|
John Henry; Doe, a free man Dated:
__________________
mailing location,
c/o 51 Doe Dr.
Carson, near postal code 89000
Nevada Republic
Declarant, Demandant
TO: officer,
124 town dr.
Vegas, Nevada 890
JUDICIAL NOTICE OF MY RIGHT TO TRAVEL
NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION
Know all men by these presents, that I, John Henry; Doe, a
free-man do travel upon the highways and roads of these United
States as a matter of asserted Common Law rights. That I assert
my full sovereignty as a free and natural man under the Common
Law of the Constitution of the united States of America, to wit:
ARGUMENT
If ever a judge understood the public's right to use the public
roads, it was Justice Tolman of the
Supreme Court of the State of Washington. Justice Tolman stated:
"Complete freedom of the highways is so old and well established
a blessing that we have
forgotten the days of the Robber Barons and toll roads, and yet,
under an act like this, arbitrarily administered, the highways
may be completely monopolized, if, through lack of interest, the
people submit, then they may look to see the most sacred of
their liberties taken from them one by one, by more or less
rapid encroachment."
Robertson vs. Department of Public Works, 180 Wash 133, 147.
The words of Justice Tolman ring most prophetically in the ears
of Citizens throughout the
country today as the use of the public roads has been
monopolized by the very entity which has
been empowered to stand guard over our freedoms, i.e., that of
state government.
RIGHTS
The "most sacred of liberties” of which Justice Tolman spoke was
personal liberty. The definition
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."
Bouvier'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 not be necessary to review early cases and legal
authority in order to reach a lawfully
correct theory dealing with this Right or "privilege." We will
attempt to reach a sound conclusion
as to what is a "Right to use the road" and what is a "privilege
to use the road". Once
reaching this determination, we shall then apply those positions
to modern case decision.
"Where rights secured by the Constitution are involved, there
can be no rule making or legislation which would abrogate them."
Miranda vs. Arizona, 384 US 436, 491
and ...
"The claim and exercise of a constitutional Right cannot be
converted into a crime."
Miller vs. U.S., 230 F. 486, 489
and ...
"There can be no sanction or penalty imposed upon one because of
this exercise
of constitutional Rights."
Snerer vs. Cullen, 481 F. 946
Streets and highways are established and maintained for the
purpose of travel and transportation
by the public. Such travel may be for business or pleasure.
"The use of the highways for the purpose of travel and
transportation is not a mere privilege, but a common and
fundamental Right of which the public and the individual cannot
be rightfully deprived."
Chicago Motor Coach vs. Chicago, 169 NE 22;
Ligare vs. Chicago, 28 NE 934;
Boon vs. Clark, 214 SSW 607;
25 Am.Jur. (1st) Highways Sect.163
and ...
"The Right of the Citizen to travel upon the public highways and
to transport his property
thereon, either by horse drawn carriage or by automobile, is not
a mere privilege which a city can prohibit or permit at will,
but a common Right which he has under the right to life,
liberty, and the pursuit of happiness."
Thompson vs. Smith, 154 SE 579
So we can see that a Citizen has a Right to travel upon the
public highways by automobile and the
Citizen cannot be rightfully deprived of his Liberty. So where
does the misconception that the use
of the public road is always and only a privilege come from?
"... For while a Citizen has the Right to travel upon the public
highways and to transport his property thereon, that Right does
not extend to the use of the highways, either in whole or in
part, as a place for private gain. For the latter purpose, no
person has a vested right to use the highways of the state, but
is a privilege or a license which the legislature may grant or
withhold at its discretion."
State vs. Johnson, 243 P. 1073;
Cummins vs. Homes, 155 P. 171;
Packard vs. Banton, 44 S.Ct. 256; Hadfield vs. Lundin, 98 Wash
516
Here the court held that a Citizen has the Right to travel upon
the public highways, but that he did
not have the right to conduct business upon the highways. On
this point of law all authorities are
unanimous.
"Heretofore the court has held, and we think correctly, that
while a Citizen has the Right to travel upon the public highways
and to transport his property thereon, that Right does not
extend to the use of the highways, either in whole or in part,
as a place of business for private gain."
Willis vs. Buck, 263 P. l 982;
Barney vs. Board of Railroad Commissioners, 17 P.2d 82
and ...
"The right of the citizen to travel upon the highway and to
transport his property thereon, in the ordinary course of life
and business, differs radically and obviously from that of one
who makes the highway his place of business for private gain in
the running of a stagecoach or omnibus."
State vs. City of Spokane, 186 P. 864
What is this Right of the Citizen which differs so "radically
and obviously" from one who uses the
highway as a place of business? Who better to enlighten us than
Justice Tolman of the Supreme
Court of Washington State? In State vs. City of Spokane, supra,
the Court also noted a very
"radical and obvious" difference, but went on to explain just
what the difference is:
"The former is the usual and ordinary right of the Citizen, a
common right to all, while the latter is special, unusual, and
extraordinary."
and ...
"This distinction, elementary and fundamental in character, is
recognized by all the authorities."
State vs. City of Spokane, supra.
This position does not hang precariously upon only a few cases,
but has been proclaimed by an
impressive array of cases ranging from the state courts to the
federal courts.
"the right of the Citizen to travel upon the highway and to
transport his property thereon in the ordinary course of life
and business, differs radically and obviously from that of one
who makes the highway his place of business and uses it for
private gain in the running of a stagecoach or omnibus. The
former is the usual and ordinary right of the Citizen, a right
common to all, while the latter is special, unusual, and
extraordinary."
Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781
and ...
"The right of the Citizen to travel upon the public highways and
to transport his property thereon, in the ordinary course of
life and business, is a common right which he has under the
right to enjoy life and liberty, to acquire and possess
property, and to pursue happiness and safety. It includes the
right, in so doing, to use the ordinary and usual conveyances of
the day, and under the existing modes of travel, includes the
right to drive a horse drawn carriage or wagon thereon or to
operate an automobile thereon, for the usual and ordinary
purpose of life and business."
Thompson vs. Smith, supra.;
Teche Lines vs. Danforth, Miss., 12 S.2d 784
There is no dissent among various authorities as to this
position. (See Am.Jur. [1st] Const. Law,
329 and corresponding Am. Jur. [2nd].)
"Personal liberty -- or the right to enjoyment of life and
liberty -- is one of the fundamental or natural rights, which
has been protected by its inclusion as a guarantee in the
various
constitutions, which is not derived from nor dependent on the
U.S. Constitution. ... It is one of the most sacred and valuable
rights [remember the words of Justice Tolman, supra.] as sacred
as the right to private property ... and is regarded as
inalienable."
16 C.J.S. Const. Law, Sect.202, Pg. 987
As we can see, the distinction between a "Right" to use the
public roads and a "privilege" to use
the public roads is drawn upon the line of "using the road as a
place of business" and the various
state courts have held so. But what have the U.S. Courts held on
this point?
"First, it is well established law that the highways of the
state are public property, and their
primary and preferred use is for private purposes, and that
their use for purposes of gain is
special and extraordinary which, generally at least, the
legislature may prohibit or condition as it
sees fit."
Stephenson vs. Rinford, 287 US 251;
Pachard vs Banton, 264 US 140, and cases cited;
Frost and F. Trucking Co. vs. Railroad Commission, 271 US 592;
Railroad commission vs. Inter-City Forwarding Co., 57 SW.2d 290;
Parlett Cooperative vs. Tidewater Lines, 164 A. 313
So what is a privilege to use the roads? By now it should be
apparent even to the "learned" that
an attempt to use the road as a place of business is a
privilege. The distinction must be drawn
between ...
1. Travelling upon and transporting one's property upon the
public roads, which is our
Right; and ...
2. Using the public roads as a place of business or a main
instrumentality of business,
which is a privilege.
"[The roads] ... are constructed and maintained at public
expense, and no person therefore, can insist that he has, or may
acquire, a vested right to their use in carrying on a commercial
business."
Ex Parte Sterling, 53 SW.2d 294;
Barney vs. Railroad Commissioners, 17 P.2d 82;
Stephenson vs. Binford, supra.
"When the public highways are made the place of business the
state has a right to regulate their use in the interest of
safety and convenience of the public as well as the preservation
of the highways."
Thompson vs. Smith, supra.
"[The state's] right to regulate such use is based upon the
nature of the business and the use of the highways in connection
therewith."
Ibid.
"We know of no inherent right in one to use the highways for
commercial purposes. The highways are primarily for the use of
the public, and in the interest of the public, the state may
prohibit or regulate ... the use of the highways for gain."
Robertson vs. Dept. of Public Works, supra.
There should be considerable authority on a subject as important
a this deprivation of the liberty
of the individual "using the roads in the ordinary course of
life and business." However, it should
be noted that extensive research has not turned up one case or
authority acknowledging the
state's power to convert the individual's right to travel upon
the public roads into a "privilege."
Therefore, it is concluded that the Citizen does have a "Right"
to travel and transport his
property upon the public highways and roads and the exercise of
this Right is not a "privilege."
DEFINITIONS
In order to understand the correct application of the statute in
question, we must first define the
terms used in connection with this point of law. As will be
shown, many terms used today do not,
in their legal context, mean what we assume they mean, thus
resulting in the misapplication of
statutes in the instant case.
AUTOMOBILE AND MOTOR VEHICLE
There is a clear distinction between an automobile and a motor
vehicle. An automobile has been
defined as:
"The word `automobile' connotes a pleasure vehicle designed for
the transportation of persons on highways."
American Mutual Liability Ins. Co., vs. Chaput, 60 A.2d 118,
120; 95 NH 200
While the distinction is made clear between the two as the
courts have stated:
"A motor vehicle or automobile for hire is a motor vehicle,
other than an automobile stage, used for the transportation of
persons for which remuneration is received."
International Motor Transit Co. vs. Seattle, 251 P. 120
The term `motor vehicle' is different and broader than the word
`automobile.'"
City of Dayton vs. DeBrosse, 23 NE.2d 647, 650; 62 Ohio App. 232
The distinction is made very clear in Title 18 USC 31:
"Motor vehicle" means every description or other contrivance
propelled or drawn by mechanical power and used for commercial
purposes on the highways in the transportation of passengers, or
passengers and property.
"Used for commercial purposes" means the carriage of persons or
property for any fare, fee, rate, charge or other
considerations, or directly or indirectly in connection with any
business, or other undertaking intended for profit.
Clearly, an automobile is private property in use for private
purposes, while a motor vehicle is a
machine which may be used upon the highways for trade, commerce,
or hire.
TRAVEL
The term "travel" is a significant term and is defined as:
"The term `travel' and `traveler' are usually construed in their
broad and general sense ... so as to include all those who
rightfully use the highways viatically (when being reimbursed
for expenses) and who have occasion to pass over them for the
purpose of business, convenience, or pleasure."
25 Am.Jur. (1st) Highways, Sect.427, Pg. 717
"Traveler -- One who passes from place to place, whether for
pleasure, instruction, business, or health."
Locket vs. State, 47 Ala. 45;
Bovier's Law Dictionary, 1914 ed., Pg. 3309
"Travel -- To journey or to pass through or over; as a country
district, road, etc. To go from one place to another, whether on
foot, or horseback, or in any conveyance as a train, an
automobile, carriage, ship, or aircraft; Make a journey."
Century Dictionary, Pg. 2034
Therefore, the term "travel" or "traveler" refers to one who
uses a conveyance to go from one
place to another, and included all those who use the highways as
a matter of Right.
Notice that in all these definitions, the phrase "for hire"
never occurs. This term "travel" or
"traveler" implies, by definition, one who uses the road as a
means to move from one place to
another.
Therefore, one who uses the road in the ordinary course of life
and business for the purpose of
travel and transportation is a traveler.
DRIVER
The term "driver" in contradistinction to "traveler," is defined
as:
"Driver -- One employed in conducting a coach, carriage, wagon,
or other vehicle ..."
Bovier's Law Dictionary, 1914 ed., Pg. 940
Notice that this definition includes one who is "employed" in
conducting a vehicle. It should be
self-evident that this individual could not be "travelling" on a
journey, but is using the road as a
place of business.
OPERATOR
Today we assume that a "traveler" is a "driver," and a "driver"
is an "operator." However, this is
not the case.
"It will be observed from the language of the ordinance that a
distinction is to be drawn between the terms `operator' and
`driver'; the `operator' of the service car being the person who
is licensed to have the car on the streets in the business of
carrying passengers for hire; while the`driver' is the one who
actually drives the car. However, in the actual prosecution of
business, it was possible for the same person to be both
`operator' and `driver.'"
Newbill vs. Union Indemnity Co., 60 SE.2d 658
To further clarify the definition of an "operator" the court
observed that this was a vehicle "for
hire" and that it was in the business of carrying passengers.
This definition would seem to describe a person who is using the
road as a place of business, or
in other words, a person engaged in the "privilege" of using the
road for gain.
This definition, then, is a further clarification of the
distinction mentioned earlier, and therefore:
1. Travelling upon and transporting one's property upon the
public roads as a matter of
Right meets the definition of a traveler.
2. Using the road as a place of business as a matter of
privilege meets the definition of a
driver or an operator or both.
TRAFFIC
Having defined the terms "automobile," "motor vehicle,"
"traveler," "driver," and "operator," the
next term to define is "traffic":
"... Traffic thereon is to some extent destructive, therefore,
the prevention of unnecessary
duplication of auto transportation service will lengthen the
life of the highways or reduce the cost of maintenance, the
revenue derived by the state ... will also tend toward the
public welfare by producing at the expense of those operating
for private gain, some small part of the cost of repairing the
wear ..."
Northern Pacific R.R. Co. vs. Schoenfeldt, 213 P. 26
Note: In the above, Justice Tolman expounded upon the key of
raising revenue by taxing the
"privilege" to use the public roads "at the expense of those
operating for gain."
In this case, the word "traffic" is used in conjunction with the
unnecessary Auto Transportation
Service, or in other words, "vehicles for hire." The word
"traffic" is another word which is to be
strictly construed to the conducting of business.
"Traffic -- Commerce, trade, sale or exchange of merchandise,
bills, money, or the like. The passing of goods and commodities
from one person to another for an equivalent in goods or money
..."
Bovier's Law Dictionary, 1914 ed., Pg. 3307
Here again, notice that this definition refers to one
"conducting business." No mention is made
of one who is 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.
LICENSE
It seems only proper to define the word "license," as the
definition of this word will be extremely
important in understanding the statutes as they are properly
applied:
"The permission, by competent authority to do an act which
without permission, would be illegal, a trespass, or a tort."
People vs. Henderson, 218 NW.2d 2, 4
"Leave to do a thing which licensor could prevent."
Western Electric Co. vs. Pacent Reproducer Corp., 42 F.2d 116,
118
In order for these two definitions to apply in this case, the
state would have to take up the
position that the exercise of a Constitutional Right to use the
public roads in the ordinary course
of life and business is illegal, a trespass, or a tort, which
the state could then regulate or
prevent.
This position, however, would raise magnitudinous Constitutional
questions as this position
would be diametrically opposed to fundamental Constitutional
Law. (See "Conversion of a Right
to a Crime," infra.)
In the instant case, the proper definition of a "license" is:
"a permit, granted by an appropriate governmental body,
generally for consideration, to a
person, firm, or corporation, to pursue some occupation or to
carry on some business which is subject to regulation under the
police power."
Rosenblatt vs. California State Board of Pharmacy,158 P.2d 199,
203
This definition would fall more in line with the "privilege" of
carrying on business on the streets.
Most natural people tend to think that "licensing" is imposed by
the state for the purpose of raising
revenue, yet there may well be more subtle reasons contemplated;
for when one seeks permission
from someone to do something he invokes the jurisdiction of the
"licensor" which, in this case, is the state. In essence, the
licensee may well be seeking to be regulated by the "licensor."
"A license fee is a charge made primarily for regulation, with
the fee to cover costs and expenses of supervision or
regulation."
State vs. Jackson, 60 Wisc.2d 700; 211 NW.2d 480, 487
The fee is the price; the regulation or control of the licensee
is the real aim of the legislation.
Are these licenses really used to fund legitimate government, or
are they nothing more than a
subtle introduction of police power into every facet of our
lives? Have our "enforcement agencies"
been diverted from crime prevention, perhaps through no fault of
their own, instead now busying
themselves as they "check" our papers to see that all are
properly endorsed by the state?
How much longer will it be before we are forced to get a license
for our lawn mowers, or before
our wives will need a license for her "blender" or "mixer?" They
all have motors on them and the
state can always use the revenue.
POLICE POWER
The confusion of the police power with the power of taxation
usually arises in cases where the
police power has affixed a penalty to a certain act, or where it
requires licenses to be obtained
and a certain sum be paid for certain occupations. The power
used in the instant case cannot,
however, be the power of taxation since an attempt to levy a tax
upon a Right would be open to
Constitutional objection. (See "taxing power," infra.)
Each law relating to the use of police power must ask three
questions:
"1. Is there threatened danger?
"2. Does a regulation involve a Constitutional Right?
"3. Is this regulation reasonable?
People vs. Smith, 108 Am.St.Rep. 715;
Bovier's Law Dictionary, 1914 ed., under "Police Power"
When applying these three questions to the statute in question,
some very important issues
emerge.
First, "is there a threatened danger" in the individual using
his automobile on the public
highways, in the ordinary course of life and business? The
answer is No! There is nothing
inherently dangerous in the use of an automobile when it is
carefully managed. Their guidance,
speed, and noise are subject to a quick and easy control, under
a competent and considerate
manager, it is as harmless on the road as a horse and buggy.
It is the manner of managing the automobile, and that alone,
which threatens the safety of the
public. The ability to stop quickly and to respond quickly to
guidance would seem to make the
automobile one of the least dangerous conveyances. (See Yale Law
Journal, December, 1905.)
"The automobile is not inherently dangerous."
Cohens vs. Meadow, 89 SE 876;
Blair vs. Broadmore, 93 SE 532
To deprive all persons of the Right to use the road in the
ordinary course of life and business,
because one might, in the future, become dangerous, would be a
deprivation not only of the
Right to travel, but also the Right to due process. (See "Due
Process," infra.)
Next; does the regulation involve a Constitutional Right?
This question has already been addressed and answered in this
brief, and need not be reinforced
other than to remind this Court that this Citizen does have the
Right to travel upon the public
highway by automobile in the ordinary course of life and
business. It can therefore be concluded
that this regulation does involve a Constitutional Right.
The third question is the most important in this case. "Is this
regulation reasonable?"
The answer is No! It will be shown later in "Regulation,"
infra., that this licensing statute is
oppressive and could be effectively administered by less
oppressive means.
Although the Fourteenth Amendment does not interfere with the
proper exercise of the police
power, in accordance with the general principle that the power
must be exercised so as not to
invade unreasonably the rights guaranteed by the United States
Constitution, it is established
beyond question that every state power, including the police
power, is limited by the Fourteenth
Amendment (and others) and by the inhibitions there imposed.
Moreover, the ultimate test of the propriety of police power
regulations must be found in the
Fourteenth Amendment, since it operates to limit the field of
the police power to the extent of
preventing the enforcement of statutes in denial of Rights that
the Amendment protects. (See
Parks vs. State, 64 NE 682.)
"With regard particularly to the U.S. Constitution, it is
elementary that a Right secured or
protected by that document cannot be overthrown or impaired by
any state police authority."
Donnolly vs. Union Sewer Pipe Co., 184 US 540;
Lafarier vs. Grand Trunk R.R. Co., 24 A. 848;
O'Neil vs. Providence Amusement Co., 108 A. 887
"The police power of the state must be exercised in
subordination to the provisions of the U.S. Constitution."
Bacahanan vs. Wanley, 245 US 60;
Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294
US 613
"It is well settled that the Constitutional Rights protected
from invasion by the police power, include Rights safeguarded
both by express and implied prohibitions in the Constitutions."
Tiche vs. Osborne, 131 A. 60
"As a rule, fundamental limitations of regulations under the
police power are found in the spirit of the Constitutions, not
in the letter, although they are just as efficient as if
expressed in the clearest language."
Mehlos vs. Milwaukee, 146 NW 882
As it applies in the instant case, the language of the Fifth
Amendment is clear:
"No person shall be ... deprived of Life, Liberty, or Property
without due process of law."
As has been shown, the courts at all levels have firmly
established an absolute Right to travel.
In the instant case, the state, by applying commercial statutes
to all entities, natural and
artificial persons alike, has deprived this free and natural
person of the Right of Liberty, without
cause and without due process of law.
DUE PROCESS
"The essential elements of due process of law are ... Notice and
The Opportunity to defend."
Simon vs. Craft, 182 US 427
Yet, not one individual has been given notice of the loss of
his/her Right, let alone before signing
the license (contract). Nor was the Citizen given any
opportunity to defend against the loss of
his/her right to travel, by automobile, on the highways, in the
ordinary course of life and business.
This amounts to an arbitrary deprivation of Liberty.
"There should be no arbitrary deprivation of Life or Liberty
..."
Barbour vs. Connolly, 113 US 27, 31;
Yick Wo vs. Hopkins, 118 US 356
and ...
"The right to travel is part of the Liberty of which a citizen
cannot deprived without due process
of law under the Fifth Amendment. This Right was emerging as
early as the Magna Carta."
Kent vs. Dulles, 357 US 116 (1958)
The focal point of this question of police power and due process
must balance upon the point of
making the public highways a safe place for the public to
travel. If a man travels in a manner that
creates actual damage, an action would lie (civilly) for
recovery of damages. The state could then
also proceed against the individual to deprive him of his Right
to use the public highways, for
cause. This process would fulfill the due process requirements
of the Fifth Amendment while at
the same time insuring that Rights guaranteed by the U.S.
Constitution and the state constitutions
would be protected.
But unless or until harm or damage (a crime) is committed, there
is no cause for interference in
the private affairs or actions of a Citizen.
One of the most famous and perhaps the most quoted definitions
of due process of law, is that of
Daniel Webster in his Dartmouth College Case (4 Wheat 518), in
which he declared that by due
process is meant:
"a law which hears before it condemns, which proceeds upon
inquiry, and renders judgment only after trial."
See also State vs. Strasburg, 110 P. 1020;
Dennis vs. Moses, 52 P. 333
Somewhat similar is the statement that is a rule as old as the
law that:
"no one shall be personally bound (restricted) until he has had
his day incourt,"
by which is meant, until he has been duly cited to appear and
has been afforded an opportunity to
be heard. Judgment without such citation and opportunity lacks
all the attributes of a judicial
determination; it is judicial usurpation and it is oppressive
and can never be upheld where it is
fairly administered. (12 Am.Jur. [1st] Const. Law, Sect. 573,
Pg. 269)
Note: This sounds like the process used to deprive one of the
"privilege" of operating a motor vehicle "for hire." It should
be kept in mind, however, that we are discussing the arbitrary
deprivation of the Right to use the road that all citizens have
"in common."
The futility of the state's position can be most easily observed
in the 1959 Washington Attorney
General's opinion on a similar issue:
"The distinction between the Right of the Citizen to use the
public highways for private, rather than commercial purposes is
recognized ..."
and ...
"Under its power to regulate private uses of our highways, our
legislature has required that motor vehicle operators be
licensed (I.C. 49-307). Undoubtedly, the primary purpose of this
requirement is to insure, as far as possible, that all motor
vehicle operators will be competent and qualified, thereby
reducing the potential hazard or risk of harm, to which other
users of the highways might otherwise be subject. But once
having complied with this regulatory provision, by obtaining the
required license, a motorist enjoys the privilege of traveling
freely upon the highways..."
Washington A.G.O. 59-60 No. 88, Pg. 11
This alarming opinion appears to be saying that every person
using an automobile as a matter of
Right, must give up the Right and convert the Right into a
privilege. This is accomplished under
the guise of regulation. This statement is indicative of the
insensitivity, even the ignorance, of
the government to the limits placed upon governments by and
through the several constitutions.
This legal theory may have been able to stand in 1959; however,
as of 1966, in the United States
Supreme Court decision in Miranda, even this weak defense of the
state's actions must fall.
"Where rights secured by the Constitution are involved, there
can be no rule making or legislation which would abrogate them."
Miranda vs. Arizona, 384 US 436, 491
Thus the legislature does not have the power to abrogate the
Citizen's Right to travel upon the
public roads, by passing legislation forcing the citizen to
waive his Right and convert that Right
into a privilege. Furthermore, we have previously established
that this "privilege" has been
defined as applying only to those who are "conducting business
in the streets" or "operating
for-hire vehicles."
The legislature has attempted (by legislative fiat) to deprive
the Citizen of his Right to use the
roads in the ordinary course of life and business, without
affording the Citizen the safeguard of
"due process of law." This has been accomplished under supposed
powers of regulation.
REGULATION
"In addition to the requirement that regulations governing the
use of the highways must not be violative of constitutional
guarantees, the prime essentials of such regulation are
reasonableness, impartiality, and definiteness or certainty."
25 Am.Jur. (1st) Highways, Sect. 260
and ...
"Moreover, a distinction must be observed between the regulation
of an activity which may be engaged in as a matter of right and
one carried on by government sufferance of permission."
Davis vs. Massachusetts, 167 US 43;
Pachard vs. Banton, supra.
One can say for certain that these regulations are impartial
since they are being applied to all,
even though they are clearly beyond the limits of the
legislative powers. However, we must
consider whether such regulations are reasonable and non-violative
of constitutional guarantees.
First, let us consider the reasonableness of this statute
requiring all persons to be licensed
(presuming that we are applying this statute to all persons
using the public roads). In determining
the reasonableness of the statute we need only ask two
questions:
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
and ...
"We find it intolerable that one Constitutional Right should
have to be surrendered in order to assert another."
Simons vs. United States, 390 US 389
Since the state requires that one give up Rights in order to
exercise the privilege of driving, the
regulation cannot stand under the police power, due process, or
regulation, but must be exposed
as a statute which is oppressive and one which has been
misapplied to deprive the Citizen of
Rights guaranteed by the United States Constitution and the
state constitutions.
TAXING POWER
"Any claim that this statute is a taxing statute would be
immediately open to severe
Constitutional objections. If it could be said that the state
had the power to tax a Right, this
would enable the state to destroy Rights guaranteed by the
constitution through the use of
oppressive taxation. The question herein, is one of the state
taxing the Right to travel by the ordinary modes of the day, and
whether this is a legislative object of the state taxation.
The views advanced herein are neither novel nor unsupported by
authority. The question of taxing power of the states has been
repeatedly considered by the Supreme Court. The Right of the
state to impede or embarrass the Constitutional operation of the
U.S. Government or the Rights which the Citizen holds under it,
has been uniformly denied."
McCulloch vs. Maryland, 4 Wheat 316
The power to tax is the power to destroy, and if the state is
given the power to destroy Rights
through taxation, the framers of the Constitution wrote that
document in vain.
"... It may be said that a tax of one dollar for passing through
the state cannot sensibly affect any function of government or
deprive a Citizen of any valuable Right. But if a state can tax
... a passenger of one dollar, it can tax him a thousand
dollars."
Crandall vs. Nevada, 6 Wall 35, 46
and ...
"If the Right of passing through a state by a Citizen of the
United States is one guaranteed by the Constitution, it must be
sacred from state taxation."
Ibid., Pg. 47
Therefore, the Right of travel must be kept sacred from all
forms of state taxation and if this
argument is used by the state as a defense of the enforcement of
this statute, then this argument
also must fail.
CONVERSION OF A RIGHT TO A CRIME
As previously demonstrated, the Citizen has the Right to travel
and to transport his property
upon the public highways in the ordinary course of life and
business. However, if one exercises
this Right to travel (without first giving up the Right and
converting that Right into a privilege)
the Citizen is by statute, guilty of a crime. This amounts to
converting the exercise of a
Constitutional Right into a crime.
Recall the Miller vs. U.S. and Snerer vs. Cullen quotes from Pg.
4, and:
"The state cannot diminish Rights of the people."
Hurtado vs. California, 110 US 516
and ...
"Where rights secured by the Constitution are involved, there
can be no rule making or legislation which would abrogate them."
Miranda, supra.
Indeed, the very purpose for creating the state under the
limitations of the constitution was to
protect the rights of the people from intrusion, particularly by
the forces of government.
So we can see that any attempt by the legislature to make the
act of using the public highways as
a matter of Right into a crime, is void upon its face.
Any person who claims his Right to travel upon the highways, and
so exercises that Right, cannot
be tried for a crime of doing so. And yet, this Freeman stands
before this court today to answer
charges for the "crime" of exercising his Right to Liberty.
As we have already shown, the term "drive" can only apply to
those who are employed in the
business of transportation for hire. It has been shown that
freedom includes the Citizen’s Right
to use the public highways in the ordinary course of life and
business without license or regulation
by the police powers of the state.
CONCLUSION
It is the duty of the court to recognize the substance of things
and not the mere form.
"The courts are not bound by mere form, nor are they to be
misled by mere pretenses. They are at liberty -- indeed they are
under a solemn duty -- to look at the substance of things,
whenever they enter upon the inquiry whether the legislature has
transcended the limits of its authority. If, therefore, a
statute purported to have been enacted to protect ... the public
safety, has no real or substantial relation to those objects or
is a palpable invasion of Rights secured by the fundamental law,
it is the duty of the courts to so adjudge, and thereby give
effect to the Constitution."
Mulger vs. Kansas, 123 US 623, 661
and ...
"It is the duty of the courts to be watchful for the
Constitutional rights of the citizen and against any stealthy
encroachments thereon."
Boyd vs. United States, 116 US 616
The courts are "duty bound" to recognize and stop the "stealthy
encroachments" which have been
made upon the Citizen's Right to travel and to use the roads to
transport his property in the
"ordinary course of life and business." (Hadfield, supra.)
Further, the court must recognize that the Right to travel is
part of the Liberty of which a Citizen
cannot be deprived without specific cause and without the "due
process of law" guaranteed in the
Fifth Amendment. (Kent, supra.)
The history of this "invasion" of the Citizen's Right to use the
public highways shows clearly that
the legislature simply found a heretofore untapped source of
revenue, got greedy, and attempted
to enforce a statute in an unconstitutional manner upon those
free and natural individuals who
have a Right to travel upon the highways. This was not attempted
in an outright action, but in a
slow, meticulous, calculated encroachment upon the Citizen's
Right to travel.
This position must be accepted unless the prosecutor can show
his authority for the position that
the "use of the road in the ordinary course of life and
business" is a privilege.
To rule in any other manner, without clear authority for an
adverse ruling, will infringe upon
fundamental and basic concepts of Constitutional law. This
position, that a Right cannot be
regulated under any guise, must be accepted without concern for
the monetary loss of the state.
"Disobedience or evasion of a Constitutional Mandate cannot be
tolerated, even though such disobedience may, at least
temporarily, promote in some respects the best interests of the
public."
Slote vs. Examination, 112 ALR 660
and ...
"Economic necessity cannot justify a disregard of Constitutional
guarantee."
Riley vs. Carter, 79 ALR 1018;
16 Am.Jur. (2nd), Const. Law, Sect. 81
and ...
"Constitutional Rights cannot be denied simply because of
hostility to their assertions and
exercise; vindication of conceded Constitutional Rights cannot
be made dependent upon any theory that it is less expensive to
deny them than to afford them."
Watson vs. Memphis, 375 US 526
Therefore, the Court's decision in the instant case must be made
without the issue of cost to the
state being taken into consideration, as that issue is
irrelevant. The state cannot lose money
that it never had a right to demand from the "Sovereign People."
Finally, we come to the issue of "public policy." It could be
argued that the "licensing scheme" of
all persons is a matter of "public policy." However, if this
argument is used, it too must fail, as:
"No public policy of a state can be allowed to override the
positive guarantees of the U.S.
Constitution."
16 Am.Jur. (2nd), Const. Law, Sect. 70
So even "public policy" cannot abrogate this Citizen's Right to
travel and to use the public
highways in the ordinary course of life and business.
Therefore, it must be concluded that:
"We have repeatedly held that the legislature may regulate the
use of the highways for carrying on business for private gain
and that such regulation is a valid exercise of the police
power."
Northern Pacific R.R. Co., supra.
and ...
"The act in question is a valid regulation, and as such is
binding upon all who use the highway for the purpose of private
gain."
Ibid.
In addition:
Since no notice is given to people applying for driver's (or
other) licenses that they have a perfect right to use the roads
without any permission, and that they surrender valuable rights
by taking on the regulation system of licensure, the state has
committed a massive construction fraud. This occurs when any
person is told that they must have a license in order to use the
public roads and highways.
The license, being a legal contract under which the state is
empowered with policing powers, is only valid when the licensee
takes on the burdens of the contract and bargains away his or
her rights knowingly, intentionally, and voluntarily.
Few know that the driver's license is a contract without which
the police are powerless to regulate the people's actions or
activities.
Few (if any) licensees intentionally surrender valuable rights.
They are told that they must have the license. As we have seen,
this is not the case.
No one in their right mind voluntarily surrenders complete
liberty and accepts in its place a set of regulations.
"The people never give up their liberties but under some
delusion.”
Edmund Burke, (1784)
Title 28 U.S.C. 1746 (1)
____________________________
John Henry; Doe, a free man
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