BRIEF IN SUPPORT OF NOTICE
FOR DISMISSAL FOR LACK OF JURISDICTION
Friday, April 21,
2023
7:26
PM
Case No.
CR3230139
Lazaro
Guevara
NOW, comes the Accused,
appearing specially and not generally or voluntarily, but under threat of arrest if he failed to do so, with this "BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION," stating as
follows:
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 have 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 horse drawn 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 still
…
"Personal liberty -- consists
of the power of locomotion, of changing situations, of removing one's person to whatever place one's inclination may direct, without imprisonment or restraint unless by due process of
law."
Bovier's Law Dictionary, 1914
ed., Black's Law Dictionary, 5th ed.;
Blackstone's Commentary 134;
Hare, Constitution__Pg. 777
Justice Tolman was concerned
about the State prohibiting the Citizen from the "most sacred of his liberties," the Right of movement, the Right of moving one's self from place to place without threat of imprisonment, the Right to
use the public roads in the ordinary course of life. When the State allows the formation of a corporation it may control its creation by establishing guidelines (statutes) for its operation
(charters). Corporations who use the roads in the course of business do not use the roads in the ordinary course of life. There is a difference between a corporation and an individual. The United
States Supreme Court has stated:
"...We are of the opinion that
there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for examination on the suit of the
State. The individual may stand upon his Constitutional Rights as a Citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the
State or to his neighbors to divulge his business, or to open his doors to investigation, so far as it may tend to incriminate him. He owes no such duty to the State, since he receives nothing
therefrom, beyond the protection of his life, liberty, and property. His Rights are such as the law of the land long antecedent to the organization of the state, and can only be taken from him by due
process of law, and in accordance with the Constitution. Among his Rights are the refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under
warrant of law. He owes nothing to the public so long as he does not trespass upon their rights.
"Upon the other hand, the
corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of
the state and the limitations of its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to
investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that the State, having chartered a corporation to make use of certain franchises,
could not in exercise of its sovereignty inquire how those franchises had been employed, and whether they had been abused, and demand the production of corporate books and papers for that
purpose."
Hale vs. Hinkel, 201 US 43,
74-75
Corporations engaged in
mercantile equity fall under the purview of the State's admiralty jurisdiction, and the public at large must be protected from their activities, as they (the corporations) are engaged in business for
profit.
"...Based upon the fundamental
ground that the sovereign state has the plenary control of the streets and highways in the exercise of its police power (see police power, infra.), may absolutely prohibit the use of the streets as a
place for the prosecution of a private business for gain. They all recognize the fundamental distinction between the ordinary Right of the Citizen to use the streets in the usual way and the use of
the streets as a place of business or a main instrumentality of business for private gain. The former is a common Right, the latter is an extraordinary use. As to the former, the legislative power is
confined to regulation, as to the latter, it is plenary and extends even to absolute prohibition. Since the use of the streets by a common carrier in the prosecution of its business as such is not a
right but a mere license of privilege."
Hadfield vs. Lundin, 98 Wash
516
It will be necessary to review
early cases and legal authority in order to reach a lawfully correct theory dealing with this Right or "privilege." We will attempt to reach a sound conclusion as to what is a "Right to use the road"
and what is a "privilege to use the road". Once reaching this determination, we shall then apply those positions to modern case decision.
"Where rights secured by the
Constitution are involved, there can be no rule making or legislation which would abrogate them."
Miranda vs. Arizona, 384 US
436, 491
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 (great, significant, imposing) Constitutional questions as this position would be diametrically opposed to fundamental Constitutional Law. (See "Conversion of a Right to a Crime,"
infra.)
In the instant case, the proper
definition of a "license" is:
"a permit, granted by an
appropriate governmental body, generally for consideration, to a person, firm, or corporation, to pursue some occupation or to carry on some business which is subject to regulation under the police
power."
Rosenblatt vs. California State
Board of Pharmacy, 158 P.2d 199, 203
This definition would fall more
in line with the "privilege" of carrying on business on the streets.
Most people tend to think that
"licensing" is imposed by the state for the purpose of raising revenue, yet there may well be more subtle reasons contemplated; for when one seeks permission from someone to do something he invokes
the jurisdiction of the "licensor" which, in this case, is the state. In essence, the licensee may well be seeking to be regulated by the "licensor."
"A license fee is a charge made
primarily for regulation, with the fee to cover costs and expenses of supervision or regulation."
State vs. Jackson, 60 Wisc.2d
700; 211 NW.2d 480, 487
The fee is the price; the
regulation or control of the licensee is the real aim of the legislation.
Are these licenses really used
to fund legitimate government, or are they nothing more than a subtle introduction of police power into every facet of our lives? Have our "enforcement agencies" been diverted from crime prevention,
perhaps through no fault of their own, instead now busying themselves as they "check" our papers to see that all are properly endorsed by the state?
How much longer will it be
before we are forced to get a license for our lawn mowers, or before our kitchens will need a license for "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."
Connolly vs. Union Sewer Pipe
Co., 184 US 540;
Lafarier vs. Grand Trunk R.R.
Co., 24 A. 848;
O'Neil vs. Providence Amusement
Co., 108 A. 887
"The police power of the state
must be exercised in subordination to the provisions of the U.S. Constitution."
Bacahanan vs. Wanley, 245 US
60;
Panhandle Eastern Pipeline Co.
vs. State Highway Commission, 294 US 613
"It is well settled that the
Constitutional Rights protected from invasion by the police power, include Rights safeguarded both by express and implied prohibitions in the Constitutions."
Tiche vs. Osborne, 131 A.
60
"As a rule, fundamental
limitations of regulations under the police power are found in the spirit of the Constitutions, not in the letter, although they are just as efficient as if expressed in the clearest
language."
Mehlos vs. Milwaukee, 146 NW
882
As it applies in the instant
case, the language of the Fifth Amendment is clear:
"No person shall be ...
deprived of Life, Liberty, or Property without due process of law."
As has been shown, the courts
at all levels have firmly established an absolute Right to travel.
In the instant case, the state,
by applying commercial statutes to all entities, natural and artificial persons alike, has deprived this free and natural person of the Right of Liberty, without cause and without due process of
law.
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, 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 travelling freely upon the highways
..."
Washington A.G.O. 59-60 No. 88,
Pg. 11
This alarming opinion appears
to be saying that every person using an automobile as a matter of Right, must give up the Right and convert the Right into a privilege. This is accomplished under the guise of regulation. This
statement is indicative of the insensitivity, even the ignorance, of the government to the limits placed upon governments by and through the several
constitutions.
This legal theory may have been
able to stand in 1959; however, as of 1966, in the United States Supreme Court decision in Miranda, even this weak defense of the state's actions must fall.
"Where rights secured by the
Constitution are involved, there can be no rule making or legislation which would abrogate them."
Miranda vs. Arizona, 384 US
436, 491
Thus the legislature does not
have the power to abrogate the Citizen's Right to travel upon the public roads, by passing legislation forcing the citizen to waive his Right and convert that Right into a privilege. Furthermore, we
have previously established that this "privilege" has been defined as applying only to those who are "conducting business in the streets" or "operating for-hire
vehicles."
The legislature has attempted
(by legislative fiat) to deprive the Citizen of his Right to use the roads in the ordinary course of life and business, without affording the Citizen the safeguard of "due process of law." This has
been accomplished under supposed powers of regulation.
REGULATION
"In addition to the requirement
that regulations governing the use of the highways must not be violative (violating or tending to violate or offend against) 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:
1. Does the statute accomplish
its stated goal?
The answer is
No!
The attempted explanation for
this regulation "to insure the safety of the public by insuring, as much as possible, that all are competent and qualified."
However, one can keep his
license without retesting, from the time he/she is first licensed until the day he/she dies, without regard to the competency of the person, by merely renewing said license before it expires. It is
therefore possible to completely skirt the goal of this attempted regulation, thus proving that this regulation does not accomplish its goal.
Furthermore, by testing and
licensing, the state gives the appearance of underwriting the competence of the licensees, and could therefore be held liable for failures, accidents, etc. caused by
licensees.
2. Is the statute
reasonable?
The answer is
No!
This statute cannot be
determined to be reasonable since it requires to the Citizen to give up his or her natural Right to travel unrestricted in order to accept the privilege. The purported goal of this statute could be
met by much less oppressive regulations, i.e., competency tests and certificates of competency before using an automobile upon the public roads. (This is exactly the situation in the aviation
sector.)
But isn't this what we have
now?
The answer is No! The
real purpose of this license is much more insidious. When one signs the license, he/she gives up his/her Constitutional Right to travel in order to accept and exercise a privilege. After signing the
license, a quasi-contract, the Citizen has to give the state his/her consent to be prosecuted for constructive crimes and quasi-criminal actions where there is no harm done and no damaged
property.
These prosecutions take place
without affording the Citizen of their Constitutional Rights and guarantees such a the Right to a trial by jury of twelve persons and the Right to counsel, as well as the normal safeguards such as
proof of intent and a corpus dilecti and a grand jury indictment. These unconstitutional prosecutions take place because the Citizen is exercising a privilege and has given his/her "implied consent"
to legislative enactments designed to control interstate commerce, a regulatable enterprise under the police power of the state.
We must now conclude that the
Citizen is forced to give up Constitutional guarantees of "Right" in order to exercise his state "privilege" to travel upon the public highways in the ordinary course of life and
business.
SURRENDER OF
RIGHTS
A Citizen cannot be forced to
give up his/her Rights in the name of regulation.
"... the only limitations found
restricting the right of the state to condition the use of the public highways as a means of vehicular transportation for compensation are (1) that the state must not exact of those it permits to use
the highways for hauling for gain that they surrender any of their inherent U.S. Constitutional Rights as a condition precedent to obtaining permission for such use
..."
Riley vs. Laeson, 142 So.
619;
Stephenson vs. Binford,
supra.
If one cannot be placed in a
position of being forced to surrender Rights in order to exercise a privilege, how much more must this maxim of law, then, apply when one is simply exercising (putting into use) a
Right?
"To be that statute which would
deprive a Citizen of the rights of person or property, without a regular trial, according to the course and usage of the common law, would not be the law of the
land."
Hoke vs. Henderson, 15 NC
15
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. 5, 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
Is an automobile always a
vehicle (or motor vehicle)? NO.
This is a question of fact that
turns on the use to which the automobile in question is put (i.e., either personal or commercial). While the presumption of an automobile being a vehicle (or motor vehicle) is created by the owner of
said automobile registering same with the state as a vehicle, this presumption may be over come by an affirmative defense to the allegation of the automobile being a vehicle, baring any evidence to
the contrary indicating commercial use. 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 relies on the citizen to be misinformed or intimidated by the courts to deprive them of this right. The
fact that Mr. Guerava was not "operating" a "motor vehicle" as defined, the fact that Mr. Guevara was not a "driver" nor was he "driving" as defined, the fact that vehicle registration is literally
paid to a Tax collector for the state and that if you do not pay you will be subject to police action is deplorable and unconstitutional. It is our hope that the court will come to the same
conclusion and grant a dismissal.
Thank you for your time and
consideration in this matter.
Brandon
White