant United States

Attorney

Address:

P. O. Box 8999

Savannah, Georgia 31402

’>

ee ——

ita

IN THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN

DISTRICT OF GEORGIA

Savannah Division

United States of America,

Plaintil? Civil Action

vs No. 3092

Herman Diamond,

Defendant

FIRST MOTION

State of Georgia,

ee ee ee See eee See See”

Intervenor

NOW COMES the Defendant, Herman

Diamond and moves to dismiss the Plaintiff's

complaint on the grounds that it fails to

state a claim upon which relief can be

granted against this Defendant.

SMITH & PORTMAN

BY) Net, Sey hen

Attorney for Defendant

15a

United States District Court

Southern District of Georgia

Savannah Division

United States of America]

Civil No.

Ve J

3092

Herman Diamond

JUDGMENT

This cause came on to be heard on

the complaint of the United States of

America, plaintiff, and the Court having

heard oral evidence and admitted ex-

hibits in open court and the Court hav-

ing entered its findings of fact and

conclusions of law on April 17, 1974,

and it further appearing to the court

that the defendant is committing acts

and is about to commit acts as set

forth in plaintiff's complaint, and will

continue to do so unless restrained by

order of this court, and that the said

acts have caused irreparable injury and

damage to the marshlands described in

the complaint and that immediate and

ixneparable injury, loss or damage to

the described area will result and that

the activities.described in.the complaint

have been conducted by Herman Diamond

without a permit from the Secretary of

Army as required by 33 U.S.C. Section

403, and are in direct violation of the

laws of the United States. (con't.)

16a

IT IS ORDERED, ADJUDGED AND DECREED

that the defendant, Herman Diamond, his

servants, agents, employees, attorneys,

successors, and assigns, and each of

them, be permanently enjoined and re-

strained from engaging in or permitting

suffering, or causing, directly or in-

directly, any fill or construction opera-

tions on the area in dispute, bounded on

the north by Richardson Creek and on the

south by Oatland Island Road, Chatham

County, Georgia.

This 17th day of April, 1974.

Alexander A. Lawrence

Chief Judge,

United States District

Court

TITLE 42 U.S.C. 8 1983

Every person who, under color of any

statue, ordinance, regulation, custom,Or

usage, of any State or Territory, subje-

cted, any citizen of the United States or

other person within the jurisdiction there

of to the deprivation of any rights, priv-

aleges, or immunities secured by the Con-

stitution and laws, shall be liable to

the party injured in an action at law,

sult in equity , or other proper vroceed-

ings for redress.

17a

7th Congress] {lst Session

No. 69

GEORGIA CESSION

Communicated to Congress, April 26, 1802

>

Gentlemen of the Senate and the

House of Representatives:

In pursuance of the act entitled,

"An act supplemental to the act, en-

titled An act for an amicable settle-

ment of the limits with the State of

Georgia, and authorizing the establish-

ment of a Government in the Mississippi

territory," James Madison, Secretary

of State, Albert Gallatin, Secretary of

the Treasury, and Levi Lincoln, Attorney

General of the United States, were

appointed commissioners to settle, by

compromise, with the commissioners ap-

pointed by the State of Georgia, the

claims and cession to which the said

act has relation...

Articles of agreement and cession

have accordingly been entered into, and

signed by the said commissioners of the

United States and of Georgia; which, as

they leave a right to Congress to act

upon them legislatively at any time

within six months after their date, I

have thought it my duty immediately to

communicate to the Legislature.

April 26, 1802. bi Sabah ncr sire

18a

City of Washington, April 26, 1802.

Sir:

We have the honor to enclose a copy

of an agreement entered into between the

commissioners of the United States and

those of Georgia in pursuance of the

act, entitled, "An act supplemental to

the act, entitled An act for an amica-

ble settlement of limits with the State

of Georgia, and authorizing the estab-

lishment of a Government in the Missis-

sippi territory."

The nature and importance of the

transaction have induced the insertion

of a clause which renders it necessary

that the subject should be communicated

to Congress, during their present ses-

sion.

We have the honor to be,

very respectfully, sir, your obedient

servants,

JAMES MADISON,

ALBERT GALLATIN,

LEVI LINCOLN.

The President of the United States.

ART. II. The United States accept the

cession above mentioned, and on the

conditions therein expressed: and they

cede to the State of Georgia whatever

claim, right, or title, they may have

to the jurisdiction or soil of any lands

lying within the United States, and out

SC AIL EI LAE CATE INERTIA i AN TOR Sits RELA Pale AAA

19a

of the proper boundaries of any other

State, and situated south of the south-

ern boundaries of the States of Tennessee,

North Carolina, and South Carolina, and,

east of the boundary line hereinabove

described, as the eastern boundary of

the territory ceded by Georgia to the

United States.

In faith whereof the respective

commissioners have signed these presents

and affixed hereunto their seals.

Done at the city of Washington, in

the District of Columbia, this twenty-

fourth day of April, one thousand eight

hundred and two.

JAMES MADISON, [L.S.]

ALBERT GALLATIN, [L.S.]

LEVI LINCOLN, (L.S.]

Commissioners on the part of the United States.

JAMES JACKSON, (L.S.]

ABRAH. BALDWIN, [L.S.]

JOHN MILLEDGE, (L.S.]

Commissioners on the part of the

State of Georgia.

J. Franklin, Senator of the )

United States for )

North Carolina, )

Samuel A. Otis, Secretary of )

the Senate of the )Witnesses

United States, ‘)

John Beckley, Clerk of the House)

of Representatives )

of the United )

States. )

20a

ARTICLES OF THE CONSTITUTION

Art. 4. 8366. .3..7are. it

New States Admitted. New states may be

admitted by the Congress into this

Union; but no new State shall be form-

ed or erected within the Jurisdiction

of any other State; nor any State be

formed by the Junction of two or more

States, or Parts of States, without the

Consent of the Legislatures of the

States concerned as well as of the Con-

gress.

Art. 6. Sec. 1. Parag. 2:

Constitution and Treaties as the Supreme

Law. This Constitution, and the Laws

of the United States which shall be

made in Pursuance thereof; and all

Treaties made or which shall be made,

under the Authority of the United States,

shall be the supreme Law of the Land;

and the Judges in every State shall be

bound thereby, any Thing in the Consti-

tution or Laws of any State to the

Contrary notwithstanding.

GEORGIA STATE CONSTITUTION

Article 1, Sec 6 Para 1, RIPARIAN RIGHTS

Tidewater titles; confirmed, The

Act of the General Assembly approved De-

cember 16,1902, which extends the Title

of ownership of lands abutting on tidal

water to the low water mark is hereby r-

atified and confirmed.

21a

Title 33 U.S.C. Sec. l

REGULATIONS BY SECRETARY OF THE

ARMY FOR NAVIGATION OF WATERS GENERALLY

It shall be the duty of the Secre-

tary of the Army to prescribe such regu-

lations for the use, administration, and

navigation of the navigable waters of

the United States as in his judgment the

public necessity may require for the pro-

tection of life and property, or of

operations of the United States in chan-

nel improvement, covering all matters not

specifically delegated by law to some

other executive department. Such regu-

lations shall be posted, in conspicuous

and appropriate places, for the informa-

tion of the public.

CODE OF FEDERAL REGULATIONS

(title 33, Navigation) 1973

§209.260(K)(1)(ii). (p.362) Shoreward limit

of jurisdiction. Regulatory jurisdiction

in coastal areas extends to the line on

the shore reached by the plane of the

mean (average) high water.

Where precise determination of the

actual location of the line becomes neces~-

sary, it must be established by survey

with reference to the available tidal

datum, preferably averaged over a period

of 18.6 years.

TAMIR. A a cits od ad? te

22a

TITLE 18 U.S.C.§ 1

Offenses Classified,

18 U.S.C.8 1 (1) Any offense punishable by

death or imprisonment for a term exceeding

one year is a felony.”

18 U.S.C. 8 1 (2), Any other offense is a

misdemeanor.

18 U.S.C.8 3, Offense mala prohibita;

For violations of regulatory statues, for

constituting mala prohibita.

18 U.S.C.8 2236 Searches without

warrant.

Whoever, being an officer,agent or employee

of the United States or any department or

agencythereof, engaged in the enforcement

of any law of the United States, searches

any private dwelling used and occupied as

such dwelling without a warrant directing

such searches, or maliciously and without

reasonable cause searches any other build-

ing or PROPERTY without a search warrant,

shall be fined for the first offense not

more than $1,000; and for a subsequent of-

fense shall be fined not more than $1,000

2 imprisoned not more than one year, or

oth.

BOUNDRIES OF THE STATE OF GEORGIA.

Ga, Code aatOly Boundries of the State.

he boundries of Georgia as deduced from

the_Constitution of Beafort, The Articles

of Cession and agreement with the United

States of America, entered into on the 24

th of April 1802,

23a

LAWS OF GEORGIA

GA. Code, 15-201: Extent of Sovereignty

and Jurisdiction, of this state extend

to all places within the limits of her

boundries, Except so far as she has vol-

untarily ceded the same to the United S-

tates or adjacent states over a particu-

lar localities.

GA’ Code; 85-1310; Levees and ditches,Co-

nstruction Authorized, All persons owning

or who may hereafter own lands on any w-

atercource are authorized and empowered

to ditch and embank their lands, so as to

protect the same from freshets and over-

flows in the said watercourse: Provided

always that the said ditching and embank

ing does not divert said watercourse from

its ordinary channel.

Ga. Code; 105-1401; Interfering with the

enjoyment of private property, being an

obsolute right of every citizen, every

act of another which unlawfully interfer

es with such enjoyment is a tort for wh-

ich an action shall lie.

GA Code, 105-1406; Damages for continu-~

ing trespass, are limited to those which

have occurred before action is commenced

Subsequent damages flowing from a conti-

nnuance of the trespass gives a new cau-

se of action.

Ga. Code; /@5-1402 ; Bare possession of

lands shall authorize the possessor to

recover damages from any person who sha-

11 wrongfully, in any manner, interfere

with such possession.

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