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
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:
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
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 largely consists of the Right
of locomotion -- to go where and when one pleases -- only so far
restrained as the Rights of others may make it necessary for the welfare
of all other citizens. The Right of the Citizen to travel upon the
public highways and to transport his property thereon, by horsedrawn carriage,
wagon, or automobile, is not a mere privilege which may
be permitted or prohibited at will, but the common Right
which he has under his Right to life, liberty, and the pursuit
of happiness. Under this Constitutional guarantee one may, therefore,
under normal conditions, travel at his inclination along the
public highways or in public places, and while conducting
himself in an orderly and decent manner, neither interfering with nor
disturbing another's Rights, he will be protected, not only in his
person, but in his safe conduct."
II Am.Jur. (1st) Constitutional Law,
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
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
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
"Where rights secured by the Constitution are
involved, there can be no rule making or legislation which would
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
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."
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
"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
"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
"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
Railroad commission vs. Inter-City Forwarding Co., 57 SW.2d
Parlett Cooperative vs. Tidewater Lines, 164 A. 313
So what is a privilege to use the roads? By now it should
be apparent even to the "learned" that an attempt to
use the road as a place of business is a privilege. The distinction
must be drawn between ...
Traveling upon and transporting one's property upon
the public roads, which is our Right; and ...
Using the public roads as a place of business or a
main instrumentality of business, which is a privilege.
"[The roads] ... are constructed and
maintained at public expense, and no person therefore, can insist
that he has, or may acquire, a vested right to their use in carrying
on a commercial business."
Ex Parte Sterling, 53 SW.2d 294;
Barney vs. Railroad Commissioners, 17 P.2d 82;
Stephenson vs. Binford, supra.
"When the public highways are made the place
of business the state has a right to regulate their use in the interest of
safety and convenience of the public as well as the preservation of the
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
"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
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
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
"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
"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."
25 Am.Jur. (1st) Highways, Sect.427, Pg. 717
"Traveler -- One who passes from place
to place, whether for pleasure, instruction, business,
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
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
The term "driver" in contradistinction
to "traveler," is defined as:
"Driver -- One employed in conducting a
coach, carriage, wagon, or other vehicle ..."
Bovier's Law Dictionary, 1914 ed., Pg. 940
Notice that this definition includes one who
is "employed" in conducting a vehicle. It should be
self-evident that this individual could not be "traveling"
on a journey, but is using the road as a place of business.
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'
Newbill vs. Union Indemnity Co., 60 SE.2d
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:
Traveling upon and transporting one's property
upon the public roads as a matter of Right meets the
definition of a traveler.
Using the road as a place of business as a matter of
privilege meets the definition of a driver or an operator
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
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
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
People vs. Henderson, 218 NW.2d 2, 4
"Leave to do a thing which licensor could
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
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
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.
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,
"The automobile is not inherently
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
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
Connolly vs. Union Sewer Pipe Co., 184 US
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
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
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
"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
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
"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)
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 ..."
"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
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. 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
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
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
2. Is the statute reasonable?
The answer is No!
This statute cannot be determined to be reasonable since
it requires to the Citizen to give up his or her natural Right to
travel unrestricted in order to accept the privilege. The purported goal of
this statute could be met by much less oppressive regulations,
i.e., competency tests and certificates of competency before using an
automobile upon the public roads. (This is exactly the situation
in the aviation sector.)
But isn't this what we have now?
The answer is No!
The real purpose of this license is much more insidious. When one
signs the license, he/she gives up his/her Constitutional Right to
travel in order to accept and exercise a privilege. After signing the
license, a quasi-contract, the Citizen has to give the state his/her
consent to be prosecuted for constructive crimes and quasi-criminal actions
where there is no harm done and no damaged property.
These prosecutions take place without affording the
Citizen of their Constitutional Rights and guarantees such a
the Right to a trial by jury of twelve persons and the Right
to counsel, as well as the normal safeguards such as proof of intent and a
corpus dilecti and a grand jury indictment. These unconstitutional
prosecutions take place because the Citizen is exercising a privilege
and has given his/her "implied consent" to legislative
enactments designed to control interstate commerce, a regulatable
enterprise under the police power of the state.
We must now conclude that the Citizen is forced to give
up Constitutional guarantees of "Right" in order to
exercise his state "privilege" to travel upon the
public highways in the ordinary course of life and business.
SURRENDER OF RIGHTS
A Citizen cannot be forced to give up his/her Rights
in the name of regulation.
"... the only limitations found restricting the
right of the state to condition the use of the public highways as a
means of vehicular transportation for compensation are (1) that
the state must not exact of those it permits to use the highways for
hauling for gain that they surrender any of their inherent
U.S. Constitutional Rights as a condition precedent to obtaining
permission for such use ..."
Riley vs. Laeson, 142 So. 619;
Stephenson vs. Binford, supra.
If one cannot be placed in a position of being forced to
surrender Rights in order to exercise a privilege, how much more
must this maxim of law, then, apply when one is simply exercising
(putting into use) a Right?
"To be that statute which would deprive a
Citizen of the rights of person or property, without a regular trial,
according to the course and usage of the common law, would not be the law
of the land."
Hoke vs. Henderson, 15 NC 15
"We find it intolerable that one
Constitutional Right should have to be surrendered in order to
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
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."
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
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
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
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
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.
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
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.
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
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
"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 fail, as:
"No public policy of a state can be
allowed to override the positive guarantees of the
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
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
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,
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."