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 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?
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. |