"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
Best wishes,
John Kaminski
http://www.johnkaminski.com/
http://www.rudemacedon.ca/kaminski/kam-index.html
http://www.worldnewsstand.net/John_Kaminski_Archives.htm
Driver Licensing vs. Right to Travel
Author Unknown
The following argument 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 the charges to be
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. If you are not using the highways for profit, you cannot be
required to have a driver's license.
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 horse drawn 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." - 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." - Bovier's Law Dictionary, 1914
ed., Black's Law Dictionary, 5th ed.; Blackstone's Commentary
134; Hare, Constitution, Pg. 777
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." - 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 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." - Chicago
Motor Coach vs. Chicago, 169 NE 22?1; 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." - 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; Cummins vs. Homes, 155 P. 171;
Packard vs. Banton, 44 S.Ct. 256; Hadfield vs. Lundin, 98 Wash 516
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."
- Willis vs. Buck, 263 P. l 982; Barney vs. Board of Railroad
Commissioners, 17 P.2d 82
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." - Thompson
vs. Smith, supra.; Teche Lines vs. Danforth, Miss., 12 S.2d 784
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, Pg. 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 ...
1. Travelling upon and transporting one's property upon the
public roads, which is our Right; and ...
2. 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." - Thompson vs. Smith,
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."
- 25 Am.Jur. (1st) Highways, Sect.427, Pg. 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., Pg. 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, Pg. 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., Pg. 940
Notice that this definition includes one who is "employed" in
conducting a vehicle. It should be self-evident that this individual
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:
1. Travelling upon and transporting one's property upon the
public roads as a matter of Right meets the definition of a traveler.
2. 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., Pg. 3307
Here again, notice that this definition refers to one "conducting
business." No mention is made of one who is traveling 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 words "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." - 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." - Bacahanan vs. Wanley, 245 US 60;
Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613
"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, Pg. 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, Pg. 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 ..." - 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?
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.,
Pg. 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 Pg.
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 Citizen'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)
This article was submitted to us by a reader. If anyone knows the name
of the author, we will gladly give credit.
(Isaiah 33:22) For the Lord is our judge, the Lord is our
lawgiver, the Lord is our king; he will save us.
The Lawful Path - http://lawfulpath.com
