Driver Licensing vs. the Right to
The entirety of what you find below is transcribed
exactly from what was sent to me by a fellow liberty-minded person. It is itself
a transcription of a brief, not a direct, per-character copy of the brief. This
is unfortunate, but I'm trying to nail down some of the references, and
especially some of the cases in which this particular brief was used.
Karl Kleinpaste, March 14, 1995.
The following has been used in at least three states
(Pennsylvania, Ohio, and West Virginia) as a legal brief to support a demand for
dismissal of charges of "driving without a license." It is the argument that was
the reason for charges being dropped, or for a "win" in court against the
argument that free people can have their right to travel regulated by their
The forgotten legal maxim is that free people have a
right to travel on the roads which are provided by their servants for that
purpose, using ordinary transportation of the day. Licensing cannot be required
of free people, because taking on the restrictions of a license requires the
surrender of a right. The driver's license can be required of people who use the
highways for trade, commerce, or hire; that is, if they earn their living on the
road, and if they use extraordinary machines on the roads. In other words, if
you are not using the highways for profit, you cannot be required to have a
driver's license. This brief or the right it demonstrates is no substitute for
either being safe on the road or for learning the subject of rights versus
regulations thoroughly before attempting to use or act upon this information.
BRIEF IN SUPPORT OF
NOTICE FOR DISMISSAL
FOR LACK OF JURISDICTION
written by Glen Bronstein of Spokand, Washington
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:
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
The "most sacred of liberties" of which
Justice Tolman spoke was personal liberty. The definition of personal
"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,
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.
"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 Commentary134;
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.
"The claim and exercise of a
constitutional Right cannot be converted into a crime." Miller vs.
U.S., 230 F. 486, 489.
"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.
"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
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
"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.
"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."
"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.
"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
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
Travelling upon and transporting one's
property upon the public roads, which is our Right;
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,
"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,
"[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."
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
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.
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
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
Therefore, one who uses the road in the
ordinary course of life and business for the purpose of travel and
transportation is a traveler.
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.
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
Using the road as a place of business as a
matter of privilege meets the definition of a driver or an operator or both.
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
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.
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,
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,
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.
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
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
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
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
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.
"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.
"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
"The distinction between the Right of the
Citizen to use the public highways for private, rather than commercial
purposes is recognized..."
"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
"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.
"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.
"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.
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
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
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
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
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.
"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.
"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.
"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.
"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.
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.
"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
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
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
"Economic necessity cannot justify a
disregard of Constitutional guarantee." Riley vs. Carter, 79 ALR
1018; 16 Am.Jur. (2nd), Const. Law, Sect.81.
"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
"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.
"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,
June 10, 1986.
This ends the legal brief.
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
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.