Driver Licensing vs. the Right to Travel

[Author UnKnown]
source: U.S.A. The Republic


The following argument has been used in at least threestates (Pennsylvania, Ohio, andWestVirginia) as a legalbrief to support a demand for dismissal of charges of "drivingwithout alicense." It is the argument that was the reason for the charges to be dropped, or for a"win" incourt against the argument that freepeople can have their right to travel regulated by their servants.

The forgotten legal maxim is that freepeople have a right to travel on the roads which are provided by their servants for that purpose, using ordinary transportation of the day. Licensing cannot be required of freepeople, because taking on the restrictions of a license requires the surrender of aright. The driver'slicense can be required of people who use the highways for trade, commerce, orhire; thatis, if they earn their living on the road, and if they use extraordinary machines on the roads. If you are not using the highways for profit, you cannot be required to have a driver'slicense.


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 asfollows:


If ever a judge understood the public'sright to use the publicroads, it was JusticeTolman of the SupremeCourt of the StateofWashington. JusticeTolmanstated:

"Complete freedom of the highways is so old and well established a blessing that we have forgotten the days of the RobberBarons and tollroads, andyet, 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 JusticeTolman 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 stategovernment.


The "most sacred of liberties" of which JusticeTolman spoke was personal liberty. The definition of personalliberty is:

"Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or naturalRights, 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 valuableRights, assacred as the Right to privateproperty... and is regarded asinalienable."

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 publichighways and to transport his property thereon, by horsedrawncarriage, wagon, orautomobile, is not a mere privilege which may bepermitted orprohibited at will, but the commonRight which he has under his Righttolife, liberty, and the pursuit of happiness. Under this Constitutionalguarantee one may, therefore, under normal conditions, travel at his inclination along the publichighways or in publicplaces, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another'sRights, he will be protected, not only in his person, but in his safeconduct."

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'sperson to whatever place one'sinclination may direct, without imprisonment or restraint unless by dueprocess oflaw."

Bovier's Law Dictionary, 1914 ed., Black's Law Dictionary, 5th ed.;
Blackstone's Commentary 134; Hare, Constitution__Pg. 777

JusticeTolman was concerned about the State prohibiting the Citizen from the "mostsacred of hisliberties," the Right of movement, the Right of moving one'sself from place to place without threat of imprisonment, the Right to use the publicroads 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 oflife. There is a difference between a corporation and an individual. The UnitedStates SupremeCourt hasstated:

"...We are of the opinion that there is a clear distinction in this particular between an individual and acorporation, and that the latter has noright to refuse to submit its books and papers for examination on the suit of the State. The individual may stand upon his ConstitutionalRights as aCitizen. He is entitled to carry on his privatebusiness 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 hislife, liberty, andproperty. HisRights are such as the law of the land long antecedent to the organization of the state, and can only be taken from him by dueprocess oflaw, 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 warrantoflaw. 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 specialprivileges andfranchises, 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 reservedright 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 corporatebooks 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'sadmiralty jurisdiction, and the public at large must be protected from their activities, as they (thecorporations) are engaged in business forprofit.

"...Based upon the fundamental ground that the sovereignstate has the plenary control of the streets and highways in the exercise of its policepower (seepolicepower,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 ordinaryRight 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 privategain. The former is a commonRight, the latter is an extraordinary use. As to the former, the legislativepower is confined toregulation, as to the latter, it is plenary and extends even to absolute prohibition. Since the use of the streets by a commoncarrier 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 "Rightto use theroad" and what is a "privilegeto use theroad". 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 abrogatethem."

Miranda vs. Arizona, 384 US 436, 491


"The claim and exercise of a constitutionalRight cannot be converted into acrime."

Miller vs. U.S., 230 F. 486, 489


"There can be no sanction or penalty imposed upon one because of this exercise of constitutional Rights."

Snerer vs. Cullen, 481 F. 946

Streets and highways are established and maintained for the purpose of travel and transportation by the public. Such travel may be for business or pleasure.

"The use of the highways for the purpose of travel and transportation is not a mere privilege, but a common and fundamentalRight of which the public and the individual cannot be rightfullydeprived."

Chicago Motor Coach vs. Chicago, 169 NE 22;
Ligare vs. Chicago, 28 NE 934;
Boon vs. Clark, 214 SSW 607;
25 Am.Jur. (1st) Highways Sect.163


"The Right of the Citizen to travel upon the public highways and to transport his property thereon, either by horsedrawn carriage or byautomobile, is not a mere privilege which a city can prohibit or permit at will, but a commonRight which he has under the right tolife, liberty, and the pursuitofhappiness."

Thompson vs. Smith, 154 SE 579

So we can see that a Citizen has a Right to travel upon the publichighways by automobile and the Citizen cannot be rightfully deprived of his Liberty. So where does the misconception that the use of the publicroad is always and only a privilege come from?

"... For while a Citizen has the Right to travel upon the publichighways 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 privategain. For the latter purpose, no person has a vestedright to use the highways of the state, but is a privilege or a license which the legislature may grant or withhold at itsdiscretion."

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 publichighways, 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 publichighways 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 privategain."

Willis vs. Buck, 263 P.l 982;
Barney vs. Board of Railroad Commissioners, 17 P.2d 82


"The right of the citizen to travel upon the highway and to transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business for private gain in the running of astagecoach oromnibus."

State vs. City of Spokane, 186 P. 864

What is this Right of the Citizen which differs so "radicallyandobviously" from one who uses the highway as a place ofbusiness? Who better to enlighten us than JusticeTolman of the SupremeCourt of WashingtonState? In Statevs.City ofSpokane,supra, the Court also noted a very "radicalandobvious" difference, but went on to explain just what the differenceis:

"The former is the usual and ordinary right of the Citizen, a commonright to all, while the latter is special, unusual, andextraordinary."


"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 statecourts to the federalcourts.

"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 privategain in the running of a stagecoach oromnibus. The former is the usual and ordinaryright of the Citizen, a right common to all, while the latter is special, unusual, andextraordinary."

Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781


"The right of the Citizen to travel upon the publichighways and to transport his property thereon, in the ordinary course of life and business, is a commonright which he has under the right to enjoy life andliberty, 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 orwagon thereon or to operate an automobile thereon, for the usual and ordinary purpose oflife andbusiness."

Thompson vs. Smith, supra.;
Teche Lines vs. Danforth, Miss., 12 S.2d 784

There is no dissent among various authorities as to this position. (SeeAm.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 naturalrights, which has been protected by its inclusion as aguarantee in the various constitutions, which is not derived from nor dependent on theU.S.Constitution.... It is one of the most sacred and valuablerights [rememberthe words of JusticeTolman,supra.] as sacred as the right to private property...and is regarded asinalienable."

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 publicproperty, and their primary and preferred use is for privatepurposes, and that their use for purposes of gain is special and extraordinary which, generally at least, the legislature may prohibit or condition as it seesfit."

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 aprivilege. 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.
  3. "[The roads]... are constructed and maintained at publicexpense, and no person therefore, can insist that he has, or may acquire, a vestedright to their use in carrying on a commercialbusiness."

    Ex Parte Sterling, 53 SW.2d 294;
    Barney vs. Railroad Commissioners, 17 P.2d 82;
    Stephenson vs. Binford, supra.

    "When the publichighways are made the place of business the state has a right to regulate their use in the interest of safety and convenience of the public as well as the preservation of the highways."

    Thompson vs. Smith, supra.

    "[The state's] right to regulate such use is based upon the nature of the business and the use of the highways in connection therewith."


    "We know of no inherent right in one to use the highways for commercial purposes. The highways are primarily for the use of the public, and in the interest of the public, the state may prohibit or regulate...the use of the highways forgain."

    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 "usingthe roads in the ordinary course oflife andbusiness." However, it should be noted that extensive research has not turned up one case or authority acknowledging the state'spower to convert the individual'sright to travel upon the publicroads into a"privilege."

Therefore, it is concluded that the Citizen does have a"Right" to travel and transport his property upon the publichighways and roads and the exercise of thisRight is not a"privilege."


In order to understand the correct application of the statute in question, we must first define the terms used in connection with this point of law. As will be shown, many terms used today do not, in their legal context, mean what we assume they mean, thus resulting in the misapplication of statutes in the instant case.


There is a clear distinction between an automobile and a motorvehicle. An automobile has been definedas:

"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 havestated:

"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 isreceived."

International Motor Transit Co. vs. Seattle, 251 P. 120

The term `motorvehicle' 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 mechanicalpower and used for commercialpurposes on the highways in the transportation of passengers, orpassengers andproperty.

"Used for commercial purposes" means the carriage of persons or property for anyfare, 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 privateproperty in use for privatepurposes, while a motorvehicle is a machine which may be used upon the highways for trade, commerce, orhire.


The term "travel" is a significant term and is defined as:

"The term `travel' and `traveler' are usually construed in their broad and general as to include all those who rightfully use the highways viatically (whenbeing reimbursed forexpenses) and who have occasion to pass over them for the purpose ofbusiness, convenience, orpleasure."

25 Am.Jur. (1st) Highways, Sect.427, Pg. 717

"Traveler -- One who passes from place to place, whether for pleasure, instruction, business, orhealth."

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 onfoot, orhorseback, or in any conveyance as atrain, anautomobile, carriage, ship, oraircraft; Make ajourney."

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 ofRight.

Notice that in all these definitions, the phrase "forhire" never occurs. This term "travel" or"traveler" implies, bydefinition, one who uses the road as a means to move from one place toanother.

Therefore, one who uses the road in the ordinary course of life and business for the purpose oftravel and transportation is atraveler.


The term "driver" in contradistinction to "traveler," is definedas:

"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 ajourney, but is using the road as a place ofbusiness.


Today we assume that a"traveler" is a"driver," and a"driver" is an"operator." However, this is not thecase.

"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 forhire; 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 "forhire" 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 forgain.

This definition, then, is a further clarification of the distinction mentioned earlier, andtherefore:

  1. Travelling upon and transporting one'sproperty upon the publicroads as a matter ofRight meets the definition of atraveler.
  2. Using the road as a place of business as a matter of privilege meets the definition of adriver or anoperator orboth.


Having defined the terms "automobile," "motorvehicle," "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 publicwelfare by producing at the expense of those operating for privategain, some small part of the cost of repairing the wear..."

Northern Pacific R.R. Co. vs. Schoenfeldt, 213 P. 26

Note: In the above, JusticeTolman expounded upon the key of raising revenue by taxing the"privilege" to use the publicroads "atthe expense of those operating forgain."

In this case, the word "traffic" is used in conjunction with the unnecessary AutoTransportation Service, or in other words, "vehiclesforhire." The word"traffic" is another word which is to be strictly construed to the conducting ofbusiness.

"Traffic -- Commerce, trade, sale or exchange of merchandise, bills, money, or thelike. 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 "conductingbusiness." 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 forhire.

Furthermore, the word"traffic" and"travel" must have different meanings which the courts recognize. The difference is recognized in ExParteDickey,supra:

" 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 SupremeCourt of the StateofWashington has defined the word"traffic" (ineither its primary or secondarysense) 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 ofbusiness.


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, atrespass, or atort."

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 twodefinitions to apply in this case, the state would have to take up the position that the exercise of a ConstitutionalRight to use the publicroads in the ordinary course of life and business is illegal, atrespass, or atort, which the state could then regulate orprevent.

This position, however, would raise magnitudinous Constitutionalquestions as this position would be diametrically opposed to fundamental ConstitutionalLaw. (See"Conversionof a Right to aCrime,"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, orcorporation, to pursue some occupation or to carry on some business which is subject to regulation under the policepower."

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 raisingrevenue, 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 orregulation."

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 policepower into every facet of ourlives? Have our "enforcementagencies" been diverted from crime prevention, perhaps through nofault of their own, instead now busying themselves as they"check" our papers to see that all are properly endorsed by thestate?

How much longer will it be before we are forced to get alicense for our lawnmowers, or before our wives will need alicense for her"blender" or"mixer?" They all have motors on them and the state can always use therevenue.


The confusion of the policepower 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 aRight would be open to Constitutionalobjection. (See"taxingpower,"infra.)

Each law relating to the use of policepower must ask threequestions:

"1. Is there threatened danger?

"2. Does a regulation involve a ConstitutionalRight?

"3. Is this regulationreasonable?

People vs. Smith, 108 Am.St.Rep. 715;
Bovier's Law Dictionary, 1914 ed., under "PolicePower"

When applying these threequestions to the statute in question, some very important issues emerge.

First, "is there a threatened danger" in the individual using his automobile on the publichighways, in the ordinary course oflife andbusiness?

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 ahorse andbuggy.

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. (SeeYaleLawJournal, 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 dueprocess. (See"DueProcess,"infra.)

>Next; does the regulation involve a ConstitutionalRight?

This question has already been addressed and answered in this brief, and need not be reinforced other than to remind thisCourt that thisCitizen does have theRight to travel upon the publichighway by automobile in the ordinary course of life and business. It can therefore be concluded that this regulation does involve a ConstitutionalRight.

The third question is the most important in this case. "Isthis regulationreasonable?"

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 FourteenthAmendment does not interfere with the proper exercise of the policepower, in accordance with the general principle that the power must be exercised so as not to invade unreasonably the rights guaranteed by the UnitedStates Constitution, it is established beyond question that every statepower, including the policepower, is limited by the FourteenthAmendment (andothers) and by the inhibitions there imposed.

Moreover, the ultimate test of the propriety of policepower regulations must be found in the FourteenthAmendment, since it operates to limit the field of the policepower to the extent of preventing the enforcement of statutes in denial ofRights that the Amendment protects. (SeeParksvs.State, 64NE682.)

"With regard particularly to the U.S.Constitution, it is elementary that aRight 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 theConstitutions, not in the letter, although they are just as efficient as if expressed in the clearestlanguage."

Mehlos vs. Milwaukee, 146 NW 882

As it applies in the instant case, the language of the FifthAmendment isclear:

"No person shall be...deprived of Life, Liberty, or Property without dueprocess oflaw."

As has been shown, the courts at all levels have firmly established an absoluteRight totravel.

In the instant case, thestate, by applying commercialstatutes to all entities, natural and artificialpersons alike, has deprived this free and naturalperson of the RightofLiberty, without cause and without dueprocess oflaw.


"The essential elements of due process of law are...Notice and The Opportunity todefend."

Simon vs. Craft, 182 US 427

Yet, not one individual has been given notice of the loss of his/herRight, let alone before signing thelicense(contract). Nor was the Citizen given any opportunity to defend against the loss of his/herright to travel, byautomobile, on the highways, in the ordinary course of life andbusiness. This amounts to an arbitrary deprivation ofLiberty.

"There should be no arbitrary deprivation of Life or Liberty..."

Barbour vs. Connolly, 113 US 27, 31;
Yick Wo vs. Hopkins, 118 US 356


"The right to travel is part of the Liberty of which a citizen cannot deprived without dueprocess oflaw under the FifthAmendment. This Right was emerging as early as the MagnaCarta."

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 publichighways a safeplace 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 hisRight to use the publichighways, forcause. This process would fulfill the dueprocess requirements of the FifthAmendment while at the same time insuring that Rights guaranteed by the U.S.Constitution and the stateconstitutions would be protected.

But unless or until harm or damage (acrime) is committed, there is no cause for interference in the privateaffairs or actions of aCitizen.

One of the most famous and perhaps the most quoted definitions of dueprocess oflaw, is that of DanielWebster in his DartmouthCollegeCase (4Wheat518), in which he declared that by dueprocess ismeant:

"alaw 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. (12Am.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 "forhire." Itshould be kept in mind, however, that we are discussing the arbitrary deprivation of theRight to use the road that all citizens have"incommon."

The futility of the state'sposition can be most easily observed in the1959 Washington AttorneyGeneral'sopinion on a similarissue:

"The distinction between the Right of the Citizen to use the public highways for private, rather than commercial purposes is recognized..."


"Under its power to regulate private uses of our highways, our legislature has required that motorvehicle operators be licensed(I.C.49-307). Undoubtedly, the primary purpose of this requirement is to insure, as far as possible, that all motorvehicle 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 matterofRight, must give up the Right and convert the Right into aprivilege. 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 in1959; however, as of1966, in the UnitedStates SupremeCourt decision inMiranda, even this weak defense of the state'sactions mustfall.

"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'sRight to travel upon the publicroads, by passing legislation forcing the citizen to waive hisRight and convert that Right into aprivilege. Furthermore, we have previously established that this"privilege" has been defined as applying only to those who are "conductingbusiness in thestreets" or "operatingfor-hirevehicles."

The legislature has attempted (bylegislativefiat) to deprive theCitizen of hisRight to use the roads in the ordinary course oflife andbusiness, without affording the Citizen the safeguard of "dueprocess oflaw." This has been accomplished under supposed powers ofregulation.


"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 orcertainty."

25 Am.Jur. (1st) Highways, Sect.260


"Moreover, a distinction must be observed between the regulation of an activity which may be engaged in as a matter of right and one carried on by government sufferance of permission."

Davis vs. Massachusetts, 167 US 43;
Pachard vs. Banton, supra.

One can say for certain that these regulations are impartial since they are being applied to all, even though they are clearly beyond the limits of the legislative powers. However, we must consider whether such regulations are reasonable and non-violative of constitutional guarantees.

First, let us consider the reasonableness of this statute requiring all persons to be licensed (presumingthat we are applying this statute to all persons using the publicroads). In determining the reasonableness of the statute we need only ask twoquestions:

1. Does the statute accomplish its stated goal?

The answer is No!

The attempted explanation for this regulation "toinsure the safety of the public by insuring, as much as possible, that all arecompetent andqualified."

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 itsgoal.

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 bylicensees.

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 naturalRight 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 publicroads. (Thisis exactly the situation in the aviationsector.)

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 ConstitutionalRight to travel in order to accept and exercise aprivilege. After signing the license, aquasi-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 ConstitutionalRights and guarantees such a theRight to a trial by jury of twelvepersons and theRight to counsel, as well as the normal safeguards such as proof of intent and a corpusdilecti and a grandjury indictment. These unconstitutional prosecutions take place because the Citizen is exercising aprivilege and has given his/her "impliedconsent" to legislative enactments designed to control interstate commerce, aregulatable enterprise under the policepower of thestate.

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 publichighways in the ordinary course oflife andbusiness.


A Citizen cannot be forced to give up his/herRights in the name ofregulation.

"... the only limitations found restricting the right of the state to condition the use of the publichighways 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.ConstitutionalRights as a condition precedent to obtaining permission for suchuse..."

Riley vs. Laeson, 142 So. 619;
Stephenson vs. Binford, supra.

If one cannot be placed in a position of being forced to surrenderRights in order to exercise aprivilege, how much more must this maxim oflaw, then, apply when one is simply exercising (puttingintouse) aRight?

"To be that statute which would deprive a Citizen of the rights of person or property, without a regular trial, according to the course and usage of the common law, would not be the law of the land."

Hoke vs. Henderson, 15 NC 15


"We find it intolerable that one ConstitutionalRight should have to be surrendered in order to assertanother."

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 policepower, dueprocess, orregulation, but must be exposed as astatute which is oppressive and one which has been misapplied to deprive the Citizen ofRights guaranteed by the UnitedStates Constitution and the stateconstitutions.


"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 aRight, this would enable the state to destroyRights guaranteed by the constitution through the use of oppressive taxation. The question herein, is one of the state taxing theRight to travel by the ordinary modes of the day, and whether this is a legislative object of the statetaxation.

The views advanced herein are neither novel nor unsupported by authority. The question of taxingpower of the states has been repeatedly considered by the SupremeCourt. 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 invain.

"...It may be said that a tax of onedollar for passing through the state cannot sensibly affect any function of government or deprive aCitizen of any valuable Right. But if a state can tax...apassenger of onedollar, it can tax him athousanddollars."

Crandall vs. Nevada, 6 Wall 35, 46


"If the Right of passing through a state by a Citizen of the UnitedStates is one guaranteed by the Constitution, it must be sacred from statetaxation."

Ibid., Pg. 47

Therefore, the Right of travel must be kept sacred from all forms of statetaxation and if this argument is used by the state as a defense of the enforcement of this statute, then this argument also mustfail.


As previously demonstrated, the Citizen has the Right to travel and to transport his property upon the publichighways in the ordinary course oflife andbusiness. However, if one exercises this Right to travel (withoutfirst giving up theRight and converting that Right into aprivilege) the Citizen is bystatute, guilty of acrime. This amounts to converting the exercise of a ConstitutionalRight into acrime.

Recall the Millervs.U.S. and Snerervs.Cullen quotes fromPg.5, and:

"The state cannot diminish Rights of the people."

Hurtado vs. California, 110 US 516


"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."

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 ofRight 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 hisRight toLiberty.

As we have already shown, the term"drive" can only apply to those who are employed in the business of transportation forhire. It has been shown that freedom includes the Citnzen'sRight to use the publichighways in the ordinary course oflife and business without license or regulation by the policepowers of thestate.


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 publicsafety, has no real or substantial relation to those objects or is apalpable invasion ofRights secured by the fundamentallaw, it is the duty of the courts to so adjudge, and thereby give effect to theConstitution."

Mulger vs. Kansas, 123 US 623, 661


"It is the duty of the courts to be watchful for the Constitutionalrights of the citizen and against any stealthy encroachments thereon."

Boyd vs. United States, 116 US 616

The courts are "dutybound" to recognize and stop the "stealthyencroachments" which have been made upon the Citizen's Righttotravel and to use the roads to transport his property in the "ordinarycourse oflife andbusiness." (Hadfield,supra.)

Further, the court must recognize that the Righttotravel is part of the Liberty of which a Citizen cannot be deprived without specific cause and without the "dueprocess oflaw" guaranteed in the FifthAmendment. (Kent,supra.)

The history of this "invasion" of the Citizen'sRight to use the publichighways shows clearly that the legislature simply found a heretofore untapped source of revenue, gotgreedy, and attempted to enforce astatute in an unconstitutional manner upon those free and naturalindividuals who have aRight to travel upon the highways. This was not attempted in an outright action, but in aslow, meticulous, calculated encroachment upon the Citizen'sRight totravel.

This position must be accepted unless the prosecutor can show his authority for the position that the "useof theroad in the ordinary course of life andbusiness" is aprivilege.

To rule in any other manner, without clear authority for an adverse ruling, will infringe upon fundamental and basic concepts of Constitutionallaw. This position, that aRight cannot be regulated under any guise, must be accepted without concern for the monetary loss of thestate.

"Disobedience or evasion of a ConstitutionalMandate cannot be tolerated, even though such disobedience may, at least temporarily, promote in some respects the best interests of thepublic."

Slote vs. Examination, 112 ALR 660


"Economic necessity cannot justify a disregard of Constitutional guarantee."

Riley vs. Carter, 79 ALR 1018;
16 Am.Jur. (2nd), Const. Law, Sect. 81


"ConstitutionalRights 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'sdecision 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"SovereignPeople."

Finally, we come to the issue of "publicpolicy." It could be argued that the "licensingscheme" of all persons is a matter of"publicpolicy." However, if this argument is used, it too must fail,as:

"No publicpolicy 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 "publicpolicy" cannot abrogate this Citizen'sRight to travel and to use the publichighways in the ordinary course oflife andbusiness.

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 privategain and that such regulation is a valid exercise of the policepower."

Northern Pacific R.R. Co., supra.


"The act in question is a valid regulation, and as such is binding upon all who use the highway for the purpose of privategain."


Any other construction of this statute would render it unconstitutional as applied to thisCitizen or anyCitizen. The Accused therefore moves this court to dismiss the charge against him, withprejudice.

June 10, 1986.

This ends the legal brief.

In addition:

Since no notice is given to people applying for driver's (orother) 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 legalcontract under which the state is empowered with policingpowers, is only valid when the licensee takes on the burdens of thecontract and bargains away his or herrights knowingly, intentionally, andvoluntarily.

Few know that the driver'slicense is acontract without which the police are powerless to regulate the people'sactions oractivities.

Few (ifany) 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)


see What is a License? Here's One!



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