Folks,
We have been working with our web master on an Traffic Case and Billy is winning!
The City Attorney is refusing to show on the next date and the case will be dismissed!
Reporters are making contact as you are reading this.......................
----- Original Message -----
From: Billy wiseman
To: tina@dailycourtreview.com
Sent: Tuesday, August 05, 2003 1:58 AM
In the Circuit Court of the state of Oregon
CITY OF KLAMATH FALLS
CITY OF KLAMATH FALLS
Plaintiff-Respondent,
vs.
Defendant-Appellant
WILLIAM JON WISEMAN
PRO-SE
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circuit Court No. 0305676TR
citation # 64666
APPEAL
BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL
FOR LACK OF JURISDICTION
JURY TRIAL REQUESTED
BRIEF IN SUPPORT OF NOTICE
FOR DISMISSAL FOR LACK OFJURISDICTION
Appellant William Jon wiseman sovereign Native American Cherokee Indian Knows First Hand That Receiving a Drivers License From Any State does not give The License Driver The Knowledge to Drive But The Privilege to operate a motor vehicle. On January 30,2001 The ABOVE Appellant was Struck and Thrown 10 Feet And Put On Advance Life Support By A License HIT & RUN DRIVER Named Walter Broadwell IV Making The Appellant Fight For His Life (See Appellant EXIBIT C) In Which Appellant Had A Stroke and Causing Brain Damage In Which Appellant?s speech is slurred Making The Police Think Appellant Is Drunk or On Drugs But Appellant is 100% Sober and Drug FREE and even Refuses To Take Drugs For The Pain That he is still in. The Appellant was attempting to get an Oregon Drivers License (See Appellant EXIBIT B) however due to the defendant Not Felling Well Has not Done so The Only Time The Appellant Drives is When He Goes To The Store Or Goes To Church On Saturday Nights However Has not Been Going To Church as of Late..
Appellant Was Coming Back From The Store and at The Time Had The Owner a VIETNAM War Vet in The Car with The Appellant and was Stopping To Get Gas Before Going Home, The Appellant Has Been Driving Said 1984 Camaro (See Appellant EXIBIT C) sense June 2002 with no Tickets No Motor Vehicle Collision?s Or In Anyway Harmed Anyone On The Road. The Officer Made The Appellant and Owner Walk Home And Towed The Owners Car. Because The appellant Did Not Have A Drivers License and was Not Wearing a Seat Belt. And wrote Appellant a ticket and told to show up for court on july 31,2003. (See Appellant EXIBIT D )
On June 10 2003 Appellant Filed a Motion Common Law Vehicular Judicial Notice Constitional Drivers License (See Appellant EXIBIT E ) and The Municipal court Treated The Motion as a Letter and on july 18 2003 Judge Barbra DITACONI Denied The Motion and (See Appellant EXIBIT A ) Found The Appellant guilty as Charged and fined the Appellant $290 dollars without the right of trial by jury .
Article VIII, Section 3, of the Oregon Constitution (amended), provides that "[i]n actions at law, where the value in controversy shall exceed $200, the right of trial by jury shall be preserved.
The Appellant Filed Two More Motions On July 21,2003 One of Them asking That judge James uerlings step down From This case due to a conflict of interest in that said judge was on the board of directors at Basin Transit Service (See Appellant EXIBIT F ) and The Appellant felt he would not get a fair Trial Due to it being a Driving Case and Mr. uerlings job was to Look Out For The Bus/ Transit interest However it was Denied again as The Appellant had The Wrong Judge But The Right Firm.
Judge Barbra DIIACONI Did not Recuse Herself From This Case as she should have because judge James uerlings and Judge Barbra DIIACONI Own The Same Firm called: Boivin, Uerlings & DiIaconi, P.C.
The Appellant Attempted To Get a Drivers License From The DMV But Was Told He Could not have one because The Appellant Drivers License Was Revoked In Another State But That was 17 Years ago (See Appellant EXIBIT G) and should Be Held BY THIS COURT as UNConstitional. Appellant Is Not Asking This Court For The Privilege To Drive But HIS Constitional Right To Drive.
On July 1 ,2003 A new Vermont law, which went into effect stipulates that driving with a suspended license is only a civil offense, which can't be prosecuted in criminal court. (See Appellant EXIBIT H & I)
Equal protection requires that those individuals similarly situated are treated alike. City of Cleburne v Cleburne Living Center, 473 U.S. 432, 439 (1985).
.
Federal Law and Supreme Court Cases apply to State Court Cases
Howlett v. Rose, 496 U.S. 356 (1990)
The right to travel has long been considered a fundamental constitutional right. Attorney General of New York v. Soto-Lopez et al., 476 U.S. 898 (1986). Oregon extends this right to include intrastate travel in addition in interstate travel. Josephine County School District No & v. Oregon School Activities Association, 15 Or. App. 185, 515 P.2d 431 (1973).
The OREGON CODE OF JUDICIAL CONDUCT, States
Judicial Rule 1: Maintaining the Integrity of the Judicial System JR 1-101 (D) A judge shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. (E) A judge shall not allow family, social or other relationship to influence judicial conduct or judgment. F) A judge shall not use the position to advance the private interests of the judge or any person, nor shall a judge convey or permit anyone to convey the impression that anyone has a special influence with the judge, but a judge may provide a character or ability reference for a person about whom the judge has personal knowledge. (H) A judge shall not hold membership in any organization that the judge knows is a discriminatory organization. For purposes of this rule, "discriminatory organization" means an organization that, as a policy or practice and contrary to applicable federal or state law, treats persons less favorably in granting membership privileges, allowing participation or providing services on the basis of sex, race, national origin, religion, sexual orientation, marital status, disability or age.
Judicial Rule 2: Impartial and Diligent Performance of Judicial JR 2-102
(A) A judge shall provide to every person who has a legal interest in a proceeding, and to that person's lawyer, the right to be heard according to law.
JR 2-106
(A) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality reasonably may be questioned, including but not limited to instances when
(1) the judge has a bias or prejudice concerning a party or has personal knowledge or disputed evidentiary facts concerning the proceeding;
(2) the judge served as a lawyer in the matter in controversy, or a lawyer with whom
the judge previously was associated served during the association as a lawyer in the matter, or the judge or the lawyer has been a material witness in the matter;
(3) the judge knows that the judge, individually or as a fiduciary, or
the judge's spouse, parent or child, wherever residing, or any other person residing in the judge's household has a financial interest in the subject matter in controversy, is a party to the proceeding or has any other interest that could be substantially affected by the outcome of the proceeding;
(4) the judge, the judge's spouse, parent or child wherever residing, or any other person residing in the judge's household:
(a) is a party to the proceeding, or an officer, director, partner or trustee of a party;
(b) is acting as a lawyer in the proceeding;
(c) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or
(d) is, to the judge's knowledge, likely to be a material witness in the proceeding.
(B) A judge shall be responsible for knowing about the judge's financial interests, including such interests relating to service as a fiduciary, and shall make reasonable efforts to be informed about the financial interests of the judge's spouse, domestic partner, parents and children, wherever residing.
(C) For purposes of this rule:
(1) "fiduciary" includes relationships such as personal representative, trustee, conservator and guardian;
(2) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, advisor or other active participant in the affairs of a party, except that:
(a) ownership in a mutual or common investment fund that owns securities is not a "financial interest" unless the judge participates in the management of the fund;
(b) holding an office in an educational, religious, charitable, fraternal or civic organization is not a "financial interest" in property of the organization;
(c) the proprietary interest of a policyholder in a mutual insurance company, a depositor in mutual savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest; and
(d) ownership of government securities is a "financial interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(D) A judge who is disqualified under this rule may, rather than withdraw from the proceeding, disclose on the record the basis of the disqualification. If, after such disclosure, the parties all agree in writing or on the record that the judge's relationship is immaterial or that the judge's financial interest is insubstantial, the judge may participate in the proceeding. Any writing, signed by or on behalf of all parties, shall be incorporated in the record of the proceeding.
JR 2-110
(A) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, court personnel and members of the public.
(B) A judge shall not act in a way that the judge knows, or reasonably should know, would
be perceived by a reasonable person as biased or prejudiced toward any of the litigants, jurors, witnesses, lawyers or members of the public.
(C) A judge shall require lawyers and court personnel who are subject to the judge's direction or control to act in accord with the principles embodied in paragraphs (A) and (B) of this rule.
(D) Paragraphs (B) and (C) of this rule do not preclude consideration or advocacy of any issue relevant to the proceeding.
Judicial Rule 3: Extra-Judicial Activities; Minimizing the Risk of Conflict with Judicial Obligations
JR 3-101
A judge shall not serve as an officer, director, trustee or advisor of a private or public corporation or of an educational, religious, charitable, fraternal, political or civic organization if the corporation or organization regularly engages in proceedings that would ordinarily come before the judge or in adversary proceedings in any court in Oregon.
JR 3-107
A judge shall not engage in the private practice of law, except as otherwise provided in JR 5-102.
Therefore Judge Barbra DITACONI has violated The Appellant?s Due process Rights The Due Process Clause of the Fifth
Amendment to the U.S. Constitution provides that,
"No person shall . . . be deprived of life, liberty, or property, without due process of law.
?Due process in administrative hearings includes a fair trial conducted in accordance with fundamental principles of fair play and applicable procedural standards established by law, and administrative convenience or necessity cannot override this requirement.? [Russell-Newman Mfg. Co. v. N.L.R.B., C.A. Tex 1966, 370 F2d 980]
?Due process requires that when government adjudicate or make binding determinations which directly affect legal rights of individuals, they use procedures which have traditionally been associated with judicial process.? [Amos Treat & Co. v. Securities & Echange Commission, 306 F2d 260 (1962), 113 US App. D.C. 100]
?Administrative due process requires:
(1) opportunity to be heard.
(2) due notice of hearing
(3) fair conduct of hearing
(4) support in record for decision
(5) submission of proposed findings and tentative report
(6) opportunity to file and to be heard upon exceptions to the report
[Ideal Farm, Inc. v. Benson, D.C. N.J. 1960, 181 F Supp 62, affirmed 288 F2d 608, Certiorari denied 83 Sct 1087, 327 US 965, 10 Led2d 128]
?The requirement of fair trial is binding on administrative agencies as well as on the courts? [U.S. v. Brad, D.C. Cal 1968]
?The fair hearing essential to meet minimal requirements of due process includes not only rudimentary fairness in conduct of hearing when and where held, but also reasonable fair opportunity to be present at time and place fixed to cross-examine any opposing witnesses, to offer evidence, and to be heard at least briefly in defense.? [Jeffries v. Olsen, D.C. Cal 1954, 121 Fsupp 163]
?A full hearing is one in which ample opportunity is afforded to all parties to make, by evidence and argument, a showing fairly adequate to establish the propriety or impropriety, from the standpoint of justice and law, of the step to be taken.? [Boston and M.R.R. v. U.S., D.C. Mass. 1962, 208 Fsupp 661]
NO STATE may convert a RIGHT into a PRIVILEGE and require a LICENSE or FEE for the exercise of that RIGHT!!! Please see MURDOCK vs. PENNSYLVANIA, 319 U.S. 105, and if a STATE does erroneously do require A LICENSE OR FEE for exercise of the RIGHT, the Citizen may IGNORE THE LICENSE AND OR FEE and exercise the RIGHT WITH TOTAL IMPUNITY!!! Please see SCHUTTLESWORTH vs. BIRMINGHAM 373 U.S. 262. YOU CAN NOT BE PUNISHED FOR THE EXERCISE OF A CONSTITUTIONAL RIGHT!!! Please see MILLER vs. UNITED STATES 230 F2nd 486.
If ever a judge understood the public's right to use the public roads,
it was Justice Tolman of the Supreme Court of the State of Washington.
Justice Tolman stated:
"Complete freedom of the highways is so old and well established a
blessing that we have forgotten the days of the Robber Barons and toll
roads, and yet, under an act like this, arbitrarily administered, the
highways may be completely monopolized, if, through lack of interest,
the people submit, then they may look to see the most sacred of their
liberties taken from them one by one, by more or less rapid
encroachment." Robertson vs. Department of Public Works, 180 Wash 133,
147.
The words of Justice Tolman ring most prophetically in the ears of
Citizens throughout the country today as the use of the public roads has
been monopolized by the very entity which has been empowered to stand
guard over our freedoms, i.e., that of state government.
RIGHTS
The "most sacred of liberties" of which Justice Tolman spoke was
personal liberty. The definition of personal liberty is:
"Personal liberty, or the Right to enjoyment of life and liberty,
is one of the fundamental or natural Rights, which has been protected by
its inclusion as a guarantee in the various constitutions, which is not
derived from, or dependent on, the U.S. Constitution, which may not be
submitted to a vote and may not depend on the outcome of an election. It
is one of the most sacred and valuable Rights, as sacred as the Right to
private property...and is regarded as inalienable." 16 C.J.S.,
Constitutional Law, Sect.202, p.987.
This concept is further amplified by the definition of personal liberty:
"Personal liberty largely consists of the Right of locomotion -- to
go where and when one pleases -- only so far restrained as the Rights of
others may make it necessary for the welfare of all other citizens. The
Right of the Citizen to travel upon the public highways and to transport
his property thereon, by horsedrawn carriage, wagon, or automobile, is
not a mere privilege which may be permitted or prohibited at will, but
the common Right which he has under his Right to life, liberty, and the
pursuit of happiness. Under this Constitutional guarantee one may,
therefore, under normal conditions, travel at his inclination along the
public highways or in public places, and while conducting himself in an
orderly and decent manner, neither interfering with nor disturbing
another's Rights, he will be protected, not only in his person, but in
his safe conduct." [emphasis added] II Am.Jur. (1st) Constitutional Law,
Sect.329, p.1135. ....and further... "Personal liberty -- consists of
the power of locomotion, of changing situations, of removing one's
person to whatever place one's inclination may direct, without
imprisonment or restraint unless by due process of law." 1 Blackstone's
Commentary 134; Hare, Constitution__.777; Bovier's Law Dictionary, 1914
ed., Black's Law Dictionary, 5th ed.
Justice Tolman was concerned about the State prohibiting the Citizen
from the "most sacred of his liberties," the Right of movement, the
Right of moving one's self from place to place without threat of
imprisonment, the Right to use the public roads in the ordinary course
of life.
When the State allows the formation of a corporation it may control its
creation by establishing guidelines (statutes) for its operation
(charters). Corporations who use the roads in the course of business do
not use the roads in the ordinary course of life. There is a difference
between a corporation and an individual. The United States Supreme Court
has stated:
"...We are of the opinion that there is a clear distinction in this
particular between an individual and a corporation, and that the latter
has no right to refuse to submit its books and papers for examination on
the suit of the State. The individual may stand upon his Constitutional
Rights as a Citizen. He is entitled to carry on his private business in
his own way. His power to contract is unlimited. He owes no duty to the
State or to his neighbors to divulge his business, or to open his doors
to investigation, so far as it may tend to incriminate him. He owes no
such duty to the State, since he receives nothing therefrom, beyond the
protection of his life, liberty, and property. His Rights are such as
the law of the land long antecedent to the organization of the state,
and can only be taken from him by due process of law, and in accordance
with the Constitution. Among his Rights are the refusal to incriminate
himself, and the immunity of himself and his property from arrest or
seizure except under warrant of law. He owes nothing to the public so
long as he does not trespass upon their rights.
"Upon the other hand, the corporation is a creature of the state.
It is presumed to be incorporated for the benefit of the public. It
receives certain special privileges and franchises, and holds them
subject to the laws of the state and the limitations of its charter.
Its rights to act as a corporation are only preserved to it so long as
it obeys the laws of its creation. There is a reserved right in the
legislature to investigate its contracts and find out whether it has
exceeded its powers. It would be a strange anomaly to hold that the
State, having chartered a corporation to make use of certain
franchises, could not in exercise of its sovereignty inquire how those
franchises had been employed, and whether they had been abused, and
demand the production of corporate books and papers for that purpose."
[emphasis added] Hale vs. Hinkel, 201 US 43, 74-75.
Corporations engaged in mercantile equity fall under the purview of the
State's admiralty jurisdiction, and the public at large must be
protected from their activities, as they (the corporations) are engaged
in business for profit.
"...Based upon the fundamental ground that the sovereign state has the
plenary control of the streets and highways in the exercise of its
police power (see police power, infra.), may absolutely prohibit the use
of the streets as a place for the prosecution of a private business for
gain. They all recognize the fundamental distinction between the
ordinary Right of the Citizen to use the streets in the usual way and
the use of the streets as a place of business or a main instrumentality
of business for private gain. The former is a common Right, the latter
is an extraordinary use. As to the former the legislative power is
confined to regulation, as to the latter it is plenary and extends even
to absolute prohibition. Since the use of the streets by a common
carrier in the prosecution of its business as such is not a right but a
mere license of privilege." Hadfield vs. Lundin, 98 Wash 657l, 168,
p.516.
It will be necessary to review early cases and legal authority in order
to reach a lawfully correct theory dealing with this Right or
"privilege." We will attempt to reach a sound conclusion as to what is a
"Right to use the road" and what is a "privilege to use the road". Once
reaching this determination, we shall then apply those positions to
modern case decision.
"Where rights secured by the Constitution are involved, there can
be no rule making or legislation which would abrogate them." Miranda
vs. Arizona, 384 US 436, 491. ...and... "The claim and exercise of a
constitutional Right cannot be converted into a crime." Miller vs. U.S.,
230 F. 486, 489. ...and... "There can be no sanction or penalty imposed
upon one because of this exercise of constitutional Rights." Snerer vs.
Cullen, 481 F. 946.
Streets and highways are established and maintained for the purpose of
travel and transportation by the public. Such travel may be for business
or pleasure.
"The use of the highways for the purpose of travel and
transportation is not a mere privilege, but a common and fundamental
Right of which the public and the individual cannot be rightfully
deprived." [emphasis added] Chicago Motor Coach vs. Chicago, 169 NE 22;
Ligare vs. Chicago, 28 NE 934; Boon vs. Clark, 214 SSW 607; 25 Am.Jur.
(1st) Highways Sect.163. ...and..."The Right of the Citizen to travel
upon the public highways and to transport his property thereon, either
by horse drawn carriage or by automobile, is not a mere privilege which
a city can prohibit or permit at will, but a common Right which he has
under the right to life, liberty, and the pursuit of happiness."
[emphasis added] Thompson vs. Smith, 154 SE 579.
So we can see that a Citizen has a Right to travel upon the public
highways by automobile and the Citizen cannot be rightfully deprived of
his Liberty. So where does the misconception that the use of the public
road is always and only a privilege come from?
"...For while a Citizen has the Right to travel upon the public
highways and to transport his property thereon, that Right does not
extend to the use of the highways, either in whole or in part, as a
place for private gain. For the latter purpose no person has a vested
right to use the highways of the state, but is a privilege or a license
which the legislature may grant or withhold at its discretion." State
vs. Johnson, 243 P. 1073; Hadfield, supra; Cummins vs. Homes, 155 P.
171; Packard vs. Banton, 44 S.Ct. 256; and other cases too numerous to
mention.
Here the court held that a Citizen has the Right to travel upon the
public highways, but that he did not have the right to conduct business
upon the highways. On this point of law all authorities are unanimous.
"Heretofore the court has held, and we think correctly, that while
a Citizen has the Right to travel upon the public highways and to
transport his property thereon, that Right does not extend to the use of
the highways, either in whole or in part, as a place of business for
private gain." Barney vs. Board of Railroad Commissioners, 17 P.2d 82;
Willis vs. Buck, 263 P.l 982. and... "The right of the citizen to
travel upon the highway and to transport his property thereon, in the
ordinary course of life and business, differs radically and obviously
from that of one who makes the highway his place of business for
private gain in the running of a stagecoach or omnibus." State vs. City
of Spokane, 186 P. 864.
What is this Right of the Citizen which differs so "radically and
obviously" from one who uses the highway as a place of business? Who
better to enlighten us than Justice Tolman of the Supreme Court of
Washington State? In State vs. City of Spokane, supra, the Court also
noted a very "radical and obvious" difference, but went on to explain
just what the difference is:
"The former is the usual and ordinary right of the Citizen, a
common right to all, while the latter is special, unusual, and
extraordinary." and... "This distinction, elementary and fundamental
in character, is recognized by all the authorities." State vs. City of
Spokane, supra.
This position does not hang precariously upon only a few cases, but has
been proclaimed by an impressive array of cases ranging from the state
courts to the federal courts.
"the right of the Citizen to travel upon the highway and to
transport his property thereon in the ordinary course of life and
business, differs radically and obviously from that of one who makes the
highway his place of business and uses it for private gain in the
running of a stagecoach or omnibus. The former is the usual and ordinary
right of the Citizen, a right common to all, while the latter is
special, unusual, and extraordinary." Ex Parte Dickey, (Dickey vs.
Davis), 85 SE 781. ...and... "The right of the Citizen to travel upon
the public highways and to transport his property thereon, in the
ordinary course of life and business, is a common right which he has
under the right to enjoy life and liberty, to acquire and possess
property, and to pursue happiness and safety. It includes the right, in
so doing, to use the ordinary and usual conveyances of the day, and
under the existing modes of travel, includes the right to drive a horse
drawn carriage or wagon thereon or to operate an automobile thereon,
for the usual and ordinary purpose of life and business." Teche Lines
vs. Danforth, Miss., 12 S.2d 784; Thompson vs. Smith, supra.
There is no dissent among various authorities as to this position. (See
Am.Jur. [1st] Const. Law, 329 and corresponding Am. Jur. [2nd].)
"Personal liberty -- or the right to enjoyment of life and liberty
-- is one of the fundamental or natural rights, which has been
protected by its inclusion as a guarantee in the various constitutions,
which is not derived from nor dependent on the U.S. Constitution... It
is one of the most sacred and valuable rights [remember the words of
Justice Tolman, supra.] as sacred as the right to private
property...and is regarded as inalienable." 16 C.J.S. Const. Law,
Sect.202, p.987.
As we can see, the distinction between a "Right" to use the public roads
and a "privilege" to use the public roads is drawn upon the line of
"using the road as a place of business" and the various state courts
have held so. But what have the U.S. courts held on this point?
"First, it is well established law that the highways of the state
are public property, and their primary and preferred use is for private
purposes, and that their use for purposes of gain is special and
extraordinary which, generally at least, the legislature may prohibit
or condition as it sees fit." Stephenson vs. Rinford, 287 US 251;
Pachard vs Banton, 264 US 140, and cases cited; Frost and F. Trucking
Co. vs. Railroad Commission, 271 US 592; Railroad commission vs.
Inter-City Forwarding Co., 57 SW.2d 290; Parlett Cooperative vs.
Tidewater Lines, 164 A. 313.
So what is a privilege to use the roads? By now it should be apparent
even to the "learned" that an attempt to use the road as a place of
business is a privilege. The distinction must be drawn between...
1.Travelling upon and transporting one's property upon the public
roads, which is our Right; and...
2.Using the public roads as a place of business or a main
instrumentality of business, which is a privilege.
"[The roads]...are constructed and maintained at public expense,
and no person therefore, can insist that he has, or may acquire, a
vested right to their use in carrying on a commercial business." Ex
Parte Sterling, 53 SW.2d 294; Barney vs. Railroad Commissioners, 17
P.2d 82; Stephenson vs. Binford, supra.
"When the public highways are made the place of business the state
has a right to regulate their use in the interest of safety and
convenience of the public as well as the preservation of the highways."
Barney vs. Railroad Commissioners, supra.
"[The state's] right to regulate such use is based upon the nature
of the business and the use of the highways in connection therewith."
Ibid.
"We know of no inherent right in one to use the highways for
commercial purposes. The highways are primarily for the use of the
public, and in the interest of the public, the state may prohibit or
regulate...the use of the highways for gain." Robertson vs. Dept. of
Public Works, supra.
There should be considerable authority on a subject as important a this
deprivation of the liberty of the individual "using the roads in the
ordinary course of life and business." However, it should be noted that
extensive research has not turned up one case or authority acknowledging
the state's power to convert the individual's right to travel upon the
public roads into a "privilege."
Therefore, it is concluded that the Citizen does have a "Right" to
travel and transport his property upon the public highways and roads and
the exercise of this Right is not a "privilege."
DEFINITIONS
In order to understand the correct application of the statute in
question, we must first define the terms used in connection with this
point of law. As will be shown, many terms used today do not, in their
legal context, mean what we assume they mean, thus resulting in the
misapplication of statutes in the instant case.
AUTOMOBILE AND MOTOR VEHICLE
There is a clear distinction between an automobile and a motor vehicle.
An automobile has been defined as:
"The word `automobile' connotes a pleasure vehicle designed for the
transportation of persons on highways." American Mutual Liability Ins.
Co., vs. Chaput, 60 A.2d 118, 120; 95 NH 200.
While the distinction is made clear between the two as the courts have
stated:
"A motor vehicle or automobile for hire is a motor vehicle, other
than an automobile stage, used for the transportation of persons for
which remuneration is received." International Motor Transit Co. vs.
Seattle, 251 P. 120.
"The term `motor vehicle' is different and broader than the word
`automobile.'" City of Dayton vs. DeBrosse, 23 NE.2d 647, 650; 62 Ohio
App. 232.
The distinction is made very clear in Title 18 USC 31:
"Motor vehicle" means every description or other contrivance
propelled or drawn by mechanical power and used for commercial purposes
on the highways in the transportation of passengers, or passengers and
property.
"Used for commercial purposes" means the carriage of persons or
property for any fare, fee, rate, charge or other considerations, or
directly or indirectly in connection with any business, or other
undertaking intended for profit.
Clearly, an automobile is private property in use for private purposes,
while a motor vehicle is a machine which may be used upon the highways
for trade, commerce, or hire.
TRAVEL
The term "travel" is a significant term and is defined as:
"The term `travel' and `traveler' are usually construed in their
broad and general sense...so as to include all those who rightfully use
the highways viatically (when being reimbursed for expenses) and who
have occasion to pass over them for the purpose of business,
convenience, or pleasure." [emphasis added] 25 Am.Jur. (1st) Highways,
Sect.427, p.717.
"Traveler -- One who passes from place to place, whether for
pleasure, instruction, business, or health." Locket vs. State, 47 Ala.
45; Bovier's Law Dictionary, 1914 ed., p. 3309.
"Travel -- To journey or to pass through or over; as a country
district, road, etc. To go from one place to another, whether on foot,
or horseback, or in any conveyance as a train, an automobile, carriage,
ship, or aircraft; Make a journey." Century Dictionary, p.2034.
Therefore, the term "travel" or "traveler" refers to one who uses a
conveyance to go from one place to another, and included all those who
use the highways as a matter of Right.
Notice that in all these definitions the phrase "for hire" never occurs.
This term "travel" or "traveler" implies, by definition, one who uses
the road as a means to move from one place to another.
Therefore, one who uses the road in the ordinary course of life and
business for the purpose of travel and transportation is a traveler.
DRIVE
Florida § Chapter 322.01 Definitions(15) "Drive" means to operate or
be in actual physical control of a motor vehicle in any place open to
the general public for purposes of vehicular traffic.
(See "traffic" infra)
DRIVER
The term "driver" in contradistinction to "traveler,": is defined as:
"Driver -- One employed in conducting a coach, carriage, wagon, or
other vehicle..." Bovier's Law Dictionary, 1914 ed., p. 940.
Notice that this definition includes one who is "employed" in conducting
a vehicle. It should be self-evident that this person could not be
"travelling" on a journey, but is using the road as a place of business.
OPERATOR
Today we assume that a "traveler" is a "driver," and a "driver" is an
"operator." However, this is not the case.
"It will be observed from the language of the ordinance that a
distinction is to be drawn between the terms `operator' and `driver';
the `operator' of the service car being the person who is licensed to
have the car on the streets in the business of carrying passengers for
hire; while the `driver' is the one who actually drives the car.
However, in the actual prosecution of business, it was possible for the
same person to be both `operator' and `driver.'" Newbill vs. Union
Indemnity Co., 60 SE.2d 658.
To further clarify the definition of an "operator" the court observed
that this was a vehicle "for hire" and that it was in the business of
carrying passengers.
This definition would seem to describe a person who is using the road as
a place of business, or in other words, a person engaged in the
"privilege" of using the road for gain.
This definition, then, is a further clarification of the distinction
mentioned earlier, and therefore:
1.Traveling upon and transporting one's property upon the public
roads as a matter of Right meets the definition of a traveler.
2.Using the road as a place of business as a matter of privilege
meets the definition of a driver or an operator or both.
TRAFFIC
Having defined the terms "automobile," "motor vehicle," "traveler,"
"driver," and "operator," the next term to define is "traffic":
"...Traffic thereon is to some extent destructive, therefore, the
prevention of unnecessary duplication of auto transportation service
will lengthen the life of the highways or reduce the cost of
maintenance, the revenue derived by the state...will also tend toward
the public welfare by producing at the expense of those operating for
private gain, some small part of the cost of repairing the wear..."
Northern Pacific R.R. Co. vs. Schoenfeldt, 213 P. 26.
Note: In the above, Justice Tolman expounded upon the key of raising
revenue by taxing the "privilege" to use the public roads "at the
expense of those operating for gain."
In this case, the word "traffic" is used in conjunction with the
unnecessary Auto Transportation Service, or in other words, "vehicles
for hire." The word "traffic" is another word which is to be strictly
construed to the conducting of business.
"Traffic -- Commerce, trade, sale or exchange of merchandise,
bills, money, or the like. The passing of goods and commodities from
one person to another for an equivalent in goods or money..." Bovier's
Law Dictionary, 1914 ed., p. 3307.
Here again, notice that this definition refers to one "conducting
business." No mention is made of one who is traveling in his automobile.
This definition is of one who is engaged in the passing of a commodity
or goods in exchange for money, i.e.., vehicles for hire.
Furthermore, the word "traffic" and "travel" must have different
meanings which the courts recognize. The difference is recognized in Ex
Parte Dickey, supra:
"...in addition to this, cabs, hackney coaches, omnibuses,
taxicabs, and hacks, when unnecessarily numerous, interfere with the
ordinary traffic and travel and obstruct them."
The court, by using both terms, signified its recognition of a
distinction between the two. But, what was the distinction? We have
already defined both terms, but to clear up any doubt:
"The word `traffic' is manifestly used here in secondary sense, and
has reference to the business of transportation rather than to its
primary meaning of interchange of commodities." Allen vs. City of
Bellingham, 163 P. 18.
Here the Supreme Court of the State of Washington has defined the word
"traffic" (in either its primary or secondary sense) in reference to
business, and not to mere travel! So it is clear that the term "traffic"
is business related and therefore, it is a "privilege." The net result
being that "traffic" is brought under the (police) power of the
legislature. The term has no application to one who is not using the
roads as a place of business.
LICENSE
Florida § Chapter 322.01 Definitions (16) "Driver's license" means a
certificate which, subject to all other requirements of law, authorizes
an individual to drive a motor vehicle.
It is clear that Florida's definitions and meaning for the above is for
commerce not travel.
It seems only proper to define the word "license," as the definition of
this word will be extremely important in understanding the statutes as
they are properly applied:
"The permission, by competent authority to do an act which without
permission, would be illegal, a trespass, or a tort." People vs.
Henderson, 218 NW.2d 2, 4.
"Leave to do a thing which licensor could prevent." Western
Electric Co. vs. Pacent Reproducer Corp., 42 F.2d 116, 118.
In order for these two definitions to apply in this case, the state
would have to take up the position that the exercise of a Constitutional
Right to use the public roads in the ordinary course of life and
business is illegal, a trespass, or a tort, which the state could then
regulate or prevent.
This position, however, would raise magnitudinous Constitutional
questions as this position would be diametrically opposed to fundamental
Constitutional Law. (See "Conversion of a Right to a Crime," infra.)
In the instant case, the proper definition of a "license" is:
"a permit, granted by an appropriate governmental body, generally
for consideration, to a person, firm, or corporation, to pursue some
occupation or to carry on some business which is subject to regulation
under the police power." [emphasis added] Rosenblatt vs. California
State Board of Pharmacy, 158 P.2d 199, 203.
This definition would fall more in line with the "privilege" of carrying
on business on the streets.
Most people tend to think that "licensing" is imposed by the state for
the purpose of raising revenue, yet there may well be more subtle
reasons contemplated; for when one seeks permission from someone to do
something he invokes the jurisdiction of the "licensor" which, in this
case, is the state. In essence, the licensee may well be seeking to be
regulated by the "licensor."
"A license fee is a charge made primarily for regulation, with the
fee to cover costs and expenses of supervision or regulation." State
vs. Jackson, 60 Wisc.2d 700; 211 NW.2d 480, 487.
The fee is the price; the regulation or control of the licensee is the
real aim of the legislation.
Are these licenses really used to fund legitimate government, or are
they nothing more than a subtle introduction of police power into every
facet of our lives? Have our "enforcement agencies" been diverted from
crime prevention, perhaps through no fault of their own, instead now
busying themselves as they "check" our papers to see that all are
properly endorsed by the state?
How much longer will it be before we are forced to get a license for our
lawn mowers, or before our wives will need a license for her "blender"
or "mixer?" They all have motors on them and the state can always use
the revenue.
POLICE POWER
The confusion of the police power with the power of taxation usually
arises in cases where the police power has affixed a penalty to a
certain act, or where it requires licenses to be obtained and a certain
sum be paid for certain occupations. The power used in the instant case
cannot, however, be the power of taxation since an attempt to levy a tax
upon a Right would be open to Constitutional objection. (See "taxing
power," infra.)
Each law relating to the use of police power must ask three questions:
"1. Is there threatened danger? 2. Does a regulation involve a
Constitutional Right? 3. Is this regulation reasonable?" People vs.
Smith, 108 Am.St.Rep. 715; Bovier's Law Dictionary, 1914 ed., under
"Police Power."
When applying these three questions to the statute in question, some
very important issues emerge.
First, "is there a threatened danger" in the individual using his Private
automobile on the public highways, in the ordinary course of life and
business?
The answer is No! There is nothing inherently dangerous in the use of an
automobile when it is carefully managed. Their guidance, speed, and
noise are subject to a quick and easy control, under a competent and
considerate manager, it is as harmless on the road as a horse and buggy.
It is the manner of managing the automobile, and that alone, which
threatens the safety of the public. The ability to stop quickly and to
respond quickly to guidance would seem to make the automobile one of the
least dangerous conveyances. (See Yale Law Journal, December, 1905.)
"The automobile is not inherently dangerous." Cohens vs. Meadow, 89
SE 876; Blair vs. Broadmore, 93 SE 532.
To deprive all persons of the Right to use the road in the ordinary
course of life and business, because one might, in the future, become
dangerous, would be a deprivation not only of the Right to travel, but
also the Right to due process. (See "Due Process," infra.)
Next, does the regulation involve a Constitutional Right?
This question has already been addressed and answered in this brief, and
need not be reinforced other than to remind this Court that this Citizen
does have the Right to travel upon the public highway by automobile in
the ordinary course of life and business. It can therefore be concluded
that this regulation does involve a Constitutional Right.
The third question is the most important in this case. "Is this
regulation reasonable?"
The answer is No! It will be shown later in "Regulation," infra., that
this licensing statute is oppressive and could be effectively
administered by less oppressive means.
Although the Fourteenth Amendment does not interfere with the proper
exercise of the police power, in accordance with the general principle
that the power must be exercised so as not to invade unreasonably the
rights guaranteed by the United States Constitution, it is established
beyond question that every state power, including the police power, is
limited by the Fourteenth Amendment (and others) and by the inhibitions
there imposed.
Moreover, the ultimate test of the propriety of police power regulations
must be found in the Fourteenth Amendment, since it operates to limit
the field of the police power to the extent of preventing the
enforcement of statutes in denial of Rights that the Amendment protects.
(See Parks vs. State, 64 NE 682.)
"With regard particularly to the U.S. Constitution, it is
elementary that a Right secured or protected by that document cannot be
overthrown or impaired by any state police authority." Connolly vs.
Union Sewer Pipe Co., 184 US 540; Lafarier vs. Grand Trunk R.R. Co., 24
A. 848; O'Neil vs. Providence Amusement Co., 108 A. 887.
"The police power of the state must be exercised in subordination
to the provisions of the U.S. Constitution." [emphasis added]
Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613;
Bacahanan vs. Wanley, 245 US 60.
"It is well settled that the Constitutional Rights protected from
invasion by the police power, include Rights safeguarded both by
express and implied prohibitions in the Constitutions." Tiche vs.
Osborne, 131 A. 60.
"As a rule, fundamental limitations of regulations under the police
power are found in the spirit of the Constitutions, not in the letter,
although they are just as efficient as if expressed in the clearest
language." Mehlos vs. Milwaukee, 146 NW 882.
As it applies in the instant case, the language of the Fifth Amendment
is clear:
No person shall be...deprived of Life, Liberty, or Property without
due process of law.
As has been shown, the courts at all levels have firmly established an
absolute Right to travel.
In the instant case, the state, by applying commercial statutes to all
entities, natural and artificial persons alike, has deprived this free
and natural person of the Right of Liberty, without cause and without
due process of law.
DUE PROCESS
"The essential elements of due process of law are...Notice and The
Opportunity to defend." Simon vs. Craft, 182 US 427.
Yet, not one individual has been given notice of the loss of his/her
Right, let alone before signing the license (contract). Nor was the
Citizen given any opportunity to defend against the loss of his/her
right to travel, by automobile, on the highways, in the ordinary course
of life and business. This amounts to an arbitrary deprivation of
Liberty.
"There should be no arbitrary deprivation of Life or Liberty..."
Barbour vs. Connolly, 113 US 27, 31; Yick Wo vs. Hopkins, 118 US 356.
...and... "The right to travel is part of the Liberty of which a
citizen cannot deprived without due process of law under the Fifth
Amendment. This Right was emerging as early as the Magna Carta." Kent
vs. Dulles, 357 US 116 (1958).
The focal point of this question of police power and due process must
balance upon the point of making the public highways a safe place for
the public to travel. If a man travels in a manner that creates actual
damage, an action would lie (civilly) for recovery of damages. The state
could then also proceed against the individual to deprive him of his
Right to use the public highways, for cause. This process would fulfill
the due process requirements of the Fifth Amendment while at the same
time insuring that Rights guaranteed by the U.S. Constitution and the
state constitutions would be protected.
But unless or until harm or damage (a crime) is committed, there is no
cause for interference in the private affairs or actions of a Citizen.
One of the most famous and perhaps the most quoted definitions of due
process of law, is that of Daniel Webster in his Dartmouth College Case
(4 Wheat 518), in which he declared that by due process is meant "a law
which hears before it condemns, which proceeds upon inquiry, and renders
judgment only after trial." (See also State vs. Strasburg, 110 P. 1020;
Dennis vs. Moses, 52 P. 333.)
Somewhat similar is the statement that is a rule as old as the law that
"no one shall be personally bound (restricted) until he has had his day
in court," by which is meant, until he has been duly cited to appear and
has been afforded an opportunity to be heard. Judgment without such
citation and opportunity lacks all the attributes of a judicial
determination; it is judicial usurpation and it is oppressive and can
never be upheld where it is fairly administered. (12 Am.Jur. [1st]
Const. Law, Sect.573, p.269.)
Note: This sounds like the process used to deprive one of the
"privilege" of operating a motor vehicle "for hire." It should be kept
in mind, however, that we are discussing the arbitrary deprivation of
the Right to use the road that all citizens have "in common."
The futility of the state's position can be most easily observed in the
1959 Washington Attorney General's opinion on a similar issue:
"The distinction between the Right of the Citizen to use the public
highways for private, rather than commercial purposes is recognized..."
...and... "Under its power to regulate private uses of our highways, our
legislature has required that motor vehicle operators be licensed (I.C.
49-307). Undoubtedly, the primary purpose of this requirement is to
insure, as far as possible, that all motor vehicle operators will be
competent and qualified, thereby reducing the potential hazard or risk
of harm, to which other users of the highways might otherwise be
subject. But once having complied with this regulatory provision, by
obtaining the required license, a motorist enjoys the privilege of
traveling freely upon the highways..." Washington A.G.O. 59-60 No. 88,
p. 11.
This alarming opinion appears to be saying that every person using an
automobile as a matter of Right, must give up the Right and convert the
Right into a privilege. This is accomplished under the guise of
regulation. This statement is indicative of the insensitivity, even the
ignorance, of the government to the limits placed upon governments by
and through the several constitutions.
This legal theory may have been able to stand in 1959; however, as of
1966, in the United States Supreme Court decision in Miranda, even this
weak defense of the state's actions must fall.
"Where rights secured by the Constitution are involved, there can
be no rule making or legislation which would abrogate them." Miranda vs.
Arizona, 384 US 436, 491.
Thus the legislature does not have the power to abrogate the Citizen's
Right to travel upon the public roads, by passing legislation forcing
the citizen to waive his Right and convert that Right into a privilege.
Furthermore, we have previously established that this "privilege" has
been defined as applying only to those who are "conducting business in
the streets" or "operating for-hire vehicles."
The legislature has attempted, by legislative fiat, to deprive the
Citizen of his Right to use the roads in the ordinary course of life and
business, without affording the Citizen the safeguard of "due process of
law." This has been accomplished under supposed powers of regulation.
REGULATION
"In addition to the requirement that regulations governing the use
of the highways must not be vocative of constitutional guarantees, the
prime essentials of such regulation are reasonableness, impartiality,
and definiteness or certainty." 25 Am.Jur. (1st) Highways, Sect.260.
...and... "Moreover, a distinction must be observed between the
regulation of an activity which may be engaged in as a matter of right
and one carried on by government sufferance of permission." Davis vs.
Massachusetts, 167 US 43; Pachard vs Banton, supra.
One can say for certain that these regulations are impartial since they
are being applied to all, even though they are clearly beyond the limits
of the legislative powers. However, we must consider whether such
regulations are reasonable and vocative-vocative 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 delicti 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 regulated enterprise under the police power of the state.
We must now conclude that the Citizen is forced to give up
Constitutional guarantees of "Right" in order to exercise his state
"privilege" to travel upon the public highways in the ordinary course of
life and business.
SURRENDER OF RIGHTS
A Citizen cannot be forced to give up his/her Rights in the name of
regulation.
"...the only limitations found restricting the right of the state
to condition the use of the public highways as a means of vehicular
transportation for compensation are (1) that the state must not exact of
those it permits to use the highways for hauling for gain that they
surrender any of their inherent U.S. Constitutional Rights as a
condition precedent to obtaining permission for such use..." [emphasis
added] Riley vs. Laeson, 142 So. 619; Stephenson vs. Binford, supra.
If one cannot be placed in a position of being forced to surrender
Rights in order to exercise a privilege, how much more must this maxim
of law, then, apply when one is simply exercising (putting into use) a
Right?
"To be that statute which would deprive a Citizen of the rights of
person or property, without a regular trial, according to the course
and usage of the common law, would not be the law of the land." Hoke vs.
Henderson, 15 NC 15. ...and... "We find it intolerable that one
Constitutional Right should have to be surrendered in order to assert
another." Simons vs. United States, 390 US 389.
Since the state requires that one give up Rights in order to exercise
the privilege of driving, the regulation cannot stand under the police
power, due process, or regulation, but must be exposed as a statute
which is oppressive and one which has been misapplied to deprive the
Citizen of Rights guaranteed by the United States Constitution and the
state constitutions.
TAXING POWER
"Any claim that this statute is a taxing statute would be
immediately open to severe Constitutional objections. If it could be
said that the state had the power to tax a Right, this would enable the
state to destroy Rights guaranteed by the constitution through the use
of oppressive taxation. The question herein, is one of the state taxing
the Right to travel by the ordinary modes of the day, and whether this
is a legislative object of the state taxation.
The views advanced herein are neither novel nor unsupported by
authority. The question of taxing power of the states has been
repeatedly considered by the Supreme Court. The Right of the state to
impede or embarrass the Constitutional operation of the U.S. Government
or the Rights which the Citizen holds under it, has been uniformly
denied." McCulloch vs. Maryland, 4 Wheat 316.
The power to tax is the power to destroy, and if the state is given the
power to destroy Rights through taxation, the framers of the
Constitution wrote that document in vain.
"...It may be said that a tax of one dollar for passing through the
state cannot sensibly affect any function of government or deprive a
Citizen of any valuable Right. But if a state can tax...a passenger of
one dollar, it can tax him a thousand dollars." Crandall vs. Nevada, 6
Wall 35, 46. ...and... "If the Right of passing through a state by a
Citizen of the United States is one guaranteed by the Constitution, it
must be sacred from state taxation." Ibid., p.47.
Therefore, the Right of travel must be kept sacred from all forms of
state taxation and if this argument is used by the state as a defense of
the enforcement of this statute, then this argument also must fail.
CONVERSION OF A RIGHT TO A CRIME
As previously demonstrated, the Citizen has the Right to travel and to
transport his property upon the public highways in the ordinary course
of life and business. However, if one exercises this Right to travel
(without first giving up the Right and converting that Right into a
privilege) the Citizen is by statute, guilty of a crime. This amounts to
converting the exercise of a Constitutional Right into a crime.
Recall the Miller vs. U.S. and Snerer vs. Cullen quotes, and, ... "The
state cannot diminish Rights of the people." Hurtado vs. California, 110
US 516. ...and... "Where rights secured by the Constitution are
involved, there can be no rule making or legislation which would
abrogate them." Miranda, supra.
Indeed, the very purpose for creating the state under the limitations of
the constitution was to protect the rights of the people from intrusion,
particularly by the forces of government.
So we can see that any attempt by the legislature to make the act of
using the public highways as a matter of Right into a crime, is void
upon its face.
Any person who claims his Right to travel upon the highways, and so
exercises that Right, cannot be tried for a crime of doing so. And yet,
this Freeman stands before this court today to answer charges for the
"crime" of exercising his Right to Liberty.
As we have already shown, the term "drive" can only apply to those who
are employed in the business of transportation for hire. It has been
shown that freedom includes the Citnzen's Right to use the public
highways in the ordinary course of life and business without license or
regulation by the police powers of the state.
CONCLUSION
It is the duty of the court to recognize the substance of things and not
the mere form.
"The courts are not bound by mere form, nor are they to be misled
by mere pretenses. They are at liberty -- indeed they are under a
solemn duty -- to look at the substance of things, whenever they enter
upon the inquiry whether the legislature has transcended the limits of
its authority. If, therefore, a statute purported to have been enacted
to protect...the public safety, has no real or substantial relation to
those objects or is a palpable invasion of Rights secured by the
fundamental law, it is the duty of the courts to so adjudge, and thereby
give effect to the Constitution." Mulger vs. Kansas, 123 US 623, 661.
...and... "It is the duty of the courts to be watchful for the
Constitutional rights of the citizen and against any stealthy
encroachments thereon." Boyd vs. United States, 116 US 616.
The courts are "duty bound" to recognize and stop the "stealthy
encroachments" which have been made upon the Citizen's Right to travel
and to use the roads to transport his property in the "ordinary course
of life and business." (Hadfield, supra.)
Further, the court must recognize that the Right to travel is part of
the Liberty of which a Citizen cannot be deprived without specific cause
and without the "due process of law" guaranteed in the Fifth Amendment.
(Kent, supra.)
The history of this "invasion" of the Citizen's Right to use the public
highways shows clearly that the legislature simply found a heretofore
untapped source of revenue, got greedy, and attempted to enforce a
statute in an unconstitutional manner upon those free and natural
individuals who have a Right to travel upon the highways. This was not
attempted in an outright action, but in a slow, meticulous, calculated
encroachment upon the Citizen's Right to travel.
This position must be accepted unless the prosecutor can show his
authority for the position that the "use of the road in the ordinary
course of life and business" is a privilege.
To rule in any other manner, without clear authority for an adverse
ruling, will infringe upon fundamental and basic concepts of
Constitutional law. This position, that a Right cannot be regulated
under any guise, must be accepted without concern for the monetary loss
of the state.
"Disobedience or evasion of a Constitutional Mandate cannot be
tolerated, even though such disobedience may, at least temporarily,
promote in some respects the best interests of the public." Slote vs.
Examination, 112 ALR 660. ...and... "Economic necessity cannot justify a
disregard of Constitutional guarantee." Riley vs. Carter, 79 ALR 1018;
16 Am.Jur. (2nd), Const. Law, Sect.81. ...and... "Constitutional Rights
cannot be denied simply because of hostility to their assertions and
exercise; vindication of conceded Constitutional Rights cannot be made
dependent upon any theory that it is less expensive to deny them than to
afford them." Watson vs. Memphis, 375 US 526.
Wherefore, the Court's decision in the instant case must be made without
the issue of cost to the state being taken into consideration, as that
issue is irrelevant. The state cannot lose money that it never had a
right to demand from the "Sovereign People."
Finally, we come to the issue of "public policy." It could be argued
that the "licensing scheme" of all persons is a matter of "public
policy." However, if this argument is used, it too must fail, as:
"No public policy of a state can be allowed to override the
positive guarantees of the U.S. Constitution." 16 Am.Jur. (2nd), Const.
Law, Sect.70.
So even "public policy" cannot abrogate this Citizen's Right to travel
and to use the public highways in the ordinary course of life and
business.
Therefore, it must be concluded that:
"We have repeatedly held that the legislature may regulate the use
of the highways for carrying on business for private gain and that such
Regulation is a valid exercise of the police power." Northern Pacific
R.R. Co., supra. ...and... "The act in question is a valid regulation,
and as such is binding upon all who use the highway for the purpose of
private gain." Ibid.
Any other construction of this statute would render it unconstitutional
as applied to this Citizen or any Citizen. Your Defendant was not and
does not traffic anything nor was he involved in traffic as defined
above or in any legal or other dictionary. There was no crime committed
by your Defendant
Now NO STATE may convert a RIGHT into a PRIVILEGE and require a LICENSE or FEE for the exercise of that RIGHT!!! Please see MURDOCK vs. PENNSYLVANIA, 319 U.S. 105, and if a STATE does erroneously do require A LICENSE OR FEE for exercise of the RIGHT, the Citizen may IGNORE THE LICENSE AND OR FEE and exercise the RIGHT WITH TOTAL IMPUNITY!!! Please see SCHUTTLESWORTH vs. BIRMINGHAM 373 U.S. 262. YOU CAN NOT BE PUNISHED FOR THE EXERCISE OF A CONSTITUTIONAL RIGHT!!! Please see MILLER vs. UNITED STATES 230 F2nd 486.
since the Constitution is the Supreme Law of the Land, it must reign supreme, Marbury v. Madison, 5 U.S. 137 (1803)
THEREFORE being your Appellant has committed no crime, for there are no
injured parties or complaining parties with common law and/or statute
standing, causing this court to lack jurisdiction as shown above, this
sovereign, WILLIAM JON WISEMAN, (as denoted by his Affidavit of Common
Law Citizenship) moves this case be dismissed in favor of your Appellant. If not dismissed, a stay is requested while this Brief is
appealed to the higher courts.
CERTIFICATE OF SERVICE
I Certify That on 28 day of July, 2003 I served a true copy of this Notice of Appeal On:
Rick WhitLock
City Attorney
500 Klamath Avenue
Klamath Falls or 97601
By hand delivery
August 4, 2003
________________________________
WILLIAM JON WISEMAN
Signed without Prejudice
By A Good and Lawful Christian
1625 SISKIYOU ST UNIT A
KLAMATH FALLS, OR 97601
STATE OF OREGON
COUNTY OF KLAMATH
BE IT REMEMBERED That on this ???..day of????????.2003
Before me, the undersigned, a notary public in and for the state of Oregon, Personally appeared the within named?????????????????.known to me to be the identical individual??described in and who executed the within instrument and acknowledged to me that ????executed the same freely and voluntarily
.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
My official seal the day and year last above written.
???????????????????????.
My Commission expires???????????????
LUKE 11:52 "Woe unto you, lawyers!"
LET THE CONSTITUTION SPEAK
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