Do you Need a Drivers License? – Driver Licensing vs. the Right to Travel
Collection of Legal Citations supporting the Right to Travel
**NOTE: For educational purposes only. Authors unknown.
Brief for the Right to Drive This case Washingto v. Port is important s it details how the case for the right to drieve can be won. Port lost the case because of her error in admitting the state had a right. Read the case and you will soon see how she could easily have won. She actually had won the case until she said the wrong thing.
The following argument has been used in at least three states (Pennsylvania, Ohio, and West Virginia) as a legal brief to support a demand for dismissal of charges of “driving without a license.” It is the argument that was the reason for the charges to be dropped, or for a “win” in court against the argument that free people can have their right to travel regulated by their servants. These arguments can be used in nearly any state against the state trying to deny a driver’s right to travel.
The forgotten legal maxim is that free people have a right to travel on the roads which are provided by their servants for that purpose, using ordinary transportation of the day. Licensing cannot be required of free people, because taking on the restrictions of a license requires the surrender of a right. The driver’s license can be required of people who use the highways for trade, commerce, or hire; that is, if they earn their living on the road, and if they use extraordinary machines on the roads. If you are not using the highways for profit, you cannot be required to have a driver’s license.
NOW, comes the Accused, appearing specially and not generally or voluntarily, but under threat of arrest if he failed to do so, with this “BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION,” stating as follows:
If ever a judge understood the public’s right to use the public roads, it was Justice Tolman of the Supreme Court of the State of Washington. Justice Tolman stated:
Robertson vs. Department of Public Works, 180 Wash 133, 147.
The words of Justice Tolman ring most prophetically in the ears of Citizens throughout the country today as the use of the public roads has been monopolized by the very entity which has been empowered to stand guard over our freedoms, i.e., that of state government.
The “most sacred of liberties” of which Justice Tolman spoke was personal liberty. The definition of personal liberty is:
16 C.J.S., Constitutional Law, Sect.202, p.987
This concept is further amplified by the definition of personal liberty:
II Am.Jur. (1st) Constitutional Law, Sect.329, p.1135
and further …
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:
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.
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.
Miranda vs. Arizona, 384 US 436, 491
Miller vs. U.S., 230 F. 486, 489
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.
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
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?
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.
Willis vs. Buck, 263 P. l 982;
Barney vs. Board of Railroad Commissioners, 17 P.2d 82
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:
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.
Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781
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].)
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?
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 …
- Travelling upon and transporting one’s property upon the public roads, which is our Right; and …
- 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.”
“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.”
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:
International Motor Transit Co. vs. Seattle, 251 P. 120
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:
“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.
25 Am.Jur. (1st) Highways, Sect.427, Pg. 717
Locket vs. State, 47 Ala. 45;
Bovier’s Law Dictionary, 1914 ed., Pg. 3309
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.
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.
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:
- Travelling upon and transporting one’s property upon the public roads as a matter of Right meets the definition of a traveler.
- Using the road as a place of business as a matter of privilege meets the definition of a driver or an operator or both.
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.
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:
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:
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.
People vs. Henderson, 218 NW.2d 2, 4
Western Electric Co. vs. Pacent Reproducer Corp., 42 F.2d 116, 118
In order for these two definitions to apply in this case, the state would have to take up the position that the exercise of a Constitutional Right to use the public roads in the ordinary course of life and business is illegal, a trespass, or a tort, which the state could then regulate or prevent.
This position, however, would raise magnitudinous Constitutional questions as this position would be diametrically opposed to fundamental Constitutional Law. (See “Conversion of a Right to a Crime,” infra.)
In the instant case, the proper definition of a “license” is:
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.”
State vs. Jackson, 60 Wisc.2d 700; 211 NW.2d 480, 487
The fee is the price; the regulation or control of the licensee is the real aim of the legislation.
Are these licenses really used to fund legitimate government, or are they nothing more than a subtle introduction of police power into every facet of our lives? Have our “enforcement agencies” been diverted from crime prevention, perhaps through no fault of their own, instead now busying themselves as they “check” our papers to see that all are properly endorsed by the state?
How much longer will it be before we are forced to get a license for our lawn mowers, or before our wives will need a license for her “blender” or “mixer?” They all have motors on them and the state can always use the revenue.
Each law relating to the use of police power must ask three questions:
“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.)
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.)
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
Bacahanan vs. Wanley, 245 US 60;
Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613
Tiche vs. Osborne, 131 A. 60
Mehlos vs. Milwaukee, 146 NW 882
As it applies in the instant case, the language of the Fifth Amendment is clear:
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.
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.
Barbour vs. Connolly, 113 US 27, 31;
Yick Wo vs. Hopkins, 118 US 356
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:
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:
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)
The futility of the state’s position can be most easily observed in the 1959 Washington Attorney General’s opinion on a similar issue:
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.
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.
25 Am.Jur. (1st) Highways, Sect. 260
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:
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.
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.
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?
Hoke vs. Henderson, 15 NC 15
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.
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.
Crandall vs. Nevada, 6 Wall 35, 46
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.
Recall the Miller vs. U.S. and Snerer vs. Cullen quotes from Pg. 5, and:
Hurtado vs. California, 110 US 516
Indeed, the very purpose for creating the state under the limitations of the constitution was to protect the rights of the people from intrusion, particularly by the forces of government.
So we can see that any attempt by the legislature to make the act of using the public highways as a matter of Right into a crime, is void upon its face.
Any person who claims his Right to travel upon the highways, and so exercises that Right, cannot be tried for a crime of doing so. And yet, this Freeman stands before this court today to answer charges for the “crime” of exercising his Right to Liberty.
As we have already shown, the term “drive” can only apply to those who are employed in the business of transportation for hire. It has been shown that freedom includes the Citnzen’s Right to use the public highways in the ordinary course of life and business without license or regulation by the police powers of the state.
Mulger vs. Kansas, 123 US 623, 661
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