TRAVEL

 TRAVEL

The term “travel” is a significant term and is defined as:

“The term ‘travel’ and ‘traveler’ are usually construed in their broad and general sense...so as to include all those who rightfully use the highways viatically (when being reimbursed for expenses) and who have occasion to pass over them for the purpose of

business, convenience, or pleasure.” [Emphasis added] 25 Am. Jur. (1st) Highways, Sect. 427, p.717.

“Traveler-- One who passes from place to place, whether for pleasure, instruction, business, or health.” Locket vs. State, 47 Ala. 45; Bouvier’s Law Dictionary, 1914 ed., p. 3309.

“Travel -- To journey or to pass through or over; as a country district, road, etc. To go from one place to another, whether on foot, or horseback, or in any conveyance as a train, an automobile, carriage, ship, or aircraft; make a journey.” Century Dictionary, p. 2034.

Therefore, the term “travel” or “traveler” refers to one who uses a conveyance to go from one place to another and included all those who use the highways as a matter of Right. Notice that in all these definitions the phrase “for hire” never occurs. This term “travel” or “traveler” implies by definition one who uses the road as a means to move from one place to another.

Therefore, one who uses the road in the ordinary course of life and business for the purpose of travel and transportation is a traveler.

DRIVER

The term “driver” in contradistinction to “traveler” is defined as:

“Driver -- One employed in conducting a coach, carriage, wagon, or other vehicle...”

Bouvier’s Law Dictionary, 1914 ed., p. 940.

Notice that this definition includes one who is “employed” in conducting a vehicle. It should be self-evident that this person could not be “traveling” on a journey, but is using the road as a place

in the conduct of business.

OPERATOR

Today we assume that a “traveler” is a “driver,” and a “driver” is an “operator.” However, this is not the case.

Page 39 of 88“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 S.E. 2d 658.

To further clarify the definition of an “operator” the court observed that this was a vehicle “for hire” and that it was in the business of carrying passengers. This definition would seem to describe a person who is using the road as a place of business, or in other words, a person

engaged in the “privilege” of using the road for gain.

This definition then is a further clarification of the distinction mentioned earlier and therefore:

1.

Traveling upon and transporting one's property upon the public roads as a matter of Right meets the definition of a traveler.

2.

Using the road as a place of business as a matter of privilege meets the definition of a driver or an operator or both.

TRAFFIC

Having defined the terms “automobile,” “motor vehicle,” “traveler,” “driver,” and “operator,” the next term to define is “traffic”:

“...traffic thereon is to some extent destructive, therefore, the prevention of unnecessary duplication of auto transportation service will lengthen the life of the highways or reduce

the cost of maintenance, the revenue derived by the state...will also tend toward the public welfare by producing at the expense of those operating for private gain, some small part of the cost of repairing the wear Northern Pacific R.R. Co. vs. Schoenfeldt, 213

P. 26.

Note: In the above, Justice Tolman expounded upon the key of raising revenue by taxing the “privilege” to use the public roads “at the expense of those operating for gain.”

In this case, the word “traffic” is used in conjunction with the unnecessary Auto Transportation Service, or in other words, “vehicles for hire.” The word “traffic” is another word, which is to be strictly construed to the conducting of business.

“Traffic-- Commerce, trade, sale or exchange of merchandise, bills, money, or the like.

The passing of goods and commodities from one person to another for an equivalent in goods or money...” Bouvier’s Law Dictionary, 1914 ed., p. 3307.

Page 40 of 88Here again, notice that this definition refers to one “conducting business.” No mention is made of one who is traveling in his automobile. This definition is of one who is engaged in the passing

of a commodity or goods in exchange for money, i.e. vehicles for hire. Furthermore, the word “traffic” and “travel” must have different meanings, which the counts 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, now to nail the matter down:

“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 (1917).

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 source of income or 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, 2l8 N.W. 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 prove 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 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:

Page 41 of 88“a permit, granted by an appropriate governmental body, generally for consideration, to a person, firm, or corporation, to pursue some occupation or to carry on some business which is subject to regulation under the police power.” [emphasis added] Rosenblatt vs.

California State Board of Pharmacy, 158 P. 2d 199, 203.

This definition would fall more in line with the “privilege” of carrying on business on the streets.

Most people tend to think that “licensing” is imposed by the state for the purpose of raising revenue, yet there may well be more subtle reasons contemplated; for when one seeks permission from someone to do something he invokes the jurisdiction of the “licensor” which, in this case, is the state. In essence, the licensee may well be seeking to be regulated by the “licensor.”

“A license fee is a charge made primarily for regulation, with the fee to cover costs and expenses of supervision or regulation.” State vs. Jackson, 60 Wisc. 2d 700; 211 N.W. 2d 480, 487.

The fee is the price; the regulation or control of the licensee, which 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, now busying themselves as they “check” our papers to see that all are properly endorsed by the state?

At which Legislative Session will it be before we are forced to get a license for Lawnmowers, Generators, Tillers, and Air Conditioners or before Women are required to have a license for their “blender” or “mixer?” All have motors on them and the state can always use the revenue. At what point does the steady encroachment into our Liberty cease?

“The automobile is not inherently dangerous.” Cohens vs. Meadow, 89 SE 876; Blair vs. Broadwater, 93 SE 632 (1917).

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.)

2. 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.

3. The third question is the most important in this case. “Is this regulation reasonable?”

Page 43 of 88. 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 Ninth Amendment, since it operates as a bulwark to limit the field of the police power to the extent of preventing the enforcement of statutes in denial of Rights that the Constitution protects. (See Parks vs. State, 64 N.E. 682 (1902).

“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 U. S. 540 (1902); Lafarier vs. Grand Trunk R.y. Co., 24 A. 848 (1892); O’Neil vs. Providence Amusement Co., 103 A. 887.

“The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution.” [emphasis added] Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 U. S. 613 (1935); Buchanan vs. Warley, 245 U.S. 60 (1917).

“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.” Tighe vs. Osborne, 131 A. 60 (1925).

“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. City of Milwaukee, 146 N. W. 882 (1914).

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 demonstrated 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, the legislature has deprived this free and natural person of the Right of Liberty, without cause and without due process of law.

For example, in Pennsylvania, the demand for bill of particulars used to be before arraignment so that one had an

opportunity to raise a meaningful defense against the elements of personal jurisdiction and "venue" (to include territorial jurisdiction as well as the "nature of the action" that used to be a part of subject matter jurisdiction).

"Nature and Cause" of the accusation,

I simply do not understand the Nature and Cause of the Accusation with regard to the elements of personal jurisdiction, venue, and the nature of the action until the prosecution properly alleges them. I am therefore unable to enter a plea to the charge, until I have had an opportunity to raise a meaningful defense against these elements. I cannot rebut an unstated presumption.