Driver Licensing vs. the Right to Travel
The statutes for the "State of Nebraska" are:
found in my case.
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.
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