Right to Travel

Author Unknown
The following argument has been used in at least three states
(Pennsylvania, Ohio, and West Virginia) as a legal brief to support a
demand for dismissal of charges of "driving without a license." It is
the argument that was the reason for the charges to be dropped, or for
a "win" in court against the argument that free people can have their
right to travel regulated by their servants.
The forgotten legal maxim is that free people have a right to travel
on the roads which are provided by their servants for that purpose,
using ordinary transportation of the day. Licensing cannot be required
of free people, because taking on the restrictions of a license
requires the surrender of a right. The driver's license can be
required of people who use the highways for trade, commerce, or hire;
that is, if they earn their living on the road, and if they use
extraordinary machines on the roads. If you are not using the highways
for profit, you cannot be required to have a driver's license.

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

In addition:
Since no notice is given to people applying for driver's (or other)
licenses that they have a perfect right to use the roads without any
permission, and that they surrender valuable rights by taking on the
regulation system of licensure, the state has committed a massive
construction fraud. This occurs when any person is told that they must
have a license in order to use the public roads and highways.
The license, being a legal contract under which the state is
empowered with policing powers, is only valid when the licensee takes
on the burdens of the contract and bargains away his or her rights
knowingly, intentionally, and voluntarily.
Few know that the driver's license is a contract without which the
police are powerless to regulate the people's actions or activities.
Few (if any) licensees intentionally surrender valuable rights. They
are told that they must have the license. As we have seen, this is not
the case.
No one in their right mind voluntarily surrenders complete liberty
and accepts in its place a set of regulations.
"The people never give up their liberties but under some delusion."
Edmund Burke, (1784)
This article was submitted to us by a reader. If anyone knows the
name of the author, we will gladly give credit.