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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."
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."
Bouvier'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 not 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;
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 ...
Traveling 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."
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
"traveling"
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., Pg.
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."
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."
Donnolly 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
incourt,"
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
traveling
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?
"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., 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.
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