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Driver Licensing vs. the Right to Travel
The entirety of what you find below is transcribed exactly from what was sent
to me by a fellow liberty-minded person. It is itself a transcription of a
brief, not a direct, per-character copy of the brief. This is unfortunate, but
I'm trying to nail down some of the references, and especially some of the cases
in which this particular brief was used.
--Karl Kleinpaste, March 14, 1995.
The following has been used in at least three states (Pennsylvania, Ohio, and
West Virginia) as a legal brief to support a demand for dismissal of charges of
"driving without a license." It is the argument that was the reason for charges
being dropped, or for a "win" in court against the argument that free people can
have their right to travel regulated by their servants.
The forgotten legal maxim is that free people have a right to travel on the
roads which are provided by their servants for that purpose, using ordinary
transportation of the day. Licensing cannot be required of free people, because
taking on the restrictions of a license requires the surrender of a right. The
driver's license can be required of people who use the highways for trade,
commerce, or hire; that is, if they earn their living on the road, and if they
use extraordinary machines on the roads. In other words, if you are not using
the highways for profit, you cannot be required to have a driver's license.
This brief or the right it demonstrates is no substitute for either being
safe on the road or for learning the subject of rights versus regulations
thoroughly before attempting to use or act upon this information.
BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION
NOW, comes the Accused, appearing specially and not generally or voluntarily, but
under threat of arrest if he failed to do so, with this "BRIEF IN SUPPORT OF
NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION," stating as follows:
ARGUMENT
If ever a judge understood the public's right to use the
public roads, it was Justice Tolman of the Supreme Court of the State of
Washington. Justice Tolman stated:
- "Complete freedom of the highways is so old and well established a
blessing that we have forgotten the days of the Robber Barons and toll roads,
and yet, under an act like this, arbitrarily administered, the highways may be
completely monopolized, if, through lack of interest, the people submit, then
they may look to see the most sacred of their liberties taken from them one by
one, by more or less rapid encroachment." Robertson vs. Department of
Public Works, 180 Wash 133, 147.
The words of Justice Tolman ring most prophetically in the ears of Citizens
throughout the country today as the use of the public roads has been monopolized
by the very entity which has been empowered to stand guard over our freedoms,
i.e., that of state government.
RIGHTS
The "most sacred of liberties" of which Justice Tolman spoke was
personal liberty. The definition of personal liberty is:
- "Personal liberty, or the Right to enjoyment of life and liberty, is one
of the fundamental or natural Rights, which has been protected by its
inclusion as a guarantee in the various constitutions, which is not derived
from, or dependent on, the U.S. Constitution, which may not be submitted to a
vote and may not depend on the outcome of an election. It is one of the most
sacred and valuable Rights, as sacred as the Right to private
property...and is regarded as inalienable." 16 C.J.S., Constitutional
Law, Sect.202, p.987.
This concept is further amplified by the
definition of personal liberty:
- "Personal liberty largely consists of the Right of locomotion -- to go
where and when one pleases -- only so far restrained as the Rights of others
may make it necessary for the welfare of all other citizens. The Right of the
Citizen to travel upon the public highways and to transport his property
thereon, by horsedrawn carriage, wagon, or automobile, is not a mere
privilege which may be permitted or prohibited at will, but the common
Right which he has under his Right to life, liberty, and the pursuit of
happiness. Under this Constitutional guarantee one may, therefore, under
normal conditions, travel at his inclination along the public highways or in
public places, and while conducting himself in an orderly and decent manner,
neither interfering with nor disturbing another's Rights, he will be
protected, not only in his person, but in his safe conduct." [emphasis added]
II Am.Jur. (1st) Constitutional Law, Sect.329, p.1135.
and further...
- "Personal liberty -- consists of the power of locomotion, of changing
situations, of removing one's person to whatever place one's inclination may
direct, without imprisonment or restraint unless by due process of law." 1
Blackstone's Commentary 134; Hare, Constitution__.777; Bovier's Law
Dictionary, 1914 ed., Black's Law Dictionary, 5th ed.
Justice Tolman was concerned about the State prohibiting the Citizen from the
"most sacred of his liberties," the Right of movement, the Right of moving one's
self from place to place without threat of imprisonment, the Right to use the
public roads in the ordinary course of life.
When the State allows the formation of a corporation it may control its
creation by establishing guidelines (statutes) for its operation (charters).
Corporations who use the roads in the course of business do not use the roads in
the ordinary course of life. There is a difference between a corporation and an
individual. The United States Supreme Court has stated:
- "...We are of the opinion that there is a clear distinction in this
particular between an individual and a corporation, and that the latter
has no right to refuse to submit its books and papers for examination
on the suit of the State. The individual may stand upon his Constitutional
Rights as a Citizen. He is entitled to carry on his private
business in his own way. His power to contract is unlimited. He owes no duty
to the State or to his neighbors to divulge his business, or to open his doors
to investigation, so far as it may tend to incriminate him. He owes no such
duty to the State, since he receives nothing therefrom, beyond the protection
of his life, liberty, and property. His Rights are such as the law of the
land long antecedent to the organization of the state, and can only be taken
from him by due process of law, and in accordance with the Constitution. Among
his Rights are the refusal to incriminate himself, and the immunity of
himself and his property from arrest or seizure except under warrant of
law. He owes nothing to the public so long as he does not trespass upon
their rights.
- "Upon the other hand, the corporation is a creature of the state.
It is presumed to be incorporated for the benefit of the public. It receives
certain special privileges and franchises, and holds them subject to the laws
of the state and the limitations of its charter. Its rights to act as a
corporation are only preserved to it so long as it obeys the laws of its
creation. There is a reserved right in the legislature to investigate its
contracts and find out whether it has exceeded its powers. It would be a
strange anomaly to hold that the State, having chartered a corporation to make
use of certain franchises, could not in exercise of its sovereignty inquire
how those franchises had been employed, and whether they had been abused, and
demand the production of corporate books and papers for that purpose."
[emphasis added] Hale vs. Hinkel, 201 US 43, 74-75.
Corporations engaged in mercantile equity fall under the purview of the
State's admiralty jurisdiction, and the public at large must be protected from
their activities, as they (the corporations) are engaged in business for profit.
- "...Based upon the fundamental ground that the sovereign state has the
plenary control of the streets and highways in the exercise of its police
power (see police power, infra.), may absolutely prohibit the use of the
streets as a place for the prosecution of a private business for gain. They
all recognize the fundamental distinction between the ordinary Right of the
Citizen to use the streets in the usual way and the use of the streets as a
place of business or a main instrumentality of business for private gain. The
former is a common Right, the latter is an extraordinary use. As to the former
the legislative power is confined to regulation, as to the latter it is
plenary and extends even to absolute prohibition. Since the use of the streets
by a common carrier in the prosecution of its business as such is not a right
but a mere license of privilege." Hadfield vs. Lundin, 98 Wash 657l,
168, p.516.
It will be necessary to review early cases and legal authority in order to
reach a lawfully correct theory dealing with this Right or "privilege." We will
attempt to reach a sound conclusion as to what is a "Right to use the road" and
what is a "privilege to use the road". Once reaching this determination, we
shall then apply those positions to modern case decision.
- "Where rights secured by the Constitution are involved, there can be no
rule making or legislation which would abrogate them." Miranda vs.
Arizona, 384 US 436, 491.
and...
- "The claim and exercise of a constitutional Right cannot be converted into
a crime." Miller vs. U.S., 230 F. 486, 489.
and...
- "There can be no sanction or penalty imposed upon one because of this
exercise of constitutional Rights." Snerer vs. Cullen, 481 F. 946.
Streets and highways are established and maintained for the purpose of travel
and transportation by the public. Such travel may be for business or pleasure.
- "The use of the highways for the purpose of travel and transportation is
not a mere privilege, but a common and fundamental Right of which the
public and the individual cannot be rightfully deprived." [emphasis added]
Chicago Motor Coach vs. Chicago, 169 NE 22; Ligare vs. Chicago,
28 NE 934; Boon vs. Clark, 214 SSW 607; 25 Am.Jur. (1st) Highways
Sect.163.
and...
- "The Right of the Citizen to travel upon the public highways and to
transport his property thereon, either by horse drawn carriage or by
automobile, is not a mere privilege which a city can prohibit or permit
at will, but a common Right which he has under the right to life, liberty, and
the pursuit of happiness." [emphasis added] Thompson vs. Smith, 154 SE
579.
So we can see that a Citizen has a Right to travel upon the public highways
by automobile and the Citizen cannot be rightfully deprived of his Liberty. So
where does the misconception that the use of the public road is always and only
a privilege come from?
- "...For while a Citizen has the Right to travel upon the public highways
and to transport his property thereon, that Right does not extend to the use
of the highways, either in whole or in part, as a place for private gain. For
the latter purpose no person has a vested right to use the highways of the
state, but is a privilege or a license which the legislature may grant or
withhold at its discretion." State vs. Johnson, 243 P. 1073;
Hadfield, supra; Cummins vs. Homes, 155 P. 171; Packard vs.
Banton, 44 S.Ct. 256; and other cases too numerous to mention.
Here the court held that a Citizen has the Right to travel upon the public
highways, but that he did not have the right to conduct business upon the
highways. On this point of law all authorities are unanimous.
- "Heretofore the court has held, and we think correctly, that while a
Citizen has the Right to travel upon the public highways and to transport his
property thereon, that Right does not extend to the use of the highways,
either in whole or in part, as a place of business for private gain."
Barney vs. Board of Railroad Commissioners, 17 P.2d 82; Willis vs.
Buck, 263 P.l 982.
and...
- "The right of the citizen to travel upon the highway and to transport his
property thereon, in the ordinary course of life and business, differs
radically and obviously from that of one who makes the highway his place of
business for private gain in the running of a stagecoach or omnibus." State
vs. City of Spokane, 186 P. 864.
What is this Right of the Citizen which differs so "radically and obviously"
from one who uses the highway as a place of business? Who better to enlighten us
than Justice Tolman of the Supreme Court of Washington State? In State vs.
City of Spokane, supra, the Court also noted a very "radical and obvious"
difference, but went on to explain just what the difference is:
- "The former is the usual and ordinary right of the Citizen, a common right
to all, while the latter is special, unusual, and extraordinary."
and...
- "This distinction, elementary and fundamental in character, is recognized
by all the authorities." State vs. City of Spokane, supra.
This position does not hang precariously upon only a few cases, but has been
proclaimed by an impressive array of cases ranging from the state courts to the
federal courts.
- "the right of the Citizen to travel upon the highway and to transport his
property thereon in the ordinary course of life and business, differs
radically and obviously from that of one who makes the highway his place of
business and uses it for private gain in the running of a stagecoach or
omnibus. The former is the usual and ordinary right of the Citizen, a right
common to all, while the latter is special, unusual, and extraordinary." Ex
Parte Dickey, (Dickey vs. Davis), 85 SE 781.
and...
- "The right of the Citizen to travel upon the public highways and to
transport his property thereon, in the ordinary course of life and business,
is a common right which he has under the right to enjoy life and liberty, to
acquire and possess property, and to pursue happiness and safety. It includes
the right, in so doing, to use the ordinary and usual conveyances of the day,
and under the existing modes of travel, includes the right to drive a horse
drawn carriage or wagon thereon or to operate an automobile thereon, for the
usual and ordinary purpose of life and business." Teche Lines vs. Danforth,
Miss., 12 S.2d 784; Thompson vs. Smith, supra.
There is no dissent among various authorities as to this position. (See
Am.Jur. [1st] Const. Law, 329 and corresponding Am. Jur. [2nd].)
- "Personal liberty -- or the right to enjoyment of life and liberty -- is
one of the fundamental or natural rights, which has been protected by its
inclusion as a guarantee in the various constitutions, which is not derived
from nor dependent on the U.S. Constitution... It is one of the most sacred
and valuable rights [remember the words of Justice Tolman, supra.] as sacred
as the right to private property...and is regarded as inalienable." 16 C.J.S.
Const. Law, Sect.202, p.987.
As we can see, the distinction between a "Right" to use the public roads and
a "privilege" to use the public roads is drawn upon the line of "using the road
as a place of business" and the various state courts have held so. But what have
the U.S. courts held on this point?
- "First, it is well established law that the highways of the state are
public property, and their primary and preferred use is for private purposes,
and that their use for purposes of gain is special and extraordinary which,
generally at least, the legislature may prohibit or condition as it sees fit."
Stephenson vs. Rinford, 287 US 251; Pachard vs Banton, 264 US
140, and cases cited; Frost and F. Trucking Co. vs. Railroad
Commission, 271 US 592; Railroad commission vs. Inter-City Forwarding
Co., 57 SW.2d 290; Parlett Cooperative vs. Tidewater Lines, 164 A.
313.
So what is a privilege to use the roads? By now it should be apparent even to
the "learned" that an attempt to use the road as a place of business is a
privilege. The distinction must be drawn between...
- Travelling upon and transporting one's property upon the public roads,
which is our Right; and...
- Using the public roads as a place of business or a main instrumentality of
business, which is a privilege.
- "[The roads]...are constructed and maintained at public expense, and no
person therefore, can insist that he has, or may acquire, a vested right to
their use in carrying on a commercial business." Ex Parte Sterling, 53
SW.2d 294; Barney vs. Railroad Commissioners, 17 P.2d 82; Stephenson
vs. Binford, supra.
- "When the public highways are made the place of business the state has a
right to regulate their use in the interest of safety and convenience of the
public as well as the preservation of the highways." Barney vs. Railroad
Commissioners, supra.
- "[The state's] right to regulate such use is based upon the nature of the
business and the use of the highways in connection therewith." Ibid.
- "We know of no inherent right in one to use the highways for commercial
purposes. The highways are primarily for the use of the public, and in the
interest of the public, the state may prohibit or regulate...the use of the
highways for gain." Robertson vs. Dept. of Public Works, supra.
There should be considerable authority on a subject as important a this
deprivation of the liberty of the individual "using the roads in the ordinary
course of life and business." However, it should be noted that extensive
research has not turned up one case or authority acknowledging the state's power
to convert the individual's right to travel upon the public roads into a
"privilege."
Therefore, it is concluded that the Citizen does have a "Right" to travel and
transport his property upon the public highways and roads and the exercise of
this Right is not a "privilege."
DEFINITIONS
In order to understand the correct application of the
statute in question, we must first define the terms used in connection with this
point of law. As will be shown, many terms used today do not, in their legal
context, mean what we assume they mean, thus resulting in the misapplication of
statutes in the instant case.
AUTOMOBILE AND MOTOR VEHICLE
There is a clear distinction between an
automobile and a motor vehicle. An automobile has been defined as:
- "The word `automobile' connotes a pleasure vehicle designed for the
transportation of persons on highways." American Mutual Liability Ins. Co.,
vs. Chaput, 60 A.2d 118, 120; 95 NH 200.
While the distinction is made clear between the two as the courts have
stated:
- "A motor vehicle or automobile for hire is a motor vehicle, other than an
automobile stage, used for the transportation of persons for which
remuneration is received." International Motor Transit Co. vs. Seattle,
251 P. 120.
- The term `motor vehicle' is different and broader than the word
`automobile.'" City of Dayton vs. DeBrosse, 23 NE.2d 647, 650; 62 Ohio
App. 232.
- The distinction is made very clear in Title 18 USC 31:
- "Motor vehicle" means every description or other contrivance propelled or
drawn by mechanical power and used for commercial purposes on the
highways in the transportation of passengers, or passengers and property.
- "Used for commercial purposes" means the carriage of persons or
property for any fare, fee, rate, charge or other considerations, or directly
or indirectly in connection with any business, or other undertaking intended
for profit.
Clearly, an automobile is private property in use for private purposes, while
a motor vehicle is a machine which may be used upon the highways for
trade, commerce, or hire.
TRAVEL
The term "travel" is a significant term and is defined as:
- "The term `travel' and `traveler' are usually construed in their broad and
general sense...so as to include all those who rightfully use the highways
viatically (when being reimbursed for expenses) and who have occasion
to pass over them for the purpose of business, convenience, or pleasure."
[emphasis added] 25 Am.Jur. (1st) Highways, Sect.427, p.717.
- "Traveler -- One who passes from place to place, whether for pleasure,
instruction, business, or health." Locket vs. State, 47 Ala. 45;
Bovier's Law Dictionary, 1914 ed., p. 3309.
- "Travel -- To journey or to pass through or over; as a country district,
road, etc. To go from one place to another, whether on foot, or horseback, or
in any conveyance as a train, an automobile, carriage, ship, or aircraft; Make
a journey." Century Dictionary, p.2034.
Therefore, the term "travel" or "traveler" refers to one who uses a
conveyance to go from one place to another, and included all those who use the
highways as a matter of Right.
Notice that in all these definitions the phrase "for hire" never occurs. This
term "travel" or "traveler" implies, by definition, one who uses the road as a
means to move from one place to another.
Therefore, one who uses the road in the ordinary course of life and business
for the purpose of travel and transportation is a traveler.
DRIVER
The term "driver" in contradistinction to "traveler,": is
defined as:
- "Driver -- One employed in conducting a coach, carriage, wagon, or other
vehicle..." Bovier's Law Dictionary, 1914 ed., p. 940.
Notice that this definition includes one who is "employed" in conducting a
vehicle. It should be self-evident that this person could not be "travelling" on
a journey, but is using the road as a place of business.
OPERATOR
Today we assume that a "traveler" is a "driver," and a
"driver" is an "operator." However, this is not the case.
- "It will be observed from the language of the ordinance that a distinction
is to be drawn between the terms `operator' and `driver'; the `operator' of
the service car being the person who is licensed to have the car on the
streets in the business of carrying passengers for hire; while the `driver' is
the one who actually drives the car. However, in the actual prosecution of
business, it was possible for the same person to be both `operator' and
`driver.'" Newbill vs. Union Indemnity Co., 60 SE.2d 658.
To further clarify the definition of an "operator" the court observed that
this was a vehicle "for hire" and that it was in the business of carrying
passengers.
This definition would seem to describe a person who is using the road as a
place of business, or in other words, a person engaged in the "privilege" of
using the road for gain.
This definition, then, is a further clarification of the distinction
mentioned earlier, and therefore:
- Travelling upon and transporting one's property upon the public roads as a
matter of Right meets the definition of a traveler.
- Using the road as a place of business as a matter of privilege meets the
definition of a driver or an operator or both.
TRAFFIC
Having defined the terms "automobile," "motor vehicle,"
"traveler," "driver," and "operator," the next term to define is "traffic":
- "...Traffic thereon is to some extent destructive, therefore, the
prevention of unnecessary duplication of auto transportation service will
lengthen the life of the highways or reduce the cost of maintenance, the
revenue derived by the state...will also tend toward the public welfare by
producing at the expense of those operating for private gain, some small part
of the cost of repairing the wear..." Northern Pacific R.R. Co. vs.
Schoenfeldt, 213 P. 26.
Note: In the above, Justice Tolman expounded upon the key of raising revenue
by taxing the "privilege" to use the public roads "at the expense of those
operating for gain."
In this case, the word "traffic" is used in conjunction with the unnecessary
Auto Transportation Service, or in other words, "vehicles for hire." The word
"traffic" is another word which is to be strictly construed to the conducting of
business.
- "Traffic -- Commerce, trade, sale or exchange of merchandise, bills,
money, or the like. The passing of goods and commodities from one person to
another for an equivalent in goods or money..." Bovier's Law Dictionary, 1914
ed., p. 3307.
Here again, notice that this definition refers to one
"conducting business." No mention is made of one who is travelling in his
automobile. This definition is of one who is engaged in the passing of a
commodity or goods in exchange for money, i.e.., vehicles for hire.
Furthermore, the word "traffic" and "travel" must have different meanings
which the courts recognize. The difference is recognized in Ex Parte
Dickey, supra:
- "...in addition to this, cabs, hackney coaches, omnibuses, taxicabs, and
hacks, when unnecessarily numerous, interfere with the ordinary traffic and
travel and obstruct them."
The court, by using both terms, signified its recognition of a distinction
between the two. But, what was the distinction? We have already defined both
terms, but to clear up any doubt:
- "The word `traffic' is manifestly used here in secondary sense, and has
reference to the business of transportation rather than to its primary meaning
of interchange of commodities." Allen vs. City of Bellingham, 163 P.
18.
Here the Supreme Court of the State of Washington has defined the
word "traffic" (in either its primary or secondary sense) in reference to
business, and not to mere travel! So it is clear that the term "traffic"
is business related and therefore, it is a "privilege." The net result being
that "traffic" is brought under the (police) power of the legislature. The term
has no application to one who is not using the roads as a place of business.
LICENSE
It seems only proper to define the word "license," as the
definition of this word will be extremely important in understanding the
statutes as they are properly applied:
- "The permission, by competent authority to do an act which without
permission, would be illegal, a trespass, or a tort." People vs.
Henderson, 218 NW.2d 2, 4.
- "Leave to do a thing which licensor could prevent." Western Electric
Co. vs. Pacent Reproducer Corp., 42 F.2d 116, 118.
In order for these two definitions to apply in this case, the state would
have to take up the position that the exercise of a Constitutional Right to use
the public roads in the ordinary course of life and business is illegal, a
trespass, or a tort, which the state could then regulate or prevent.
This position, however, would raise magnitudinous Constitutional questions as
this position would be diametrically opposed to fundamental Constitutional Law.
(See "Conversion of a Right to a Crime," infra.)
In the instant case, the proper definition of a "license" is:
- "a permit, granted by an appropriate governmental body, generally for
consideration, to a person, firm, or corporation, to pursue some occupation
or to carry on some business which is subject to regulation under the
police power." [emphasis added] Rosenblatt vs. California State Board of
Pharmacy, 158 P.2d 199, 203.
This definition would fall more in line with the "privilege" of carrying on
business on the streets.
Most people tend to think that "licensing" is imposed by the state for the
purpose of raising revenue, yet there may well be more subtle reasons
contemplated; for when one seeks permission from someone to do something he
invokes the jurisdiction of the "licensor" which, in this case, is the state. In
essence, the licensee may well be seeking to be regulated by the "licensor."
- "A license fee is a charge made primarily for regulation, with the fee to
cover costs and expenses of supervision or regulation." State vs.
Jackson, 60 Wisc.2d 700; 211 NW.2d 480, 487.
The fee is the price; the regulation or control of the licensee is the
real aim of the legislation.
Are these licenses really used to fund legitimate government, or are they
nothing more than a subtle introduction of police power into every facet of our
lives? Have our "enforcement agencies" been diverted from crime prevention,
perhaps through no fault of their own, instead now busying themselves as they
"check" our papers to see that all are properly endorsed by the state?
How much longer will it be before we are forced to get a license for our lawn
mowers, or before our wives will need a license for her "blender" or "mixer?"
They all have motors on them and the state can always use the revenue.
POLICE POWER
The confusion of the police power with the power of
taxation usually arises in cases where the police power has affixed a penalty to
a certain act, or where it requires licenses to be obtained and a certain sum be
paid for certain occupations. The power used in the instant case cannot,
however, be the power of taxation since an attempt to levy a tax upon a Right
would be open to Constitutional objection. (See "taxing power," infra.)
Each law relating to the use of police power must ask three questions:
- "1. Is there threatened danger?
- 2. Does a regulation involve a Constitutional Right?
- 3. Is this regulation reasonable?" People vs. Smith, 108 Am.St.Rep.
715; Bovier's Law Dictionary, 1914 ed., under "Police Power."
When applying these three questions to the statute in question, some very
important issues emerge.
First, "is there a threatened danger" in the individual using his automobile
on the public highways, in the ordinary course of life and business?
The answer is No! There is nothing inherently dangerous in the use of
an automobile when it is carefully managed. Their guidance, speed, and noise are
subject to a quick and easy control, under a competent and considerate manager,
it is as harmless on the road as a horse and buggy.
It is the manner of managing the automobile, and that alone, which threatens
the safety of the public. The ability to stop quickly and to respond quickly to
guidance would seem to make the automobile one of the least dangerous
conveyances. (See Yale Law Journal, December, 1905.)
- "The automobile is not inherently dangerous." Cohens vs. Meadow, 89
SE 876; Blair vs. Broadmore, 93 SE 532.
To deprive all persons of the Right to use the road in the ordinary course of
life and business, because one might, in the future, become dangerous, would be
a deprivation not only of the Right to travel, but also the Right to due
process. (See "Due Process," infra.)
Next, does the regulation involve a Constitutional Right?
This question has already been addressed and answered in this brief, and need
not be reinforced other than to remind this Court that this Citizen does have
the Right to travel upon the public highway by automobile in the ordinary course
of life and business. It can therefore be concluded that this regulation does
involve a Constitutional Right.
The third question is the most important in this case. "Is this regulation
reasonable?"
The answer is No! It will be shown later in "Regulation," infra., that
this licensing statute is oppressive and could be effectively administered by
less oppressive means.
Although the Fourteenth Amendment does not interfere with the proper exercise
of the police power, in accordance with the general principle that the power
must be exercised so as not to invade unreasonably the rights guaranteed by the
United States Constitution, it is established beyond question that every state
power, including the police power, is limited by the Fourteenth Amendment (and
others) and by the inhibitions there imposed.
Moreover, the ultimate test of the propriety of police power regulations must
be found in the Fourteenth Amendment, since it operates to limit the field of
the police power to the extent of preventing the enforcement of statutes in
denial of Rights that the Amendment protects. (See Parks vs. State, 64 NE
682.)
- "With regard particularly to the U.S. Constitution, it is elementary that
a Right secured or protected by that document cannot be overthrown or impaired
by any state police authority." Connolly vs. Union Sewer Pipe Co., 184
US 540; Lafarier vs. Grand Trunk R.R. Co., 24 A. 848; O'Neil vs.
Providence Amusement Co., 108 A. 887.
- "The police power of the state must be exercised in subordination
to the provisions of the U.S. Constitution." [emphasis added] Panhandle
Eastern Pipeline Co. vs. State Highway Commission, 294 US 613;
Bacahanan vs. Wanley, 245 US 60.
- "It is well settled that the Constitutional Rights protected from invasion
by the police power, include Rights safeguarded both by express and implied
prohibitions in the Constitutions." Tiche vs. Osborne, 131 A. 60.
- "As a rule, fundamental limitations of regulations under the police power
are found in the spirit of the Constitutions, not in the letter, although they
are just as efficient as if expressed in the clearest language." Mehlos vs.
Milwaukee, 146 NW 882.
As it applies in the instant case, the language of the Fifth Amendment is
clear:
- No person shall be...deprived of Life, Liberty, or Property without due
process of law.
As has been shown, the courts at all levels have firmly established an
absolute Right to travel.
In the instant case, the state, by applying commercial statutes to all
entities, natural and artificial persons alike, has deprived this free and
natural person of the Right of Liberty, without cause and without due process of
law.
DUE PROCESS
- "The essential elements of due process of law are...Notice and The
Opportunity to defend." Simon vs. Craft, 182 US 427.
Yet, not one individual has been given notice of the loss of his/her Right,
let alone before signing the license (contract). Nor was the Citizen given any
opportunity to defend against the loss of his/her right to travel, by
automobile, on the highways, in the ordinary course of life and business. This
amounts to an arbitrary deprivation of Liberty.
- "There should be no arbitrary deprivation of Life or Liberty..."
Barbour vs. Connolly, 113 US 27, 31; Yick Wo vs. Hopkins, 118 US
356.
and...
- "The right to travel is part of the Liberty of which a citizen cannot
deprived without due process of law under the Fifth Amendment. This Right was
emerging as early as the Magna Carta." Kent vs. Dulles, 357 US 116
(1958).
The focal point of this question of police power and due process must balance
upon the point of making the public highways a safe place for the public to
travel. If a man travels in a manner that creates actual damage, an action would
lie (civilly) for recovery of damages. The state could then also proceed against
the individual to deprive him of his Right to use the public highways, for
cause. This process would fulfill the due process requirements of the Fifth
Amendment while at the same time insuring that Rights guaranteed by the U.S.
Constitution and the state constitutions would be protected.
But unless or until harm or damage (a crime) is committed, there is no cause
for interference in the private affairs or actions of a Citizen.
One of the most famous and perhaps the most quoted definitions of due process
of law, is that of Daniel Webster in his Dartmouth College Case (4 Wheat 518),
in which he declared that by due process is meant "a law which hears before it
condemns, which proceeds upon inquiry, and renders judgment only after trial."
(See also State vs. Strasburg, 110 P. 1020; Dennis vs. Moses, 52
P. 333.)
Somewhat similar is the statement that is a rule as old as the law that "no
one shall be personally bound (restricted) until he has had his day in court,"
by which is meant, until he has been duly cited to appear and has been afforded
an opportunity to be heard. Judgment without such citation and opportunity lacks
all the attributes of a judicial determination; it is judicial usurpation and it
is oppressive and can never be upheld where it is fairly administered. (12
Am.Jur. [1st] Const. Law, Sect.573, p.269.)
Note: This sounds like the process used to deprive one of the "privilege" of
operating a motor vehicle "for hire." It should be kept in mind, however, that
we are discussing the arbitrary deprivation of the Right to use the road that
all citizens have "in common."
The futility of the state's position can be most easily observed in the 1959
Washington Attorney General's opinion on a similar issue:
- "The distinction between the Right of the Citizen to use the public
highways for private, rather than commercial purposes is recognized..."
and...
- "Under its power to regulate private uses of our highways, our legislature
has required that motor vehicle operators be licensed (I.C. 49-307).
Undoubtedly, the primary purpose of this requirement is to insure, as far as
possible, that all motor vehicle operators will be competent and qualified,
thereby reducing the potential hazard or risk of harm, to which other users of
the highways might otherwise be subject. But once having complied with this
regulatory provision, by obtaining the required license, a motorist enjoys the
privilege of travelling freely upon the highways..." Washington A.G.O. 59-60
No. 88, p. 11.
This alarming opinion appears to be saying that every person using an
automobile as a matter of Right, must give up the Right and convert the Right
into a privilege. This is accomplished under the guise of regulation. This
statement is indicative of the insensitivity, even the ignorance, of the
government to the limits placed upon governments by and through the several
constitutions.
This legal theory may have been able to stand in 1959; however, as of 1966,
in the United States Supreme Court decision in Miranda, even this weak
defense of the state's actions must fall.
- "Where rights secured by the Constitution are involved, there can be no
rule making or legislation which would abrogate them." Miranda vs.
Arizona, 384 US 436, 491.
Thus the legislature does not have the power to abrogate the Citizen's Right
to travel upon the public roads, by passing legislation forcing the citizen to
waive his Right and convert that Right into a privilege. Furthermore, we have
previously established that this "privilege" has been defined as applying only
to those who are "conducting business in the streets" or "operating for-hire
vehicles."
The legislature has attempted, by legislative fiat, to deprive the Citizen of
his Right to use the roads in the ordinary course of life and business, without
affording the Citizen the safeguard of "due process of law." This has been
accomplished under supposed powers of regulation.
REGULATION
- "In addition to the requirement that regulations governing the use of the
highways must not be violative of constitutional guarantees, the prime
essentials of such regulation are reasonableness, impartiality, and
definiteness or certainty." 25 Am.Jur. (1st) Highways, Sect.260.
and...
- "Moreover, a distinction must be observed between the regulation of an
activity which may be engaged in as a matter of right and one carried on by
government sufferance of permission." Davis vs. Massachusetts, 167 US
43; Pachard vs. Banton, supra.
One can say for certain that these regulations are impartial since they are
being applied to all, even though they are clearly beyond the limits of the
legislative powers. However, we must consider whether such regulations are
reasonable and non-violative of constitutional guarantees.
First, let us consider the reasonableness of this statute requiring all
persons to be licensed (presuming that we are applying this statute to all
persons using the public roads). In determining the reasonableness of the
statute we need only ask two questions:
1. Does the statute accomplish its stated goal?
- The answer is No!
The attempted explanation for this regulation "to insure the safety of the
public by insuring, as much as possible, that all are competent and qualified."
However, one can keep his license without retesting, from the time he/she is
first licensed until the day he/she dies, without regard to the competency of
the person, by merely renewing said license before it expires. It is therefore
possible to completely skirt the goal of this attempted regulation, thus proving
that this regulation does not accomplish its goal.
Furthermore, by testing and licensing, the state gives the appearance of
underwriting the competence of the licensees, and could therefore be held liable
for failures, accidents, etc. caused by licensees.
2. Is the statute reasonable?
- The answer is No!
This statute cannot be determined to be reasonable since it requires to the
Citizen to give up his or her natural Right to travel unrestricted in order to
accept the privilege. The purported goal of this statute could be met by much
less oppressive regulations, i.e., competency tests and certificates of
competency before using an automobile upon the public roads. (This is exactly
the situation in the aviation sector.)
But isn't this what we have now?
The answer is No! The real purpose of this license is much more insidious.
When one signs the license, he/she gives up his/her Constitutional Right to
travel in order to accept and exercise a privilege. After signing the license, a
quasi-contract, the Citizen has to give the state his/her consent to be
prosecuted for constructive crimes and quasi-criminal actions where there is no
harm done and no damaged property.
These prosecutions take place without affording the Citizen of their
Constitutional Rights and guarantees such a the Right to a trial by jury of
twelve persons and the Right to counsel, as well as the normal safeguards such
as proof of intent and a corpus dilecti and a grand jury indictment. These
unconstitutional prosecutions take place because the Citizen is exercising a
privilege and has given his/her "implied consent" to legislative enactments
designed to control interstate commerce, a regulatable enterprise under the
police power of the state.
We must now conclude that the Citizen is forced to give up Constitutional
guarantees of "Right" in order to exercise his state "privilege" to travel upon
the public highways in the ordinary course of life and business.
SURRENDER OF RIGHTS
A Citizen cannot be forced to give up his/her
Rights in the name of regulation.
- "...the only limitations found restricting the right of the state to
condition the use of the public highways as a means of vehicular
transportation for compensation are (1) that the state must not exact
of those it permits to use the highways for hauling for gain that they
surrender any of their inherent U.S. Constitutional Rights as a condition
precedent to obtaining permission for such use..." [emphasis added] Riley
vs. Laeson, 142 So. 619; Stephenson vs. Binford, supra.
If one cannot be placed in a position of being forced to surrender Rights in
order to exercise a privilege, how much more must this maxim of law, then, apply
when one is simply exercising (putting into use) a Right?
- "To be that statute which would deprive a Citizen of the rights of person
or property, without a regular trial, according to the course and usage of the
common law, would not be the law of the land." Hoke vs. Henderson, 15
NC 15.
and...
- "We find it intolerable that one Constitutional Right should have to be
surrendered in order to assert another." Simons vs. United States, 390
US 389.
Since the state requires that one give up Rights in order to exercise the
privilege of driving, the regulation cannot stand under the police power, due
process, or regulation, but must be exposed as a statute which is oppressive and
one which has been misapplied to deprive the Citizen of Rights guaranteed by the
United States Constitution and the state constitutions.
TAXING POWER
- "Any claim that this statute is a taxing statute would be immediately open
to severe Constitutional objections. If it could be said that the state had
the power to tax a Right, this would enable the state to destroy Rights
guaranteed by the constitution through the use of oppressive taxation. The
question herein, is one of the state taxing the Right to travel by the
ordinary modes of the day, and whether this is a legislative object of the
state taxation.
- The views advanced herein are neither novel nor unsupported by authority.
The question of taxing power of the states has been repeatedly considered by
the Supreme Court. The Right of the state to impede or embarrass the
Constitutional operation of the U.S. Government or the Rights which the
Citizen holds under it, has been uniformly denied." McCulloch vs.
Maryland, 4 Wheat 316.
The power to tax is the power to destroy, and if the state is given the power
to destroy Rights through taxation, the framers of the Constitution wrote that
document in vain.
- "...It may be said that a tax of one dollar for passing through the state
cannot sensibly affect any function of government or deprive a Citizen of any
valuable Right. But if a state can tax...a passenger of one dollar, it can tax
him a thousand dollars." Crandall vs. Nevada, 6 Wall 35, 46.
and...
- "If the Right of passing through a state by a Citizen of the United States
is one guaranteed by the Constitution, it must be sacred from state taxation."
Ibid., p.47.
Therefore, the Right of travel must be kept sacred from all forms of state
taxation and if this argument is used by the state as a defense of the
enforcement of this statute, then this argument also must fail.
CONVERSION OF A RIGHT TO A CRIME
As previously demonstrated, the
Citizen has the Right to travel and to transport his property upon the public
highways in the ordinary course of life and business. However, if one exercises
this Right to travel (without first giving up the Right and converting that
Right into a privilege) the Citizen is by statute, guilty of a crime. This
amounts to converting the exercise of a Constitutional Right into a crime.
Recall the Miller vs. U.S. and Snerer vs. Cullen quotes from
p.5, and,
- "The state cannot diminish Rights of the people." Hurtado vs.
California, 110 US 516.
and...
- "Where rights secured by the Constitution are involved, there can be no
rule making or legislation which would abrogate them." Miranda, supra.
Indeed, the very purpose for creating the state under the limitations of the
constitution was to protect the rights of the people from intrusion,
particularly by the forces of government.
So we can see that any attempt by the legislature to make the act of using
the public highways as a matter of Right into a crime, is void upon its face.
Any person who claims his Right to travel upon the highways, and so exercises
that Right, cannot be tried for a crime of doing so. And yet, this Freeman
stands before this court today to answer charges for the "crime" of exercising
his Right to Liberty.
As we have already shown, the term "drive" can only apply to those who are
employed in the business of transportation for hire. It has been shown that
freedom includes the Citnzen's Right to use the public highways in the ordinary
course of life and business without license or regulation by the police powers
of the state.
CONCLUSION
It is the duty of the court to recognize the substance of
things and not the mere form.
- "The courts are not bound by mere form, nor are they to be misled by mere
pretenses. They are at liberty -- indeed they are under a solemn duty -- to
look at the substance of things, whenever they enter upon the inquiry whether
the legislature has transcended the limits of its authority. If, therefore, a
statute purported to have been enacted to protect...the public safety, has no
real or substantial relation to those objects or is a palpable invasion of
Rights secured by the fundamental law, it is the duty of the courts to so
adjudge, and thereby give effect to the Constitution." Mulger vs.
Kansas, 123 US 623, 661.
and...
- "It is the duty of the courts to be watchful for the Constitutional rights
of the citizen and against any stealthy encroachments thereon." Boyd vs.
United States, 116 US 616.
The courts are "duty bound" to recognize and stop the "stealthy
encroachments" which have been made upon the Citizen's Right to travel and to
use the roads to transport his property in the "ordinary course of life and
business." (Hadfield, supra.)
Further, the court must recognize that the Right to travel is part of the
Liberty of which a Citizen cannot be deprived without specific cause and without
the "due process of law" guaranteed in the Fifth Amendment. (Kent,
supra.)
The history of this "invasion" of the Citizen's Right to use the public
highways shows clearly that the legislature simply found a heretofore untapped
source of revenue, got greedy, and attempted to enforce a statute in an
unconstitutional manner upon those free and natural individuals who have a Right
to travel upon the highways. This was not attempted in an outright action, but
in a slow, meticulous, calculated encroachment upon the Citizen's Right to
travel.
This position must be accepted unless the prosecutor can show his authority
for the position that the "use of the road in the ordinary course of life and
business" is a privilege.
To rule in any other manner, without clear authority for an adverse ruling,
will infringe upon fundamental and basic concepts of Constitutional law. This
position, that a Right cannot be regulated under any guise, must be accepted
without concern for the monetary loss of the state.
- "Disobedience or evasion of a Constitutional Mandate cannot be tolerated,
even though such disobedience may, at least temporarily, promote in some
respects the best interests of the public." Slote vs. Examination, 112
ALR 660.
and...
- "Economic necessity cannot justify a disregard of Constitutional
guarantee." Riley vs. Carter, 79 ALR 1018; 16 Am.Jur. (2nd), Const.
Law, Sect.81.
and...
- "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." Watson vs. Memphis, 375 US 526.
Therefore, the Court's decision in the instant case must be made without the
issue of cost to the state being taken into consideration, as that issue is
irrelevant. The state cannot lose money that it never had a right to demand from
the "Sovereign People."
Finally, we come to the issue of "public policy." It could be argued that the
"licensing scheme" of all persons is a matter of "public policy." However, if
this argument is used, it too must fail, as:
- "No public policy of a state can be allowed to override the positive
guarantees of the U.S. Constitution." 16 Am.Jur. (2nd), Const. Law, Sect.70.
So even "public policy" cannot abrogate this Citizen's Right to travel and to
use the public highways in the ordinary course of life and business.
Therefore, it must be concluded that:
- "We have repeatedly held that the legislature may regulate the use of the
highways for carrying on business for private gain and that such regulation is
a valid exercise of the police power." Northern Pacific R.R. Co.,
supra.
and...
- "The act in question is a valid regulation, and as such is binding upon
all who use the highway for the purpose of private gain." Ibid.
Any other construction of this statute would render it unconstitutional as
applied to this Citizen or any Citizen. The Accused therefore moves this court
to dismiss the charge against him, with prejudice.
June 10, 1986.
This ends the legal brief.
In addition:
Since no notice is given to people applying for driver's (or other) licenses
that they have a perfect right to use the roads without any permission, and that
they surrender valuable rights by taking on the regulation system of licensure,
the state has committed a massive construction fraud. This occurs when any
person is told that they must have a license in order to use the public roads
and highways.
The license, being a legal contract under which the state is empowered with
policing powers is only valid when the licensee takes on the burdens of the
contract and bargains away his or her rights knowingly, intentionally, and
voluntarily.
Few know that the driver's license is a contract without which the police are
powerless to regulate the people's actions or activities.
Few if any licensees intentionally surrender valuable rights. They are told
that they must have the license. As we have seen, this is not the case.
No one in their right mind voluntarily surrenders complete liberty and
accepts in its place a set of regulations.
"The people never give up their liberties but under some delusion." Edmund
Burke, 1784.
