Skip to comments.Serfs: About Your Privilige, Driving
Posted on 09/08/2001 6:54:24 PM PDT by Prism
TO TRAVEL IS A "RIGHT,"
NOT A GOVERNMENT GRANTED "PRIVILEGE "
1. The issue is whether this Sovereign is required to obey the provisions in North Carolina General Statutes. It is the contention of this Sovereign that because he is a Free and Natural Person who has given up none of his "RIGHTS." That the North Carolina General Statutes does not apply to him. It is also the contention of this Sovereign that travels upon the streets or highways in North Carolina by this Sovereign is an unalienable "RIGHT." Being this, is not subject to regulation or legislation by the State of North Carolina General Assembly.
2. Let us first consider the contention of this Sovereign that travels upon the streets or highways in North Carolina is a "RIGHT." Various courts have ruled on this issue. The U.S. Supreme Court ruled:
2.1 The "RIGHT" to travel is a part of the liberty of which the Citizen cannot be deprived without due process of the law under the 5th Amendment. (Emphasis added) See: Kent v. Dulles, 357 U.S. 116, 125
3. The Supreme Court of Wisconsin stated in 1909:
3.1 The term "public highway," in its broad popular sense, includes toll roads -- any road which the public have a "RIGHT" to use even conditionally, though in a strict legal sense it is restricted to roads which are wholly public. (Emphasis added). See: Weirich v. State, 140 Wis. 98.
4. The Supreme Court of the State of Illinois ruled:
4.1 Even the legislature has no power to deny to a Citizen the "RIGHT" to travel upon the highway and transport his property in the ordinary course of his business or pleasure, through this "RIGHT" might be regulated in accordance with the public interest and convenience. (Emphasis added) See: Chicago Motor Coach v. Chicago, 169 N.E. 22
5. "Regulated" here means traffic safety enforcement, stop lights, sign, etc., NOT a privilege that requires permission, i.e.; licensing, mandatory insurance, vehicle registration, etc..
6. PRIVILEGE OR RIGHT?
6.1 The use of the highway for the purpose of travel and transportation is NOT a mere PRIVILEGE, but a "COMMON AND FUNDAMENTAL RIGHT" of which the public and individuals cannot rightfully be deprived. (Emphasis added) See: Chicago Motor Coach v. Chicago, supra; Ligare v. Chicago, 28 N.E. 934; Boone v. Clark, 214 S.W. 607; American Jurisprudence 1st Ed., Highways 163
6.2 Citizen's "RIGHT" to travel upon public highways includes right to use usual conveyances of time, including horse-drawn carriage, or automobile, for ordinary purposes of life and business. (Emphasis added) See: Thompson v. Smith (Chief of Police), 154 S.E. 579, 580
6.3 The "RIGHT" of the Citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may 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) See: Thompson v. Smith, supra.
7. It could not be stated more conclusively that Sovereigns of the states have a "RIGHT" to travel, without approval or restriction, (license), and that this "RIGHT" is protected under the U.S. Constitution. After all, who do the roadways belong to anyway? The People-At-Large. Here are other court decisions that expound the same facts:
7.1 .... [T]he streets and highways belong to the public, for the use of the public in the ordinary and customary manner. See: Hadfield v. Lundin, 98 Wn. 657; 168 P. 516;
7.2 All those who travel upon, and transport their property upon, the public highways, using the ordinary conveyance of today, and doing so in the usual and ordinary course of life and business. See: Hadfield, supra; State v. City of Spokane, 109 Wn. 360; 186 P. 864.
7.3 The "RIGHT" of the Citizen to travel upon the highways 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 highways his place of business and uses it for private gain .... (Emphasis added) See: State v. City of Spokane, supra.
7.4 ...... [F]or 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. For the latter purposes no person has a vested right to use the highways of the state, but is a MERE PRIVILEGE or license which the legislature may grant or withhold at its discretion .... (Emphasis added). See: Hadfield, supra; State v. Johnson, 243 P. 1073; Cummins v. Jones, 155 P. 171; Packard v. Banton, 44 S.Ct. 257, 264 U.S. 140 and other cases too numerous to mention.
8. The Washington State Supreme Court stated:
8.1 I am not particularly interested about the rights of haulers by contract, or otherwise, but I am deeply interested in the "RIGHTS" of the public to use the public highways freely for all lawful purposes. (Emphasis added). See: Robertson v. Department of Public Works, 180 Wash. 133 at 139
9. The Supreme Court of the State of Indiana ruled in 1873:
9.1 It is not the amount of travel, the extent of the use of a highway by the public that distinguishes it from a private way or road. It is the "RIGHT" to so use or travel upon it, not its exercise. (Emphasis added) See: ? Ind 455, 461
10. 11 American Jurisprudence 1st, has this to say:
10.1 The "RIGHT" of the Citizen to travel upon the public highways and to transport his property thereon, by horse-drawn carriage, wagon, or automobile, is NOT a mere PRIVILEGE which may be permitted or prohibited at will, but a "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, not disturbing another's "RIGHTS," he will be protected, not only in his person, but in his safe conduct. (Emphasis added) See: 11 American Jurisprudence 1st., Constitutional Law, 329, page 1123
11. The Supreme Court of the State of Georgia ruled:
11.1 In this connection it is well to keep in mind that, while the public has an absolute "RIGHT" to the use of the streets for their primary purpose, which is for travel, the use of the streets from the purpose of parking automobiles is a privilege, and not a "RIGHT"; and the privilege must be accepted with such reasonable burdens as the city may place as conditions to the exercise of the privilege. (Emphasis added). See: Gardner v. City of Brunswick, 28 S.E.2d 135
12. The Supreme Court of the State of Colorado discussed the issue in the following way in 1961.
12.1 The Constitution of the State of Colorado, Article II, §3 provides that:
All persons have certain natural, essential and unalienable "RIGHTS," among which may be reckoned the "RIGHT" .... of acquiring, possessing and protecting property; ....
12.1.1 A motor vehicle is property and a person cannot be deprived of property without due process of law. The term: "property," within the meaning of the due process clause, includes the "RIGHT" to make full use of the property which one has the unalienable "RIGHT" to acquire.
12.1.2 Every Citizen has an unalienable "RIGHT" to make use of the public highways of the state; every Citizen has full freedom to travel from place to place in the enjoyment of life and liberty. (Emphasis added). See: People v. Nothaus, 147 Colo. 210
13. The Constitution of the State of Idaho contains the words:
13.1 All men are by nature free and equal, and have certain unalienable "RIGHTS," among which are ....; acquiring, possessing, and protecting property .... (Emphasis added).
14. The words of the Idaho Constitution are to all intents and purposes identical with those of the North Carolina Constitution. The Constitution of the State of North Carolina, Article I, §1, states as follows:
14.1 The equality and rights of persons. We hold it to be self-evident that all persons are created equal; that they are endowed by the Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.
14.2 To be that statutes which would deprive a citizen of the rights of person or property without a regular trial, according to the course and usage of common law, would not be the law of the land. See: Hoke v. Henderson, 15 N.C. 15, 25 AM.Dec. 677
15. Since courts tend to be consistent in their rulings, it would be expected the Idaho Supreme Court would rule in the same manner as the North Carolina Supreme Court.
16. Other authorities have arrived at similar conclusions:
16.1 The Constitution for the United States of America, Amendment 9:
16.1.1 The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
17. The Constitution of the State of North Carolina, Article I, §36:
17.1 Other rights of the people. The enumeration of rights in this Article shall not be construed to impair or deny others retained by the people.
18. I demand all of my other rights, including the right to travel upon the public highways and byways in the United States of America.
19. The Constitution of the State of North Carolina, Article I, §2:
19.1 Sovereignty of the people. All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.
20. As member of the Sovereignty of the people, I not only am entitled to use the highways and byways in the United States of America, I have an inalienable right to use the highways and byways.
20.1 Highways are public roads which every Citizen has a "RIGHT" to use. (Emphasis added). See: 3 Angel Highways 3.
20.2 A highway is a passage, road, or street, which every Citizen has a "RIGHT" to use. (Emphasis added). See: Bouvier's Law Dictionary.
21. I have emphasized the word "RIGHT" because it is a common point among the authorities listed. The Idaho Code even joins in this common point:
21.1 49-301 (13) Street or highway. -- The entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public, as a matter of "RIGHT," for purposes of vehicular traffic. (Emphasis added.) See: Idaho Code.
22. The United States Supreme Court has ruled that:
22.1 Undoubtedly the "RIGHT" of locomotion, the "RIGHT" to remove from one place to another according to inclination, is an attribute of personal liberty, and the "RIGHT," ordinarily, of free transit from or through the territory of any State is a "RIGHT" secured by the Fourteenth Amendment and by other provisions of the Constitution. (Emphasis added). See: Williams v. Fears, 343 U.S. 270, 274
23. Thus, there can be little doubt that, when this Sovereign travels upon the streets or highways in North Carolina, he does so as a matter of "RIGHT" and not privilege. The authority for such travel is described variously as a "RIGHT," a "COMMON RIGHT," an "ABSOLUTE RIGHT," an "UNALIENABLE RIGHT," and a "RIGHT" protected by the Constitution of the United States. Let us then examine the importance of these terms to this Sovereign by defining their meaning.
23.1 "RIGHT" -- In law,
(a) an enforceable claim or title to any subject matter whatever;
(b) one's claim to something out of possession;
(c) a power, prerogative, or privilege, as when the word is applied to a corporation. See: Webster Unabridged Dictionary
23.2 "RIGHT" -- As relates to the person, "RIGHTS" are absolute or relative; absolute "RIGHTS," such as every individual born or living in this country (and not an alien enemy) is constantly clothed with, and relate to his own personal security of life, limbs, body, health, and reputation; or to his personal liberty; "RIGHTS" which attach upon every person immediately upon his birth in the kings dominion, and even upon a slave the instant he lands within the same. (Emphasis added). See: 1 Chitty Pr. 32.
23.3 "RIGHT" -- A legal "RIGHT," a constitutional "RIGHT" means a "RIGHT" protected by the law, by the constitution, but government does not create the idea of "RIGHT" or original "RIGHTS"; it acknowledges them ..... (Emphasis added). See: Bouver's Law Dictionary, 1914, p. 2916
23.4 Absolute "RIGHT" -- Without any condition or incumbrance as an absolute bond, simplex obligatio, in distinction from a conditional bond; an absolute estate, one that is free from all manner of conditions or incumbrance .. A rule is said to be absolute when, on the hearing, it is confirmed. (Emphasis added). See: Bouvier's Law Dictionary.
23.5 Unalienable -- A word denoting the condition of those things, the property in which cannot be lawfully transferred from one person to another. See: Bouvier's Law Dictionary.
24. It shows from these definitions that the State has an obligation to acknowledge the "RIGHTS" of this Sovereign to travel on the streets or highways in North Carolina. Further, the State has the duty to refrain from interfering with this "RIGHT" and to protect this "RIGHT" and to enforce the claim of this Sovereign to it.
25. Now if this Sovereign has the absolute "RIGHT" to move about on the streets or highways, does that "RIGHT" include the "RIGHT" to travel in a vehicle upon the streets or highways? The Supreme Court of the State of Texas has made comments that are an appropriate response to this question.
25.1 Property in a thing consists not merely in its ownership and possession, but in the unrestricted "RIGHT" of use, enjoyment and disposal. Anything which destroys any of these elements of property, to that extent destroys the property itself. The substantial value of property lies in its use. If the "RIGHT" of use be denied, the value of the property is annihilated and ownership is rendered a barren "RIGHT." Therefore, a law which forbids the use of a certain kind of property, strips it of an essential attribute and in actual result proscribes its ownership. (Emphasis added). See: Spann v. City of Dallas, 235 S.W. 513
26. These words of the Supreme Court of Texas are of particular importance in Idaho because the Idaho Supreme Court quoted the Supreme Court of Texas and used these exact words in rendering its decision in the case of O'Conner v. City of Moscow, 69 Idaho 37. The Supreme Court of Texas went on to say further;
26.1 To secure their property was one of the great ends for which men entered into society. The "RIGHT" to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural "RIGHT." It does not owe its origin to constitutions. It existed before them. It is a part of the Citizen's natural liberty -- an expression of his freedom, guaranteed as inviolate by every American Bill of "RIGHTS." (Emphasisadded). See: Spann supra.
27.1 Bouvier's Law Dictionary defines;
27.1.1 Property -- The ownership of property implies its use in the prosecution of any legitimate business which is not a nuisance in itself. See: In re Hong Wah, 82 Fed. 623
28. The United States Supreme Court states:
28.1 The Federal Constitution and laws passed within its authority are by the express terms of that instrument made the supreme law of the land. The Fourteenth Amendment protects life, liberty, and property from invasion by the States without due process of law.
28.2 Property is more than the mere thing which a person owns. It is elementary that it includes the "RIGHT" to acquire, use and dispose of it. (Emphasis added). See: Buchanan v. Warley, 245 U.S. 60, 74
29. These authorities point out that the "RIGHT" to own property includes the "RIGHT" to use it. The reasonable use of an automobile is to travel upon the streets or highways on which this Sovereign has an absolute "RIGHT" to use for the purposes of travel. The definitions in Title 49 Chapter 3 of the Idaho Code positively declare the "RIGHT" of this Sovereign to travel in a vehicle upon the streets or highways in Idaho.
30. MOTOR VEHICLE OR VEHICLE?
30.1 Motor Vehicle -- Motor vehicle means a vehicle which is self-propelled or which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails. See: Idaho Code 49-301 (6)
30.2 Vehicle -- Vehicle means a device in, upon, or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by human power or horse drawn or used exclusively upon stationary rails or tracks. See: Idaho Code 49-301 (14)
30.3 Street or Highway -- Street or Highway means the entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public, as a matter of "RIGHT," for purposes of vehicular traffic. (Emphasis added). See: Idaho Code 49-301 (13)
30.4 The term "Motor Vehicle" may be so used as to include only those self-propelled vehicles which are used on highways primarily for purposes of "transporting" persons and property from place to place. (Emphasis added). See: 60 Corpus Juris Secundum §1, Page 148; Ferrante Equipment Co. v. Foley Machine Co., N.J., 231 A.2d 208, 211, 49 N.J. 432
30.5 It seems obvious that the entire Motor Transportation Code and the definition of motor vehicle are not intended to be applicable to all motor vehicles but only to those having a connection with the "transportation" of persons or property. (Emphasis added). See: Rogers Construction Co. v. Hill, Or., 384 P.2d 219, 222, 235 Or. 352
30.6 "Motor vehicle" means a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in "transportation," or a combination determined by the Commission, but does not include a vehicle, locomotive, or car operated only on a rail, or a trolley bus operated by electric power from a fixed overhead wire, and providing local passenger "transportation" similar to street-railway service. (Emphasis added) See: Transportation, Title 49, U.S.C.A. §10102 (17)
The Constitutions of the United States and the State of North Carolina guarantees this Sovereign the "RIGHT" to own property. The Supreme Courts of North Carolina and Texas have affirmed that the "RIGHT" to own property includes the "RIGHT" to use it while its use harms nobody. If that property is an automobile, it is included in the definitions of vehicle and motor vehicle in the Idaho Code Title 49 Chapter 3. And in the same Idaho Code Chapter, streets or highways are defined as the place where vehicles are used by the public as a matter of "RIGHT." Thus it shows that this Sovereign has the "RIGHT" to use a vehicle on the streets or highways in North Carolina.
31. Now if this Sovereign has the "RIGHT" to use a vehicle on the streets or highways in North Carolina, to what extent can the State of North Carolina regulate or diminish that "RIGHT?" There are some who maintain that specific performance is required of every Sovereign who uses a vehicle upon the streets or highways in North Carolina. Let us examine this contention in detail.
32. Specific performance is a term used to designate an action in equity in which a party to a contract asks the court to order the other party to carry out the contract which he has failed or refused to perform. Thus, if specific performance is expected, a contract must exist. The question then becomes: What are the terms of the contract and when was it executed and by whom? Since specific performance seems expected of every user of a vehicle on the streets or highways in North Carolina, the user of a vehicle seems one of the parties to the supposed contract. And since the State seems the party demanding specific performance, the State is the other party to the contract. So the supposed contract exists between the user of a vehicle and the State of North Carolina. When was this contract executed and what are its' terms? Some contend that when a user of a vehicle avails himself of the "privilege" of driving on public thoroughfares that he enters a contract with the State that requires him to abide with all the laws in the North Carolina General Statutes. Others contend that the contract is executed when a driver's license is obtained. We need now to figure out what is a contract.
33. A contract may be defined as an agreement enforceable in court between two or more parties, for a sufficient consideration to do or not to do some specified thing or things. Thus, a contract has four essential features:
33.1 It must be an agreement.
33.2 There must be at least two parties to the contract.
33.3 There must be a consideration.
33.4 There must be an obligation or thing to be done.
34. Several types of contracts exist, but all must contain the essential features listed. Contracts can be classified under three principal categories:
35. Quasi contracts, while being called contracts are not really contracts, will not be considered in this discussion of contracts but will be considered in a separation section later.
Unilateral & Bilateral Contracts
36. There can also be unilateral and bilateral contracts that is presumed can exist under some or all the above headings. Let us examine each above types of contracts to see if the license obtained by this Sovereign falls under any of the categories of contract.
36.1 An express contract is one in which the agreement of the parties is fully stated in words, and it may be either written or oral, or partly written and partly oral. See: Bergh Business Law 30
36.2 A true implied contract is an agreement of the parties arrived at from their acts and conduct viewed in the light of surrounding circumstances, and not from their words either spoken or written. Like an express contract, it grows out of the intention of the parties to the transaction and there must be a meeting of the minds. See: McKevitt et al v. Golden Age Breweries, Inc., 126 P.2d 1077 (1942)
36.3 License -- Authority to do some act or carry on some trade or business, in its nature lawful but prohibited statute, except with the permission of the civil authority or which would otherwise be unlawful. See: Bouvier's Law Dict 37. With these definitions in mind, let us examine a driver's license to see if it is a contract. The driver's license itself is a small plastic card approximately 55 millimeters by 86 millimeters in size. It contains the words "North Carolina Motor Vehicle Driver's license"; the name, address, signature, and physical description of the user; a pair of identifying numbers; a photograph; and the signature of the director of the Department of Law Enforcement. Obviously, this cannot be an express agreement because there are no statements to constitute an agreement. Are there two parties to the "contract?" There are two signatures, but both are copies, thus invalidating the "contract" so there are no parties to the "contract." Is there a consideration? What has the State given this Sovereign in return for this Sovereign's obligation? Some may suggest that the State has given this Sovereign the privilege of driving on the streets or highways in North Carolina. But this Sovereign already has the "RIGHT" to drive on the streets or highways in North Carolina, and the State cannot require this Sovereign to give up a "RIGHT" to obtain a privilege.
38. An Iowa Statute that requires that every foreign corporation named in it shall, as a condition for obtaining a permit to transact business in Iowa, stipulate that it will not remove into the federal court certain suits that it would by the laws of the United States have a "RIGHT" to a permit dependant upon the surrender by the foreign corporation of a privilege secured to it by the Constitution and laws of the United States. Bouvier's Law Dictionary quoting Barron v. Burnside, 121 U.S. 186:
38.1 The full significance of the clause law of the land is said by Ruffin, C.J. to be that statutes that 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. (Emphasis added). See: Bouvier's Law Dictionary quoting Hoke v. Henderson, 15 N.C. 15, 25 AM Dec 677
39. It would be foolish for this Sovereign to exchange a "RIGHT" for a privilege since it would mean giving up valuable property in exchange for something having less value. Is it possible for this Sovereign to do such a thing?
39.1 Consent -- In criminal Law. No act shall be deemed a crime if done with the consent of the party injured, unless it be committed in public, and is likely to provoke a breach of the peace, or tends to the injury of a third party; provided no consent can be given which will deprive the consenter of any unalienable "RIGHT." (Emphasis added). See: Bouvier's Law Dictionary.
40. Thus, even if this Sovereign wanted to do so, he could not give up his "RIGHT" to travel on the streets or highways in North Carolina or exchange it for the privilege of having a driver's license. Thus, in exchange for the supposed obligation of this Sovereign, the State has given nothing. Thus, there is no consideration.
41. It may be contended that the seal on the driver's license is sufficient consideration by the State. It is true that under the common law, the question of consideration could not be raised concerning a contract under seal. The seal provided conclusive presumption of a consideration. Still, North Carolina has abolished by statute the common law presumption of consideration and this statute is binding upon all officers and employees of the State. So, though a seal may be present, it is not evidence of consideration in North Carolina. Of course, the document in question is a contrived and copied document and lacks validity in any case as a contract.
42. As to an obligation, since the license contains no statement of agreement, since there are no parties to any agreement, and since there is no consideration, there can be no obligation. The driver's license thus is not a contract since it fails to contain any of the four essential features of a contract.
43. Can the driver's license be an implied contract? The same elements must exist in an implied contract as exist in an express contract. The only difference is that an implied contract is not written or spoken and the elements of the contract are shown by the acts and conduct of the parties involved. With respect to this Sovereign, there was certainly no meeting of the minds else this brief would not result. It was never the intention of this Sovereign to give up constitutional "RIGHTS" to accept a privilege from the State. Such an action would be ridiculous. This could only be done in a socialistic state. There has been no implied agreement in a free society. It is possible that there were two parties to the supposed contract, the State and this Sovereign. There was no consideration in the implied contract for the same reasons that there was no consideration in the express contract.
44. An obligation is the thing to be done. It may be to pay money, to do work, or to deliver goods; or it may be to refrain from doing something that the person contracting had a "RIGHT" to do. Some may say that the State was obligated to allow this Sovereign to drive on the streets or highways in North Carolina and that this Sovereign was obligated to obey all the Statutes contained in the North Carolina General Statutes. It would be just as easy to say that the State could not be obligated to allow this Sovereign to travel on the streets or highways in North Carolina because they did not have the "RIGHT" or the power to prevent him from doing so.
45. If the State cannot prevent this Sovereign from his travels on the streets or highways in North Carolina, they do not have any discretion in the matter and do not have the choice of whether to obligate themselves or not. Thus, the obligation of the State cannot be to grant this Sovereign the privilege of travel on the streets or highways in North Carolina. The obligation of the State cannot be to refrain from prohibiting this Sovereign from his travel on the streets or highways in North Carolina since the State did not have the "RIGHT" to do this at first.
46. It is the contention of this Sovereign that the only obligation that this Sovereign incurs when using a vehicle upon the streets or highways in North Carolina is the Common Law obligation to refrain from any act that causes another person to lose life, liberty, or property. In complying with this obligation, this Sovereign does comply with many Statutes in the North Carolina General Statutes since they are, for the most part, only common sense rules by which this Sovereign avoids doing damage to others.
47. Still, this acquiescence to some Statutes of The North Carolina General Statutes should not be construed as evidence of a contractual obligation by this Sovereign. Neither should it be construed as acquiescence to all the Statutes of the North Carolina General Statutes or to any of them always. Instead, it is merely evidence of a want of this Sovereign to travel safely and to do harm to no one.
48. Thus, the actions of this Sovereign do not supply unambiguous evidence of a contract with the State. Instead, the actions can, with equal weight, be said to be evidence of the fact that this Sovereign was complying with Common Law requirement that he does harm to no one. The driver's license is not an implied contract because there is no consideration, there may be possibly be two parties, but there is no consideration, and there is not clear evidence of an obligation. Three of the four elements necessary for a contract are missing.
49. The question now becomes whether the driver's license application is a contract. In completing this document, the applicant makes several statements and signs the paper upon which these statements are written under oath. The statements concern the identity, physical description, address, ability and experience in operating a vehicle, and one statement on the physical condition of the applicant. None of the statements are as an agreement.
50. The application form contains the signature of the applicant and the signature of the person taking the oath of the applicant. The reverse side of the Application contains the results of a vision test and rudimentary physical examination with the results of a driving test. These results are signed by the examiner and not by the applicant.
51. Thus the application takes the form of an Affidavit instead of a contract. But let us see if the elements of a contract are present in the application.
51.1 There is no agreement.
51.2 There are not two parties.
51.3 There is no consideration.
51.4 There is no obligation.
52. Since none of the necessary elements of a contract are present, the application does not constitute a contract.
53. The only other document involved in obtaining a driver's license is the document, part of which is copied to make the actual driver's license. It contains, besides the information that is used in making the driver's license, the results of a vision test conducted by the driver's license examiner.
54. The applicant places his signature upon this form that is then copied by some photographic process. Other material is added including a photograph, signature of the Director of the Department of Law Enforcement and the driver's license is made of this composite.
55. Thus the license itself cannot be a contract because it is a contrived document. The form from which the driver's license is made cannot be a contract because, again, none of the elements of a contract are present. So if none of the documents executed by the driver when obtaining a license is a contract, then no contract can exist between the driver and the State as a result of obtaining a driver's license.
56. But the idea that the driver's license is a contract with the State is pervasive. It is a belief that is strongly held even by people in high places. So let us examine the driver's license as if it were a contract and see if it can withstand scrutiny. Not every offer made by one party and accepted by the other creates a valid contract. The outward form of a contract, either oral or written may exist, and yet the circumstances may be such that no contract was in reality created. Some circumstances that will cause an apparently valid contract to be void are:
56.1 Mistake either mutual or unilateral.
57. This Sovereign obtained a driver's license upon the representation by the State that one's travel upon the streets or highways of the United States of America was a privilege. This Sovereign accepted this representation as true and did obtain a driver's license.
57.1 It has been shown, still, that an individual's travel is a "RIGHT" and not a privilege. Thus, a mutual mistake has been made, and the "contract" is void. See: Deibel v. Kreiss, 50 N.E.2d 1000 (1943)
58. But the General Assembly of the State who passed the Statutes contained in the North Carolina General Statutes are knowledgeable persons, many of whom are lawyers, and they undoubtedly knew at the time the law was passed that an individual's travel was a "RIGHT" and not a privilege. If this were the case, then the mistake would be unilateral. A unilateral mistake known to the other party is sufficient grounds to void a contract.
59.1 Fraud may consist in conduct, and may exist where there are no positive representations, Silence where honesty requires speech, may sometimes constitute fraud. The rule that a man may be silent and safe is by no means a universal one. Where one contracting party knows that the other is bargaining for one thing, he has no "RIGHT" by silence to deceive him and suffer him to take an altogether different thing, from that for which he bargains. (Emphasis added). See: Parish v. Thurston, 87 Ind. 437 (1882)
60. If the driver's license is a contract, a case can be made for the contention that it was an agreement obtained by the State by fraud.
60.1 Fraud is a generic term which embraces all the multifarious means which human ingenuity can devise and are resorted to by one individual to get any advantage over another. No definite and invariable rule can be laid down as a general proposition defining fraud, as it includes all surprise, trick, cunning, dissembling, and unfair ways by which another is deceived. (Emphasis added). See: Wells v. Zenz, 236 P. 485
61. With respect to contracts, the following statements can be made:
61.1 However, in the field of contracts, there are certain standard tests for a claim of fraud which make it possible to define fraud, in connection with a contract as any trick or artifice whereby a person by means of a material misrepresentation creates an erroneous impression of the subject matter of a proposed transaction, and thereby induces another person to suffer damage computable in money. The misrepresentation may result from a false statement, a concealment, or a nondisclosure. The elements of a contractual fraud are the following:
61.1.1 A material misrepresentation, created by a statement, a concealment, or a nondisclosure.
61.1.2 An intention to defraud.
61.1.3 Reliance on the representation by the defrauded party.
61.1.4 Damage caused to the defrauded party as the result of his acting upon the representation. See: Bergh Business Law p. 56.
62. In view of the many decisions by high courts, including the Supreme Court of the United States, that one's travel is a "RIGHT" and not a privilege, it would be hard to defend the proposition that the General Assembly of the State of North Carolina was unaware of these decisions, particularly since many legislators are and were lawyers knowledgeable in such matters. In fact, when one considers the definition of streets or highways in Sections of the North Carolina General Statutes, the Evidence is conclusive that the legislature knew and knows that ones travels is a "RIGHT."
63. Therefore, the statements in the North Carolina General Statutes that a travel is a privilege and that a driver's license is necessary before one can travel constitutes a material misrepresentation of fact to this possessor of a driver's license. And since the legislature is and was aware of the fact that an individual's travels was not a privilege, but a "RIGHT," the statement that one's travels is a privilege, when applied to this Sovereign, constitutes a willful intention to deceive, and therefore, to defraud.
64. This Sovereign did rely upon the representations of the legislature that an individual's travels was a privilege when he obtained his driver's license, else he would not have obtained one.
65. This Sovereign did suffer damage as a result of his acting upon the representation of the legislature at least to the extent of the license fee.
66. In as much as all the necessary elements of fraud are present if the driver's license is considered a contract, the "contract" is void.
67. With respect to duress, Bergh, supra., supplies the following definition:
67.1 A party must consent to a contract of his own free will; free consent is an essential element of an agreement. Consequently, if he is coerced into signing a contract by fear induced by a threat to cause personal injury to himself or to some close relative, the contract will not be a real agreement and it will be voidable at his option. The threat of personal injury must be a threat to inflict immediate bodily injury or to institute a criminal prosecution against the person threatened or some close relative.
68. Since it was essential to this Sovereign in pursuing his occupation of common "RIGHT" to use a vehicle upon the streets or highways in North Carolina, and since the State of North Carolina threatens to and does prosecute persons in criminal actions for not possessing a driver's license, regardless of their status, this Sovereign did obtain a driver's license under duress. If then the driver's license is a contract, the contract is unenforceable and invalid because of this duress.
69. With respect to alterations, Bergh, supra., has the following comments:
69.1 Any material alteration in a written contract by one party without the consent of the other party gives this latter the option of treating the contract as discharged or enforcing it as it stood before the alteration.
70. If the driver's license is a contract, it is a written contract, at least to the extent that the Statutes of the North Carolina General Statutes are written. Each time that the General Assembly amends or modifies or adds to any of the Statutes of the North Carolina General Statutes, the terms of the contract are changed. Since this Sovereign then has the option of considering the contract as discharged, he then chooses to do so as of the first change in the North Carolina General Statutes following his application for a driver's license.
71. If it is contended that the driver's license is an implied contract, the "Statute of Frauds" comes into play. North Carolina has enacted a "Statute of Frauds."
72. In the following cases the agreement is invalid, unless the same or some note or memorandum of it, be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents:
72.1 An agreement that by its terms is not to be performed within a year from the making thereof.
73. Since the term of the driver's license contract is so many years and the contract is not written, the "Statute of Frauds" does apply and the contract is unenforceable.
74. The discussion up to this point has been concerned with bilateral contracts in which each party promises something to the other party. Is it possible that the driver's license is a unilateral contract? A unilateral contract is described as:
74.1 A unilateral contract is a one-sided contract in the sense that only one side makes a promise, and the other side performs an act for which the promise was given. See: Bergh, supra..
75. Since the act expected by the State is obedience to the Statutes of the North Carolina General Statutes, what promise has the State offered in exchange for this act? The only promise that the State could make this Sovereign is the promise to allow him to travel on the streets or highways in North Carolina. Since this Sovereign already can do that as a matter of "RIGHT," the State can promise him nothing. Thus there is no consideration and a unilateral contract cannot exist.
76. Having shown that no contract exists between this Sovereign and the State, let us examine the proposition that a quasi-contract exists between this Sovereign and the State.
77.1 A quasi-contract is an obligation springing from voluntary and lawful acts of parties in the absence of any agreement. See: Bouvier's Law Dictionary.
78. In order to establish the existence of a quasi-contractual obligation it must be shown:
78.1 That the defendant has received a benefit from the Plaintiff.
78.2 That the retention of the benefit by the Defendant is inequitable. See: Woodward Quasi Contracts 9.
79. Thus, if it is contended that this Sovereign must obey the Statutes in the North Carolina General Statutes because of a quasi-contract, it must be shown that this Sovereign has received a benefit from the State. But one's travels on the streets or highways of the State is not a benefit received from the State. It was a "RIGHT" that attached to this Sovereign at the moment of his birth and cannot be removed by the State. In this respect, no benefit has been received from the State, and thus a quasi-contractual obligation cannot exist with respect to this Sovereign.
80. It may be claimed that the Statutes of the North Carolina General Statutes are made pursuant to the police powers of the State and that every person in the State is obligated to obey them.
81. The police power is a grant of authority from the people to their governmental agents for the protection of the health, the safety, the comfort and the welfare of the public. In its nature, it is broad and comprehensive. It is a necessary and salutary power, since without it, society would be at the mercy of individual interest and there would exist neither public order or security. While this is true, it is only a power. It is not a "RIGHT?"
82. The powers of government, under our system, are nowhere absolute. They are but grants of authority from the people, and are limited to their true purposes. The fundamental "RIGHTS" of the people are inherent and have not yielded to governmental control. They are not the subjects of governmental authority. They are subjects of individual authority. Constitutional powers can never transcend constitutional "RIGHTS." The police power is subject to the limitations imposed by the Constitution upon every power of government; and it will not be suffered to invade or impair the fundamental liberties of the Sovereign, those natural "RIGHTS" that are the chief concern of the Constitution and for whose protection it was ordained by the people.
82.1 To secure their property was one of the great ends for which men entered into society. The "RIGHT" to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural "RIGHT." It does not owe its origin to constitutions. It existed before them. It is a part of the Citizen's natural liberty -- an expression of his freedom, guaranteed as inviolate by every American Bill of "RIGHTS."
82.2 It is not a "RIGHT," therefore, over which the police power is paramount. Like every other fundamental liberty, it is a "RIGHT" to which the police power is subordinate.
82.3 It is a "RIGHT" which takes into account the equal "RIGHTS" of others, for it is qualified by the obligation that the use of the property shall not be to the prejudice of others. But if subject alone to that qualification, the Citizen is not free to use his lands and his goods as he chooses, it is difficult to perceive wherein his "RIGHT" of property has any existence. (Emphasis added). See: Spann, supra..
83. Where inherent, unalienable, absolute "RIGHTS" are concerned, the police powers can have no effect. The "RIGHT" to travel on the streets or highways and the "RIGHT" to own and use property have been described as inherent, unalienable, and absolute. Thus the police power cannot regulate this Sovereign's "RIGHT" to use a vehicle on the streets or highways in North Carolina.
84. If the police power of the State is permitted to regulate the travels of this Sovereign on the streets or highways in North Carolina, and if, through the action of these regulations or Statutes, this Sovereign is denied access to the streets or highways in North Carolina; a fundamental "RIGHT" of this Sovereign has been abrogated.
84.1 Where "RIGHTS" secured by the Constitution are involved, there can be no rule making or legislation that would abrogate them. (Emphasis added). See: Miranda v. Arizona, 384 U.S. 436, 491 (1966)
85. The abrogation of unalienable "RIGHTS" by legislation or rule making is unconstitutional.
86. If further proof is needed to show that this Sovereign need not be licensed to travel on the streets or highways in North Carolina, it is provided in the following decisions:
86.1 A license fee is a tax. See: Parish of Morehouse v. Brigham, 6 So. 257
86.2 A state may not impose a charge for the enjoyment of a "RIGHT" granted by the Federal Constitution. (Emphasis added). See: Murdock v. Pennsylvania, 319 U.S. 105
87. Since a fee is charged for a driver's license and since one's travels on the streets or highways in North Carolina is a "RIGHT" guaranteed by the Federal Constitution, and by the LAW OF NATURE, it is not constitutional for the State to require this Sovereign to be licensed to travel.
88. Even the application for North Carolina Driver's License Form recognizes the "RIGHT" of some persons to travel without a license. North Carolina General Statutes recognizes categories of persons who are not required to be licensed in this State. Why is it then that the first demand made by the law enforcement personnel when making a traffic stop is:
"Let's see your driver's license, registration, and proof of insurance,"
and not always politely, when the first question should be;
"What is your status and are you required to have a driver's license?"
89. Can it be that there is a conspiracy afoot within the State to reduce all Sovereigns to a status of contract? Why else would a law enforcement person take a Sovereign to jail without even trying to discover if that Sovereign is exempt from the requirement of having a driver's license?
90. The question now becomes whether this Sovereign is required to obey any of the Statutes in the North Carolina General Statutes? It has been shown that this Sovereign has a "RIGHT" to travel on the streets or highways in North Carolina. So, any Statute that describes driving on the streets or highways as a privilege cannot apply to this Sovereign. Since the "RIGHT" of this Sovereign to travel cannot be abrogated, any Statute the operation of which would have the effect of denying access to the streets or highways to this Sovereign cannot be applied to this Sovereign.
91. Since violation of any Statue in the North Carolina General Statutes is classified as a "misdemeanor" that is punishable by a fine and six months in jail, and since putting this Sovereign in jail because of his use of the streets or highways that harms nobody would be an abrogation of his "RIGHT" to travel, none of the Statutes of the North Carolina General Statutes apply to this Sovereign. These contentions are supported by the Supreme Court of United States.
91.1 An Iowa statute that requires that every foreign corporation named in it shall as a condition for obtaining a permit to transact business in Iowa, stipulate that it will not remove into the federal court certain suits that it would by the laws of the United States have a "RIGHT" to remove, is void because it makes the "RIGHT" to a permit dependent upon the surrender by the foreign corporation of a privilege secured to it by the Constitution and laws of the United States. (Emphasis added). See: Bouvier's Law Dictionary quoting Barron v. Burnside, 121 U.S. 186
92. This decision is consistent with that in Miranda, supra, in which it was stated that where "RIGHTS" are concerned, there can be no rule making or legislation that would abrogate them. It is also consistent with the discussion in the following case. This case is a tax case, but the discussion on "RIGHTS" that it contains is appropriate.
93. Individual and a Corporation
93.1 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 an examination at 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 an investigation so far as it may tend to criminate him. He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life and property. His "RIGHTS" are such as existed by 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 a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their "RIGHTS." (Emphasis added.) See: Hale v. Henkel, 201 U.S. 43
94. The Emphasized statement is also consistent with North Carolina Statute. In the Statute reads:
94.1 Common law in force. The common law of England, as far as it is not repugnant to or inconsistent with the Constitution or laws of the United States in all cases not provided for in these compiled laws, is the rule of decision in all courts in this state.
95. Since the Statutes of the North Carolina General Statutes cannot apply to this Sovereign, he becomes subject to the Common Law that maintains that he owes nothing to the public while he does not trespass upon their "RIGHTS."
96. Is it the contention of this Sovereign that because the Statutes contained in the North Carolina General Statutes do not apply to him that the Statutes are unconstitutional? Absolutely not. There is a class of persons in North Carolina to whom these Statutes apply without reservation. Members of this class include corporations and those who do the corporation business on the streets or highways in North Carolina. A corporation is the creation of the State.
96.1 A 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 while it obeys the laws of its creation. (Emphasis added). See: Bouvier's Law Dictionary, 1914 p. 684
97. It is a person in the eyes of the law but it lacks character, no morals, no conscience. It's every activity must be directed and supervised by the State. Under the definition of "Due Process of Law", Bouvier's Law Dictionary states in part:
97.1 The liberty guaranteed is that of a natural person and not of artificial persons; Western Turf Assn. v. Greenberg, 204 U.S. 359 where it was said "a corporation cannot be deemed a Citizen within the meaning of the clause of the Constitution of the United States which protects the privileges and immunities of Citizens of the United States against being abridged or impaired by the law of a state." (See also 203 U.S. 243)
98. The Statutes in the North Carolina General Statutes are designed to direct the activities of the class of persons of which a corporation is a member. Corporations are absolutely bound by these Statutes. It is imperative that a conscienceless entity not be allowed to roam the streets or highways in North Carolina and jeopardize the Sovereigns. It is for this purpose that the Statutes of the North Carolina General Statutes were enacted and not for the control of a Free and Natural Sovereign.
99. There is no Court in this Land that could lawfully execute an Order that would or could cause, or work to compel, One to become a servant or slave of any city, county or state without a conviction and with full Due Process of Law, and for any city, county, or state to pretend otherwise is an absurdity.
Driver Licensing vs. the Right to Travel
The following argument has been used in at least three states (Pennsylvania, Ohio, and West Virginia) as a legal brief to support a demand for dismissal of charges of "driving without a license." It is the argument that was the reason for the charges to be dropped, or for a "win" in court against the argument that free people can have their right to travel regulated by their servants.
The forgotten legal maxim is that free people have a right to travel on the roads which are provided by their servants for that purpose, using ordinary transportation of the day. Licensing cannot be required of free people, because taking on the restrictions of a license requires the surrender of a right. The driver's license can be required of people who use the highways for trade, commerce, or hire; that is, if they earn their living on the road, and if they use extraordinary machines on the roads. If you are not using the highways for profit, you cannot be required to have a driver's license.
BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION
NOW, comes the Accused, appearing specially and not generally or voluntarily, but under threat of arrest if he failed to do so, with this "BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION," stating as follows:
If ever a judge understood the public's right to use the public roads, it was Justice Tolman of the Supreme Court of the State of Washington. Justice Tolman stated:
"Complete freedom of the highways is so old and well established a blessing that we have forgotten the days of the Robber Barons and toll roads, and yet, under an act like this, arbitrarily administered, the highways may be completely monopolized, if, through lack of interest, the people submit, then they may look to see the most sacred of their liberties taken from them one by one, by more or less rapid encroachment."
Robertson vs. Department of Public Works, 180 Wash 133, 147.
The words of Justice Tolman ring most prophetically in the ears of Citizens throughout the country today as the use of the public roads has been monopolized by the very entity which has been empowered to stand guard over our freedoms, i.e., that of state government.
The "most sacred of liberties" of which Justice Tolman spoke was personal liberty. The definition of personal liberty is:
"Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution, which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable Rights, as sacred as the Right to private property ... and is regarded as inalienable."
16 C.J.S., Constitutional Law, Sect.202, p.987
This concept is further amplified by the definition of personal liberty:
"Personal liberty largely consists of the Right of locomotion -- to go where and when one pleases -- only so far restrained as the Rights of others may make it necessary for the welfare of all other citizens. The Right of the Citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness. Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another's Rights, he will be protected, not only in his person, but in his safe conduct."
II Am.Jur. (1st) Constitutional Law, Sect.329, p.1135
and further ...
"Personal liberty -- consists of the power of locomotion, of changing situations, of removing one's person to whatever place one's inclination may direct, without imprisonment or restraint unless by due process of law."
Bovier's Law Dictionary, 1914 ed., Black's Law Dictionary, 5th ed.;
Blackstone's Commentary 134; Hare, Constitution__Pg. 777
Justice Tolman was concerned about the State prohibiting the Citizen from the "most sacred of his liberties," the Right of movement, the Right of moving one's self from place to place without threat of imprisonment, the Right to use the public roads in the ordinary course of life.
When the State allows the formation of a corporation it may control its creation by establishing guidelines (statutes) for its operation (charters). Corporations who use the roads in the course of business do not use the roads in the ordinary course of life. There is a difference between a corporation and an individual. The United States Supreme Court has stated:
"...We are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for examination on the suit of the State. The individual may stand upon his Constitutional Rights as a Citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to investigation, so far as it may tend to incriminate him. He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life, liberty, and property. His Rights are such as the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his Rights are the refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under warrant of law. He owes nothing to the public so long as he does not trespass upon their rights.
"Upon the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that the State, having chartered a corporation to make use of certain franchises, could not in exercise of its sovereignty inquire how those franchises had been employed, and whether they had been abused, and demand the production of corporate books and papers for that purpose."
Hale vs. Hinkel, 201 US 43, 74-75
Corporations engaged in mercantile equity fall under the purview of the State's admiralty jurisdiction, and the public at large must be protected from their activities, as they (the corporations) are engaged in business for profit.
"...Based upon the fundamental ground that the sovereign state has the plenary control of the streets and highways in the exercise of its police power (see police power, infra.), may absolutely prohibit the use of the streets as a place for the prosecution of a private business for gain. They all recognize the fundamental distinction between the ordinary Right of the Citizen to use the streets in the usual way and the use of the streets as a place of business or a main instrumentality of business for private gain. The former is a common Right, the latter is an extraordinary use. As to the former, the legislative power is confined to regulation, as to the latter, it is plenary and extends even to absolute prohibition. Since the use of the streets by a common carrier in the prosecution of its business as such is not a right but a mere license of privilege."
Hadfield vs. Lundin, 98 Wash 516
It will be necessary to review early cases and legal authority in order to reach a lawfully correct theory dealing with this Right or "privilege." We will attempt to reach a sound conclusion as to what is a "Right to use the road" and what is a "privilege to use the road". Once reaching this determination, we shall then apply those positions to modern case decision.
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."
Miranda vs. Arizona, 384 US 436, 491
"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."
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 unanimous.
"Heretofore the court has held, and we think correctly, that while a Citizen has the Right to travel upon the public highways and to transport his property thereon, that Right does not extend to the use of the highways, either in whole or in part, as a place of business for private gain."
Willis vs. Buck, 263 P. l 982;
Barney vs. Board of Railroad Commissioners, 17 P.2d 82
"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."
Thompson vs. Smith, supra.;
Teche Lines vs. Danforth, Miss., 12 S.2d 784
There is no dissent among various authorities as to this position. (See Am. Jur. [1st] Const. Law, 329 and corresponding Am. Jur. [2nd].)
"Personal liberty -- or the right to enjoyment of life and liberty -- is one of the fundamental or natural rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from nor dependent on the U.S. Constitution. ... It is one of the most sacred and valuable rights [remember the words of Justice Tolman, supra.] as sacred as the right to private property ... and is regarded as inalienable."
16 C.J.S. Const. Law, Sect.202, Pg. 987
As we can see, the distinction between a "Right" to use the public roads and a "privilege" to use the public roads is drawn upon the line of "using the road as a place of business" and the various state courts have held so. But what have the U.S. Courts held on this point?
"First, it is well established law that the highways of the state are public property, and their primary and preferred use is for private purposes, and that their use for purposes of gain is special and extraordinary which, generally at least, the legislature may prohibit or condition as it sees fit."
Stephenson vs. Rinford, 287 US 251;
Pachard vs Banton, 264 US 140, and cases cited;
Frost and F. Trucking Co. vs. Railroad Commission, 271 US 592;
Railroad commission vs. Inter-City Forwarding Co., 57 SW.2d 290;
Parlett Cooperative vs. Tidewater Lines, 164 A. 313
So what is a privilege to use the roads? By now it should be apparent even to the "learned" that an attempt to use the road as a place of business is a privilege. The distinction must be drawn between ...
"[The roads] ... are constructed and maintained at public expense, and no person therefore, can insist that he has, or may acquire, a vested right to their use in carrying on a commercial business."
Ex Parte Sterling, 53 SW.2d 294;
Barney vs. Railroad Commissioners, 17 P.2d 82;
Stephenson vs. Binford, supra.
"When the public highways are made the place of business the state has a right to regulate their use in the interest of safety and convenience of the public as well as the preservation of the highways."
Thompson vs. Smith, supra.
"[The state's] right to regulate such use is based upon the nature of the business and the use of the highways in connection therewith."
"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 NH 200
While the distinction is made clear between the two as the courts have stated:
"A motor vehicle or automobile for hire is a motor vehicle, other than an automobile stage, used for the transportation of persons for which remuneration is received."
International Motor Transit Co. vs. Seattle, 251 P. 120
The term `motor vehicle' is different and broader than the word `automobile.'"
City of Dayton vs. DeBrosse, 23 NE.2d 647, 650; 62 Ohio App. 232
The distinction is made very clear in Title 18 USC 31:
"Motor vehicle" means every description or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, or passengers and property.
"Used for commercial purposes" means the carriage of persons or property for any fare, fee, rate, charge or other considerations, or directly or indirectly in connection with any business, or other undertaking intended for profit.
Clearly, an automobile is private property in use for private purposes, while a motor vehicle is a machine which may be used upon the highways for trade, commerce, or hire.
The term "travel" is a significant term and is defined as:
"The term `travel' and `traveler' are usually construed in their broad and general sense ... so as to include all those who rightfully use the highways viatically (when being reimbursed for expenses) and who have occasion to pass over them for the purpose of business, convenience, or pleasure."
25 Am.Jur. (1st) Highways, Sect.427, Pg. 717
"Traveler -- One who passes from place to place, whether for pleasure, instruction, business, or health."
Locket vs. State, 47 Ala. 45;
Bovier's Law Dictionary, 1914 ed., Pg. 3309
"Travel -- To journey or to pass through or over; as a country district, road, etc. To go from one place to another, whether on foot, or horseback, or in any conveyance as a train, an automobile, carriage, ship, or aircraft; Make a journey."
Century Dictionary, Pg. 2034
Therefore, the term "travel" or "traveler" refers to one who uses a conveyance to go from one place to another, and included all those who use the highways as a matter of Right.
Notice that in all these definitions, the phrase "for hire" never occurs. This term "travel" or "traveler" implies, by definition, one who uses the road as a means to move from one place to another.
Therefore, one who uses the road in the ordinary course of life and business for the purpose of travel and transportation is a traveler.
The term "driver" in contradistinction to "traveler," is defined as:
"Driver -- One employed in conducting a coach, carriage, wagon, or other vehicle ..."
Bovier's Law Dictionary, 1914 ed., Pg. 940
Notice that this definition includes one who is "employed" in conducting a vehicle. It should be self-evident that this individual could not be "travelling" on a journey, but is using the road as a place of business.
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:
Having defined the terms "automobile," "motor vehicle," "traveler," "driver," and "operator," the next term to define is "traffic":
"... Traffic thereon is to some extent destructive, therefore, the prevention of unnecessary duplication of auto transportation service will lengthen the life of the highways or reduce the cost of maintenance, the revenue derived by the state ... will also tend toward the public welfare by producing at the expense of those operating for private gain, some small part of the cost of repairing the wear ..."
Northern Pacific R.R. Co. vs. Schoenfeldt, 213 P. 26
Note: In the above, Justice Tolman expounded upon the key of raising revenue by taxing the "privilege" to use the public roads "at the expense of those operating for gain."
In this case, the word "traffic" is used in conjunction with the unnecessary Auto Transportation Service, or in other words, "vehicles for hire." The word "traffic" is another word which is to be strictly construed to the conducting of business.
"Traffic -- Commerce, trade, sale or exchange of merchandise, bills, money, or the like. The passing of goods and commodities from one person to another for an equivalent in goods or money ..."
Bovier's Law Dictionary, 1914 ed., Pg. 3307
Here again, notice that this definition refers to one "conducting business." No mention is made of one who is travelling in his automobile. This definition is of one who is engaged in the passing of a commodity or goods in exchange for money, i.e .., vehicles for hire.
Furthermore, the word "traffic" and "travel" must have different meanings which the courts recognize. The difference is recognized in Ex Parte Dickey, supra:
"...in addition to this, cabs, hackney coaches, omnibuses, taxicabs, and hacks, when unnecessarily numerous, interfere with the ordinary traffic and travel and obstruct them."
The court, by using both terms, signified its recognition of a distinction between the two. But, what was the distinction? We have already defined both terms, but to clear up any doubt:
"The word `traffic' is manifestly used here in secondary sense, and has reference to the business of transportation rather than to its primary meaning of interchange of commodities."
Allen vs. City of Bellingham, 163 P. 18
Here the Supreme Court of the State of Washington has defined the word "traffic" (in either its primary or secondary sense) in reference to business, and not to mere travel! So it is clear that the term "traffic" is business related and therefore, it is a "privilege." The net result being that "traffic" is brought under the (police) power of the legislature. The term has no application to one who is not using the roads as a place of business.
It seems only proper to define the word "license," as the definition of this word will be extremely important in understanding the statutes as they are properly applied:
"The permission, by competent authority to do an act which without permission, would be illegal, a trespass, or a tort."
People vs. Henderson, 218 NW.2d 2, 4
"Leave to do a thing which licensor could prevent."
Western Electric Co. vs. Pacent Reproducer Corp., 42 F.2d 116, 118
In order for these two definitions to apply in this case, the state would have to take up the position that the exercise of a Constitutional Right to use the public roads in the ordinary course of life and business is illegal, a trespass, or a tort, which the state could then regulate or prevent.
This position, however, would raise magnitudinous Constitutional questions as this position would be diametrically opposed to fundamental Constitutional Law. (See "Conversion of a Right to a Crime," infra.)
In the instant case, the proper definition of a "license" is:
"a permit, granted by an appropriate governmental body, generally for consideration, to a person, firm, or corporation, to pursue some occupation or to carry on some business which is subject to regulation under the police power."
Rosenblatt vs. California State Board of Pharmacy, 158 P.2d 199, 203
This definition would fall more in line with the "privilege" of carrying on business on the streets.
Most people tend to think that "licensing" is imposed by the state for the purpose of raising revenue, yet there may well be more subtle reasons contemplated; for when one seeks permission from someone to do something he invokes the jurisdiction of the "licensor" which, in this case, is the state. In essence, the licensee may well be seeking to be regulated by the "licensor."
"A license fee is a charge made primarily for regulation, with the fee to cover costs and expenses of supervision or regulation."
State vs. Jackson, 60 Wisc.2d 700; 211 NW.2d 480, 487
The fee is the price; the regulation or control of the licensee is the real aim of the legislation.
Are these licenses really used to fund legitimate government, or are they nothing more than a subtle introduction of police power into every facet of our lives? Have our "enforcement agencies" been diverted from crime prevention, perhaps through no fault of their own, instead now busying themselves as they "check" our papers to see that all are properly endorsed by the state?
How much longer will it be before we are forced to get a license for our lawn mowers, or before our wives will need a license for her "blender" or "mixer?" They all have motors on them and the state can always use the revenue.
The confusion of the police power with the power of taxation usually arises in cases where the police power has affixed a penalty to a certain act, or where it requires licenses to be obtained and a certain sum be paid for certain occupations. The power used in the instant case cannot, however, be the power of taxation since an attempt to levy a tax upon a Right would be open to Constitutional objection. (See "taxing power," infra.)
Each law relating to the use of police power must ask three questions:
"1. Is there threatened danger?
"2. Does a regulation involve a Constitutional Right?
"3. Is this regulation reasonable?
People vs. Smith, 108 Am.St.Rep. 715;
Bovier's Law Dictionary, 1914 ed., under "Police Power"
When applying these three questions to the statute in question, some very important issues emerge.
First, "is there a threatened danger" in the individual using his automobile on the public highways, in the ordinary course of life and business?
The answer is No! There is nothing inherently dangerous in the use of an automobile when it is carefully managed. Their guidance, speed, and noise are subject to a quick and easy control, under a competent and considerate manager, it is as harmless on the road as a horse and buggy.
It is the manner of managing the automobile, and that alone, which threatens the safety of the public. The ability to stop quickly and to respond quickly to guidance would seem to make the automobile one of the least dangerous conveyances. (See Yale Law Journal, December, 1905.)
"The automobile is not inherently dangerous."
Cohens vs. Meadow, 89 SE 876;
Blair vs. Broadmore, 93 SE 532
To deprive all persons of the Right to use the road in the ordinary course of life and business, because one might, in the future, become dangerous, would be a deprivation not only of the Right to travel, but also the Right to due process. (See "Due Process," infra.)
Next; does the regulation involve a Constitutional Right?
This question has already been addressed and answered in this brief, and need not be reinforced other than to remind this Court that this Citizen does have the Right to travel upon the public highway by automobile in the ordinary course of life and business. It can therefore be concluded that this regulation does involve a Constitutional Right.
The third question is the most important in this case. "Is this regulation reasonable?"
The answer is No! It will be shown later in "Regulation," infra., that this licensing statute is oppressive and could be effectively administered by less oppressive means.
Although the Fourteenth Amendment does not interfere with the proper exercise of the police power, in accordance with the general principle that the power must be exercised so as not to invade unreasonably the rights guaranteed by the United States Constitution, it is established beyond question that every state power, including the police power, is limited by the Fourteenth Amendment (and others) and by the inhibitions there imposed.
Moreover, the ultimate test of the propriety of police power regulations must be found in the Fourteenth Amendment, since it operates to limit the field of the police power to the extent of preventing the enforcement of statutes in denial of Rights that the Amendment protects. (See Parks vs. State, 64 NE 682.)
"With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be overthrown or impaired by any state police authority."
Connolly vs. Union Sewer Pipe Co., 184 US 540;
Lafarier vs. Grand Trunk R.R. Co., 24 A. 848;
O'Neil vs. Providence Amusement Co., 108 A. 887
"The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution."
Bacahanan vs. Wanley, 245 US 60;
Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613
"It is well settled that the Constitutional Rights protected from invasion by the police power, include Rights safeguarded both by express and implied prohibitions in the Constitutions."
Tiche vs. Osborne, 131 A. 60
"As a rule, fundamental limitations of regulations under the police power are found in the spirit of the Constitutions, not in the letter, although they are just as efficient as if expressed in the clearest language."
Mehlos vs. Milwaukee, 146 NW 882
As it applies in the instant case, the language of the Fifth Amendment is clear:
"No person shall be ... deprived of Life, Liberty, or Property without due process of law."
As has been shown, the courts at all levels have firmly established an absolute Right to travel.
In the instant case, the state, by applying commercial statutes to all entities, natural and artificial persons alike, has deprived this free and natural person of the Right of Liberty, without cause and without due process of law.
"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, Pg. 269)
Note: This sounds like the process used to deprive one of the "privilege" of operating a motor vehicle "for hire." It should be kept in mind, however, that we are discussing the arbitrary deprivation of the Right to use the road that all citizens have "in common."
The futility of the state's position can be most easily observed in the 1959 Washington Attorney General's opinion on a similar issue:
"The distinction between the Right of the Citizen to use the public highways for private, rather than commercial purposes is recognized ..."
"Under its power to regulate private uses of our highways, our legislature has required that motor vehicle operators be licensed (I.C. 49-307). Undoubtedly, the primary purpose of this requirement is to insure, as far as possible, that all motor vehicle operators will be competent and qualified, thereby reducing the potential hazard or risk of harm, to which other users of the highways might otherwise be subject. But once having complied with this regulatory provision, by obtaining the required license, a motorist enjoys the privilege of travelling freely upon the highways ..."
Washington A.G.O. 59-60 No. 88, Pg. 11
This alarming opinion appears to be saying that every person using an automobile as a matter of Right, must give up the Right and convert the Right into a privilege. This is accomplished under the guise of regulation. This statement is indicative of the insensitivity, even the ignorance, of the government to the limits placed upon governments by and through the several constitutions.
This legal theory may have been able to stand in 1959; however, as of 1966, in the United States Supreme Court decision in Miranda, even this weak defense of the state's actions must fall.
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."
Miranda vs. Arizona, 384 US 436, 491
Thus the legislature does not have the power to abrogate the Citizen's Right to travel upon the public roads, by passing legislation forcing the citizen to waive his Right and convert that Right into a privilege. Furthermore, we have previously established that this "privilege" has been defined as applying only to those who are "conducting business in the streets" or "operating for-hire vehicles."
The legislature has attempted (by legislative fiat) to deprive the Citizen of his Right to use the roads in the ordinary course of life and business, without affording the Citizen the safeguard of "due process of law." This has been accomplished under supposed powers of regulation.
"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 guarantees.
First, let us consider the reasonableness of this statute requiring all persons to be licensed (presuming that we are applying this statute to all persons using the public roads). In determining the reasonableness of the statute we need only ask two questions:
1. Does the statute accomplish its stated goal?
The answer is No!
The attempted explanation for this regulation "to insure the safety of the public by insuring, as much as possible, that all are competent and qualified."
However, one can keep his license without retesting, from the time he/she is first licensed until the day he/she dies, without regard to the competency of the person, by merely renewing said license before it expires. It is therefore possible to completely skirt the goal of this attempted regulation, thus proving that this regulation does not accomplish its goal.
Furthermore, by testing and licensing, the state gives the appearance of underwriting the competence of the licensees, and could therefore be held liable for failures, accidents, etc. caused by licensees.
2. Is the statute reasonable?
The answer is No!
This statute cannot be determined to be reasonable since it requires to the Citizen to give up his or her natural Right to travel unrestricted in order to accept the privilege. The purported goal of this statute could be met by much less oppressive regulations, i.e., competency tests and certificates of competency before using an automobile upon the public roads. (This is exactly the situation in the aviation sector.)
But isn't this what we have now?
The answer is No! The real purpose of this license is much more insidious. When one signs the license, he/she gives up his/her Constitutional Right to travel in order to accept and exercise a privilege. After signing the license, a quasi-contract, the Citizen has to give the state his/her consent to be prosecuted for constructive crimes and quasi-criminal actions where there is no harm done and no damaged property.
These prosecutions take place without affording the Citizen of their Constitutional Rights and guarantees such a the Right to a trial by jury of twelve persons and the Right to counsel, as well as the normal safeguards such as proof of intent and a corpus dilecti and a grand jury indictment. These unconstitutional prosecutions take place because the Citizen is exercising a privilege and has given his/her "implied consent" to legislative enactments designed to control interstate commerce, a regulatable enterprise under the police power of the state.
We must now conclude that the Citizen is forced to give up Constitutional guarantees of "Right" in order to exercise his state "privilege" to travel upon the public highways in the ordinary course of life and business.
SURRENDER OF RIGHTS
A Citizen cannot be forced to give up his/her Rights in the name of regulation.
"... the only limitations found restricting the right of the state to condition the use of the public highways as a means of vehicular transportation for compensation are (1) that the state must not exact of those it permits to use the highways for hauling for gain that they surrender any of their inherent U.S. Constitutional Rights as a condition precedent to obtaining permission for such use ..."
Riley vs. Laeson, 142 So. 619;
Stephenson vs. Binford, supra.
If one cannot be placed in a position of being forced to surrender Rights in order to exercise a privilege, how much more must this maxim of law, then, apply when one is simply exercising (putting into use) a Right?
"To be that statute which would deprive a Citizen of the rights of person or property, without a regular trial, according to the course and usage of the common law, would not be the law of the land."
Hoke vs. Henderson, 15 NC 15
"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., Pg. 47
Therefore, the Right of travel must be kept sacred from all forms of state taxation and if this argument is used by the state as a defense of the enforcement of this statute, then this argument also must fail.
CONVERSION OF A RIGHT TO A CRIME
As previously demonstrated, the Citizen has the Right to travel and to transport his property upon the public highways in the ordinary course of life and business. However, if one exercises this Right to travel (without first giving up the Right and converting that Right into a privilege) the Citizen is by statute, guilty of a crime. This amounts to converting the exercise of a Constitutional Right into a crime.
Recall the Miller vs. U.S. and Snerer vs. Cullen quotes from Pg. 5, and:
"The state cannot diminish Rights of the people."
Hurtado vs. California, 110 US 516
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."
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 616
The courts are "duty bound" to recognize and stop the "stealthy encroachments" which have been made upon the Citizen's Right to travel and to use the roads to transport his property in the "ordinary course of life and business." (Hadfield, supra.)
Further, the court must recognize that the Right to travel is part of the Liberty of which a Citizen cannot be deprived without specific cause and without the "due process of law" guaranteed in the Fifth Amendment. (Kent, supra.)
The history of this "invasion" of the Citizen's Right to use the public highways shows clearly that the legislature simply found a heretofore untapped source of revenue, got greedy, and attempted to enforce a statute in an unconstitutional manner upon those free and natural individuals who have a Right to travel upon the highways. This was not attempted in an outright action, but in a slow, meticulous, calculated encroachment upon the Citizen's Right to travel.
This position must be accepted unless the prosecutor can show his authority for the position that the "use of the road in the ordinary course of life and business" is a privilege.
To rule in any other manner, without clear authority for an adverse ruling, will infringe upon fundamental and basic concepts of Constitutional law. This position, that a Right cannot be regulated under any guise, must be accepted without concern for the monetary loss of the state.
"Disobedience or evasion of a Constitutional Mandate cannot be tolerated, even though such disobedience may, at least temporarily, promote in some respects the best interests of the public."
Slote vs. Examination, 112 ALR 660
"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 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."
Any other construction of this statute would render it unconstitutional as applied to this Citizen or any Citizen. The Accused therefore moves this court to dismiss the charge against him, with prejudice.
June 10, 1986.
This ends the legal brief.
Since no notice is given to people applying for driver's (or other) licenses that they have a perfect right to use the roads without any permission, and that they surrender valuable rights by taking on the regulation system of licensure, the state has committed a massive construction fraud. This occurs when any person is told that they must have a license in order to use the public roads and highways.
The license, being a legal contract under which the state is empowered with policing powers, is only valid when the licensee takes on the burdens of the contract and bargains away his or her rights knowingly, intentionally, and voluntarily.
Few know that the driver's license is a contract without which the police are powerless to regulate the people's actions or activities.
Few (if any) licensees intentionally surrender valuable rights. They are told that they must have the license. As we have seen, this is not the case.
No one in their right mind voluntarily surrenders complete liberty and accepts in its place a set of regulations.
"The people never give up their liberties but under some delusion."
Philosophy and Public Affairs ( Winter 1980) pp. 182-97
In this essay I shall argue that the state should require all parents to be licensed. My main goal is to demonstrate that the licensing of parents is theoretically desirable, though I shall also argue that a workable and just licensing program actually could be established.
In his Society essay, Lykken writes, "I will testify in support of a parental licensure bill to be introduced at the next session of the Minnesota State Legislature. The only sanction proposed in this bill for unlicensed parents who produce a child is periodic visits by child-protection caseworkers who will do an annual audit of each child's physical, social, and educational progress." However, Lykken asserts, "Minnesotans and their legislative representatives will [eventually] recognize the need to take one further step. That step, I suggest, should be to take custody of babies born to unlicensed mothers, before bonding occurs, and to place them for adoption or permanent care by professionally trained and supervised foster parents."
What I am mad about is the whole process of deception that goes on in the DL/court fiasco.
I got as far as the part that said that driver's licenses were illegal/unconstitutional. Somehow this writeup reminds me strongly of those tax protestor arguments.
Prism, one question... Do you have a drivers license ? In other words, are you willing to take a bullet for this stuff?
"Trust me, you won't get hurt. Go ahead and jump. I'll jump after you do."
Our society normally regulates a certain range of activities; it is illegal to perform these activities unless one has received prior permission to do so. We require automobile operators to have licenses. We forbid people from practicing medicine, law, pharmacy, or psychiatry unless they have satisfied certain licensing requirements.
Society's decision to regulate just these activities is not ad hoc. The decision to restrict admission to certain vocations and to forbid some people from driving is based on an eminently plausible, though not often explicitly formulated, rationale.(1) We require drivers to be licensed because driving an auto is an activity which is potentially harmful to others, safe performance of the activity requires a certain competence, and we have a moderately reliable procedure for determining that competence. The potential harm is obvious: incompetent drivers can and do maim and kill people. The best way we have of limiting this harm without sacrificing the benefits of automobile travel is to require that all drivers demonstrate at least minimal competence. We likewise license doctors,. lawyers, and psychologists because they perform activities which can harm others. Obviously they must be proficient if they are to perform these activities properly, and we have moderately reliable procedures for determining proficiency Imagine a world in which everyone could legally drive a car, in which everyone could legally perform surgery, prescribe medications, dispense drugs. or offer legal advice. Such a world would hardly be desirable.
Consequently, any activity that is potentially harmful to others and requires certain demonstrated competence for its safe performance, is subject to regulation that is, it is theoretically desirable that we regulate it. If we also have a reliable procedure for determining whether someone has the requisite competence, then the action is not only subject to regulation but ought, all things considered, to be regulated.
1. "When practice of a profession or calling requires special knowledge or skill and intimately affects public health, morals, order or safety, or general welfare, legislature may prescribe reasonable qualifications for persons desiring to pursue such professions or calling and require them to demonstrate possession of such qualifications by examination on subjects with which such profession or calling has to deal as a condition precedent to right to follow that profession or calling." 50 SE 2nd 735 (I949). Also see I99 US 306, 3I8 (I905) and I23 U8 623, 66I (I887).
No I do not. But I do not drive. No I will never get one, had one but no more.
Yes, I will take the bullet, again and again when the time comes.
As a self-described "Sovereign" individual, do you believe the States should license any of the above? If so, why?
Why don't you drive?
Point taken, thank you for illustrating that the ADMINISTRATIVE LAW you are under by accepting a DL is not concerned with public safety, its concern is to fleece as many people as possible while raising as little objection as possible.
Remove this system, and my violations of your rights through errant driving would be prosecuted LIKE THE CRIMES THEY ARE, with proper burden of proof and harsh penalties.
What happens now? I pay some dough, get a couple points maybe, and Im free to go!
Just what FR needs another _FED, cop, JBT
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