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Thomas B.
Ginter
Sovereign Citizen
Embassy of
Heaven
State of
Sui
Juris
Attorney Pro Se
State of
IN THE
(801)963-3500
_______________________________________________________________________
Corporation, (Unofficial)
DUE PROCESS AND EQUAL ROTECTION
A Racketeer Influenced Corrupt
PURSUANT TO
AMENDMENTS I, IV, V, VI
Organization,18 USC 1961-1965 VII, VIII,
IX, X, XIII, XIV, AND
COROLLARY
PROVISIONS OF
Accuser,
WITH MEMORANDUM OF LAW-
BRIEF
FREQUENT RECURRENCE TO
FUNDAMENTAL
PRINCIPLES IS
ESSENTIAL TO FREE GOVERNMENT
UTAH
CONSTITUTION ARTICLE I:27.
Thomas B.
Ginter, Jr.
Sovereign
Citizen
State of Heaven
Judge? Keith L. Stoney (Unofficial
Judge)
Accused.
UCA 76-8-203 A1 and 3
________________________________________________________________________
STATE OF
) ss.
County of
Demand for Proof of
Jurisdiction and Due Process of Law
.
The
falsely Accused, Thomas B, Ginter, appearing pro se (for
self) Sui
Juris (capable of managing one's own affairs) in the above entitled matter,
hereby challenges the jurisdiction, power and existence of this court and the
entire Justice Court system under the Constitution and laws of the State of Utah
and provisions stated in this paragraph, and hereby demands all of his rights,
privileges and immunities granted to him from God and recognized in the Magna
Carta, Mayflower Compact, Declaration of Rights of 1774 A.D., Declaration of
Independence, July 4, 1776 A.D., The Constitution of the United States of
America, the laws made in pursuance thereof, treaties made under the authority
of the United States, the Constitution of the State of Utah and laws made in
pursuance thereof, common law, and that most holy, just and pure law of our
Almighty Creator, Jesus Christ, the perfect law of liberty. Amen.
Demand to
be Fully Informed to Insure Accused Does Not
Unknowingly Waive Rights.
The
Accused demands that he be fully informed throughout the proceedings at any and
every time when he may be in jeopardy of waiving, without his knowledge or
consent, any right, privilege or immunity protected, secured and guaranteed to
Accused under any provision of the paragraph above. He demands that he be
warned, sua sponte, (on its own will or motion) whenever danger of waiver
becomes apparent to the duly elected or appointed and qualified magistrate
exercising the functions of a public office in the above entitled court or any
other court professing or claiming jurisdiction over the person of the accused,
the subject matter of this proceeding, or the property of the Accused, a 1988
Toyota, of which the Accused has been deprived by force of arms by the accuser's
agent Darren Mower.
The
Accused demands proof of jurisdiction of:
1. Mower, Darren, who under
the guise or disguise of a duly qualified peace officer of a political
subdivision of the State of Utah issued citation #U82776428 on October 13, 2004
A.D., to the Accused, and at the time and place of issuance of the said citation
did, without due process of law or equal protection of the law, deprive the
Accused, Thomas B. Ginter, Jr. of his right to travel and of his right to
personal property, i.e., a 1988 Model Toyota Corolla Deluxe, his sole means of
transportation used in his exercise of his unfettered right to travel upon the
highways of the United States of America and of the States therein, including
the highways in the State of Utah..
2.
Stoney, Keith L. who exercised or attempted to exercise, and continues to
exercise or attempt to exercise, the functions of a public office in violation
of UCA 1953, section 76-8-203 a3,
under the guise or disguise of an appointed Justice Court Judge in an
arraignment hearing in this matter December 13, 2004 A.D., and continuing to
this 23rd Day of February in the year of our Lord and Savior, 2005, and is
aiding and abetting the upholding of the deprivations of the Accused’s
unfettered right to travel and the means by which he exercises his right to
travel, i.e., a. 1988 Toyota Corolla Deluxe motor vehicle, shipped in interstate
commerce, and used by the Accused for personal and religious travel guaranteed,
protected and secured under Amendment I , of the Constitution of the United
States of America, made applicable to the States under Amendment
XIV.
3. Bunderson, Eric who is exercising or
attempting to exercise the functions of a public office in the guise or disguise
of a prosecuting attorney in the West Valley Justice Court for Accuser West
Valley City through and by Darren Mower, thereby depriving the Accused of his
right to travel and of his right to
property; the means to travel, i.e., a Toyota Corolla Deluxe being held contrary to law without due process of
law or equal protection of the laws and in violation of United States
racketeering statutes, 18 USC 1961-1965, inter alia, in conspiracy with Keith L.
Stoney, Darren Mower, the unofficial court clerk, West Valley City’s unofficial
mayor and treasurer, David E. Yocom, who unofficially exercises the functions of
public office in violation of 76-8-203, in conspiracy with Mark A. Shurtleff,
Christine M. Durham, Jon M. Huntsman, Jr., Edward T. Alter, Auston G. Johnson,
Olene Smith Walker, Gayle F. McKechnie, Michael O. Leavitt, Norman H. Bangerter
and the whole unofficial Utah Senate and House of Representatives, none of whom
have qualified to hold public office because they acted under unofficial laws
and unofficial Amendments to Utah’s Constitution unofficially attempted between
1973 and February 22, 2005
A.D. This has been done knowingly .
4. The person exercising or attempting
to exercise the functions of a public office as a court clerk in the
5. Any other person involved or who may
become involved in the exercise or attempted exercise of a public office in
these proceedings under the guise or disguise of holding any public office
.including, but not limit to, any legislative, executive or judicial office of
the State of Utah or any political subdivision thereof.
Accused Demands Proof of Oath of
Office Duly administered, Taken, Subscribed and Filed.
The Accused Demands proof that each
person exercising or attempting to exercise the functions of a public office in
these proceedings, or in any capacity relating to or affecting these
proceedings, has a valid oath of office duly filed with the public official duly
qualified as the official prescribed by law for filing oaths of office;, and
that each such person has been duly elected or duly appointed to such office;,
and under pains and penalty of perjury, has had the required oath of office duly
administered and duly subscribed by the person duly elected or duly appointed to
public office, and by the person duly qualified to administer such oaths of
office, showing both signatures on the oath of office..
Accused
Demands Proof f Persons Administering Oaths Were Duly Oath
Bound.
The
Accused demands that each person who has administered the oath of office to each
person participating in these proceedings was duly sworn and duly qualified to
administer such oath by producing their respective oath of office certificates,
duly subscribed and duly filed with the filing officer for the respective
jurisdictions in which they are exercising the functions of a public office.
These
demands for proving jurisdiction- in a court of competent jurisdiction over the
person of the Accused; the subject matter involved-the statutes or ordinances
limiting the Accused's liberty
right to travel, and his right to own and control property of which the Accused
has been deprived-a 1988 Toyota Corolla Deluxe; must me met before these
proceedings may go forward.
Proceeding
without formal proof of jurisdiction is a denial of due process of law. The
Constitutions to which we owe allegiance require that no person be denied due
process of law or equal protection of the laws. States are bound by
Amendment XIV.
Justice
Court System Is Not Established Pursuant To Constitutional
Law.
The
Justice Courts System claims authority under Article VIII Section 1 of the Utah
Constitution: [Judges
of courts not of record.] Judges of courts not of record shall be selected in a
manner, for a term, and with qualifications provided by statute. However, no
qualification may be imposed which requires judges of courts not of record to be
admitted to practice law. The number of judges of courts not of record shall be
provided by statute. [This provision
is unconstitutional and void. There have been no valid amendments to Utah's
Constitution since1973 A.D.] The Justice of the peace system is
official and is still in effect under the constitutional laws of the State of
Last
revised: Tuesday, December 21, 2004
Article
VIII, Section 16. [Public prosecutors.]
The Legislature shall provide for a
system of public prosecutors who shall have primary responsibility for the
prosecution of criminal actions brought in the name of the State of Utah and
shall perform such other duties as may be provided by statute. Public
prosecutors shall be elected in a manner provided by statute, and shall be
admitted to practice law in Utah. If a public prosecutor fails or refuses to
prosecute, the Supreme Court shall have power to appoint a prosecutor pro
tempore.
Title
78, Chapter 5, Sections 101, 102, 103, 104, 105, 106, 107, 108, 109, 111, 113,
120, and 125, of the "unofficial"
Three
letters from the State Archives prove that the oaths of office of persons
elected to the
The
Accused in this matter hereby demands proof that oaths of office of senators
were filed with the secretary of state in the State of Utah before persons
claiming to be senators attempted to exercise the functions of the public office
of senator to change the state official with whom official oaths of state
officials were and are to be filed.
Furthermore the unofficial lieutenant governor's list of oaths of office
in the division of archives shows no oaths of office for any person elected to
the
Return
of Motor Vehicle Demanded With Damages Paid in Lawful Money
Included
Therefore,
the falsely Accused, hereby demands the immediate
return of said motor vehicle, without delay, and demands compensation for the
loss of time and expenses incurred in defending against this unjust usurpation
of power and the malicious prosecution of him in this unofficial case. Damages claimed exceed 7.67 trillion
dollars in gold and silver Coin of the United States, the estimated current
obligation of the Federal Reserve Banks and Board of Governors of the Federal
Reserve System and William Jefferson Clinton and George W. Bush and John F.
Kerry who have participated in the Racketeering enterprise with Accuser West
Valley City and others named herein.
George W. Bush, George H. W. Bush, Joseph Lieberman, and Howard Dean are
all members of Skull and Bones, a secret combination, the most influential
secret society in America, who now control with their affiliated secret
societies an excessive amount of the property acquired by criminal means in
violation of !8 USC 4, 8, 334, 371, 471, 472, 473, 891-894, 1341-1343,
1961-1965, 2381, 2382, 2383, 2384,2385 and 2386, among others, thereby
forfeiting their rights to life, liberty and property and the pursuit of
happiness.
West
Valley City, the false accuser, and Darren Mower, the unofficial policeman, and
Eric Bunderson,
the unofficial prosecutor, and the unofficial clerk, are all liable for the
damages imposed upon the Accused for the false prosecution in which the Accused
was threatened with the loss of his liberty for failure to attend the unofficial
court by means of an unlawful order in the form of a false citation directing
the Accused to appear in an unofficial court, the unofficial West Valley City
Municipal Justice Court, or be put in jail for failure to comply. This deprivation of rights goes much
further. The incident not only
caused the falsely accused in this case to be left without private means of
travel, but subjected him to incurring an extortionate extension of credit in
counterfeit notes or coins or credit not redeemable in gold and silver coin from
Harman's Towing ,
969-4749, 2923 S 3500
W, West Valley City, Utah or Kearns Towing, 2881 South 3600 West, West Valley
City, Utah 84119, phone )801) 886-9202, Detective Hold call (801) 9633293. This is part of a racketeering scheme to
defraud the Accused by attempting to make him use falsely made securities and
current coins of the United States and the Federal Reserve Banks issued through
the twelve Federal Reserve Banks and circulated in West Valley City, Salt Lake
County, the State of Utah, and throughout the United States of America and
elsewhere. It is an international
racketeering scheme that is operating without authority of law and in violation
of numerous provisions thereof, and in violation of the United States
Constitution and the Constitution of the State of
Federal
Felony Statutes Attached To Demand And Brief-Memorandum of
Law.
“No State shall…make any Thing but gold and silver Coin
a Tender in Payment of Debts;”
..
MEMORANDUM OF
LAW
AND OFFICIAL
NOTICE
State of
Office of the Governor
Lawrence Rey Topham,
Acting Governor
OFFICIAL NOTICE
OATH OF
OFFICE IS ESSENTIAL TO HOLDING PUBLIC OFFICE
FAILURE TO FILE
OATH OF OFFICE OR BOND
WITHIN TIME PRESCRIBED BY LAW
IS FATAL TO HOLDING
PUBLIC OFFICE;
THE OFFICE AUTOMATICALLY BECOMES VACANT;
LATE FILING IS
INEFFECTIVE;
EVERY UNOFFICIAL ACT IS VOID;
AND ANY SUBSEQUENT PROCEEDINGS
ARE VITIATED.
Persons
chosen for public office may be required by law to accept the office within a
specified time and to qualify by filing an oath, giving bond or doing whatever
else the law declares necessary to entitle them to assume the duties of the
office.
Applicable
statutes are controlling and may declare vacancy to exist if the person chosen
for the office fails to accept or qualify as required by law. Parker v.
Overman, 59
Failure
to comply with such provisions will absolutely forfeit the right to office.
Brannon v. Perky, 127
Office
is vacant by reason of failure to file a required oath. Boisvert v.
Failure
to timely file oath of office, in accordance with a statute so requiring,
neither notice nor judicial procedure is necessary; the office is automatically
vacant and may be filled as provided by law. Comins v.
Act
Declaring office vacant and to be filled as provided by law for failure to
qualify within 60 days after beginning of term is not unconstitutional and
applies to all officers enumerated and similarly situated. State Ex Rel. Stain v. Christensen,
84 U. 185, 25 P.2d 775.
Judges
of the Supreme Court subscribe to this oath when entering upon their duties as
justices thereof. Critchlow v. Monson, 102 U. 378, 131
P.2d 794.
Filing
an oath of office after the time prescribed by law is not a compliance with the
law, confers no power to act as a public officer or in a public office and any
person who fails to file his oath of office within the time limits required by
law creates an ipso facto vacancy and such person's acts are void and vitiate
any subsequent proceedings. Parker v. Overman, 59
"All
officers made elective or appointive by this Constitution or by the laws made in
pursuance thereof, before entering upon the duties of their respective offices,
shall take and subscribe the following oath or affirmation; "I do solemnly swear
(or affirm) that I will support, obey and defend the Constitution of the United
States and the Constitution of this State, and that I will discharge the duties
of my office with fidelity.["]
(1)
A person is guilty of unofficial misconduct if he exercises or attempts to
exercise any of the functions of a public office when:
(a) He has not taken
and filed the required oath of office; or
(b) He has failed to execute and
file the required bond; or
(c) He has not been elected or appointed to
office; or
(d) He exercises any of the functions of his office after his
term has expired and the successor has been elected or appointed and has
qualified, or his office has been legally removed.
(e) He knowingly
withholds or retains from his successor in office or other person entitled to
the official seal or any records, papers, documents, or other writing
appertaining or belonging to his office or mutilates or destroys or takes away
the same.
(2) Unofficial misconduct is a class B misdemeanor.
Title
52 Chapter 01 Official Oaths and Bonds
Utah
Code Annotated, 1953, Section 52-1-2 [renumbered but unchanged from 65-0-2]
Whenever
state officers, officials or state institutions, or other persons are required
to give official bonds to the state, such bonds, unless otherwise provided,
shall be approved by the state board of examiners, and recorded by the secretary
of state in a book kept for that purpose. When so recorded the secretary of
state shall deliver the originals to the state treasurer, excepting the bond of
the state treasurer, and the treasurer shall become the legal custodian thereof,
but the bond of the state treasurer shall remain in the custody of the secretary
of state. The oaths of office of all state officials shall be filed with the
secretary of state. (C.L. 17 Sec. 4306.)
Title
52 Chapter 02 Failure to Qualify for Office
52-2-1.
Time in which to qualify -- Failure -- Office declared vacant.
Whenever
any person duly elected or appointed to any office of the state or any of its
political subdivisions, fails to qualify for such office within sixty days after
the date of beginning of the term of office for which he was elected or
appointed, such office shall thereupon become vacant and shall be filled as
provided by law. Whenever the bond of any officer of the state or of any of its
political subdivisions is canceled, revoked, annulled or otherwise becomes void
or of no effect, without another proper bond being given so that continuance of
bonded protection is afforded, the office of such officer shall thereupon become
vacant and shall be filled as provided by law. Any elected or appointed official
who has failed on the effective date of this act to qualify for the position to
which he was elected or appointed, shall be deemed to come within the provisions
of this act, and the office of such officer shall become vacant at the end of
forty days after the effective date of this act unless legal bond is given
before the expiration of such period, and such office shall be filled as
provided by law.
No
Change Since 1953
ONLY
FIVE PEOPLE HAVE FILED THE REQUIRED OATH OF OFFICE WITH THE SECRETARY OF STATE
IN THE STATE OF
NO UTAH SENATOR-ELECT HAS FILED THE REQUIRED OATH OF
OFFICE WITH THE SECRETARY OF STATE IN
NO UTAH LAWS OR CONSTITUTIONAL
AMENDMENTS HAVE BEEN ENACTED OR MADE SINCE 1974 A.D., WHEN THE UTAH
SENATORS-ELECT ALL FAILED TO FILE THE REQUIRED OATH OF OFFICE WITH THE SECRETARY
OF STATE, AND HAVE CONTINUED SUCH FAILURE UNTO THIS VERY DAY, NOVEMBER 4, 2003
A.D. OLENE SMITH
NEITHER THE REPUBLICAN NOR THE DEMOCRAT POLITICAL PARTIES HAVE
REGISTERED WITH THE SECRETARY OF STATE OF
THEREFORE,
GEORGE W. BUSH IS NOT THE DULY ELECTED PRESIDENT OF THE
NORMAN
H. BANGERTER, GORDON R. HALL, MICHAEL D. ZIMMERMAN, I. DANIEL STEWART, W. VAL
OVESON, TOM L. ALLEN, EDWARD T. ALTER, R. PAUL VAN DAM, MICHAEL O. LEAVITT,
OLENE S. WALKER, AUSTON G. JOHNSON, MARK A. SHURTLEFF AND ALL OF UTAH'S
UNOFFICIAL LEGISLATORS FROM 1974 THROUGH NOVEMBER 4, 2003 A.D., AND DAVID E.
YOCOM, E. NEAL GUNNARSON, AARON D. KENNARD AND ALL THEIR UNOFFICIAL DEPUTIES,
AND ALL OF THE UNOFFICIAL JUDGES ACTING UNDER UNOFFICIAL LAWS AND UNOFFICIAL
CONSTITUTIONAL AMENDMENTS HAVE ALL BUT COMPLETELY DESTROYED CONSTITUTIONAL
GOVERNMENT IN THE STATE OF UTAH, AND THEY NOW INTEND TO UPHOLD THE DESTRUCTION
OF THE UNITED STATES CONSTITUTION AND THE UTAH CONSTITUTION ON WEDNESDAY,
NOVEMBER 5, 2003 A.D., WITH THE UNOFFICIAL INNAUGURATION OF OLENE SMITH WALKER
AND HER UNOFFICIAL APPOINTEES.
IT
IS MY SWORN DUTY TO WARN THE PEOPLE OF UTAH AND THE UNITED STATES OF THIS
UNCONSTITUTIONAL CONDUCT BY MICHAEL O. LEAVITT, OLENE SMITH WALKER AND THEIR
REPUBLICAN AND DEMOCRAT ASSOCIATES WHO HAVE WORKED TO DESTROY OUR DIVINE
CONSTITUTION AND THE UTAH CONSTITUTION AND LAWS MADE PURSUANT THERETO, WHICH
THEY HAVE VIOLATED FOR THE LAST TWENTY NINE (29) YEARS BY FAILING TO FILE OATHS
OF OFFICE WITH THE SECRETARY OF STATE, AND FOR THE LAST FORTY (40) YEARS, BY
FINANCING THEIR UNOFFICIAL MISCONDUCT WITH COUNTERFEIT SECURITIES AND CURRENT
COIN OF THE UNITED STATES, AND THIS THEY HAVE DONE WITH THE FULL SUPPORT OF
PRESIDENT GORDON B. HINCKLEY, THE FIRST PRESIDENCY AND QUORUM OF TWELVE APOSTLES
OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, BOTH IN THEIR PERSONAL AND
OFFICIAL CAPACITIES, BRINGING THE PEOPLE OF THE STATE OF UTAH AND THE UNITED
STATES OF AMERICA INTO BONDAGE AS THE GREATEST DEBTORS IN THE WORLD, 6.861
TRILLION FALSE DOLLARS, WITH WHICH THEY FINANCE THEIR CRIMINAL ACTIVITIES IN
SUPPORT OF EXTORTION, RACKETEERING AND REBELLION AGAINST THE CONSTITUTIONAL
GOVERNMENTS OF THE UNITED STATES AND THE STATE OF UTAH.
IT
IS TREASON AT THE HIGHEST LEVELS OF CHURCH AND STATE AND MEDIA.
"WHEREFORE,
THUS SAITH THE LORD GOD, WHO IS THE ALMIGHTY, EXCEPT YE REPENT, YE SHALL BE
SMITTEN EVEN UNTO DESTRUCTION. RETURN UNTO ME AND I WILL RETURN UNTO YOU, SAITH
THE LORD GOD, WHO IS THE ALMIGHTY. BUT IF YE WILL NOT REPENT, YE SHALL BE
SMITTEN EVEN UNTO DESTRUCTION." AMEN. [GIVEN:
IF
THOSE EXERCISING THE FUNCTIONS OF PUBLIC OFFICE IN THE STATE OF
IF
THE LEADERS AND PEOPLE IN THE STATE OF UTAH ARE NOT USING GOLD AND SILVER COIN
AS LAWFUL MONEY OF THE UNITED STATES AND THE ONLY LAWFUL TENDER IN PAYMENT OF
DEBTS, THEY ARE NOT UPHOLDING THE CONSTITUTION OF THE UNITED STATES, BUT ARE, IN
FACT, IN REBELLION AND THEY ARE UPHOLDING THE CRIMINAL CONSPIRACY TO DESTROY THE
CONSTITUTION AND CONSTITUTIONAL GOVERNMENT OF THE UNITED STATES AND THE
CONSTITUTIONAL GOVERNMENTS OF ALL OF THE STATES AND TERRITORIES AND POSSESSIONS
THEREOF, AND HAVE LOST THEIR RIGHT TO VOTE, OWN PROPERTY, BE ON AN OFFICIAL
BALLOT AND HOLD PUBLIC OFFICE UNDER THE CONSTITUTION OF THE UNITED STATES. ROSS
C. ANDERSON AND FRANK R. PIGNANELLI ARE TWO SUCH INDIVIDUALS WHO HAVE REBELLED,
FAILED TO QUALIFY TO VOTE, BE ON THE OFFICIAL BALLOT AND HOLD PUBLIC OFFICE IN
ALL
PUBLIC ELECTIONS IN THE STATE OF UTAH SCHEDULED FOR NOVEMBER 4, 2003 A.D.,
INCLUDING THE ELECTION FOR MAYOR OF SALT LAKE CITY, ARE, UNOFFICIAL,
UNCONSTITUTIONAL AND VOID, WHERE THE CANDIDATES AND THE UNOFFICIAL COUNTY CLERKS
AND CITY AND TOWN RECORDERS USE COUNTERFEIT SECURITIES AND CURRENT COINS OF THE
UNITED STATES TO ATTEMPT TO QUALIFY FOR THE UNOFFICIAL BALLOTS AND ELECTION TO
OFFICE OR TO PREPARE UNOFFICIAL BALLOTS FOR THE GENERAL MUNICIPAL ELECTIONS. THE
NEWS PAPERS, RADIO AND TELEVISION STATIONS SUPPORT THE UNOFFICIAL ELECTIONS AND
ARE ALSO FINANCED WITH FALSE SECURITIES AND CURRENT COIN OF THE UNITED STATES,
AND THEY ARE ALL IN REBELLION AGAINST THE CONSTITUTION OF THE UNITED STATES.
ONLY
VOTES ON THE TRUE "OFFICIAL BALLOTS" OR "WRITE-IN VOTES" OF NON-REBELLING
CITIZENS FOR NON-REBELLING CANDIDATES ARE VALID. IN SALT LAKE CITY'S GENERAL
MUNICIPAL ELECTION, LAWRENCE REY TOPHAM IS THE ONLY CANDIDATE WHOSE NAME APPEARS
ON THE TRUE OFFICIAL ELECTION BALLOT, THEREFORE, A SINGLE VOTE FOR HIM IS
SUFFICIENT FOR VICTORY.
THIS
I TESTIFY, AS A WITNESS, AND, WITH THIS ULTIMATE WARNING, WHICH I GIVE IN THE
NAME OF THE UNITED STATES OF AMERICA, THE STATE OF UTAH, THE COUNTY OF SALT
LAKE, AND THE CITY OF SALT LAKE, AND IN THE MOST HOLY AND SACRED NAME OF JESUS
CHRIST, OUR CREATOR, OUR LORD, OUR REDEEMER, OUR BELOVED SAVIOR, OUR ELDER
BROTHER AND OUR FRIEND. AMEN.
The
above information was prepared by Lawrence Rey Topham, Secretary of State and
acting Governor of the State of Utah, on November 3rd and 4th, 2003 A.D., AS A
FORMAL PUBLIC WARNING IN DEFENSE OF THE CONSTITUTION OF THE UNITED STATES OF
AMERICA against all enemies, both foreign and domestic, WITH GOD, OUR FATHER IN
HEAVEN, AND JESUS CHRIST, AND THE HOLY GHOST AS MY WITNESSES.
Signed
and dated this 4th day of November 2003 A.D.
Lawrence
Rey Topham
Secretary of State and
Acting Governor of the
State of
BRIEF
The Right to
Travel
U.S. COURT
DECISIONS CONFIRM "DRIVING IS A RIGHT”
SPECIAL POLICE
OFFICER BULLETIN U.S. COURT DECISIONS CONFIRM, "DRIVING A MOTOR VEHICLE" IS A
CITIZENS RIGHT AND NOT A GOVERNMENT GRANTED PRIVILEGE.
For many years
Professionals within the criminal justice System have acted upon the belief that
traveling by motor vehicle upon the roadway was a privilege that was gained by a
citizen only after approval by their respective state government in the form of
the issuance of a permit or license to that Particular individual. Legislators, police officers and court
officials are becoming aware that there are now court decisions that prove the
fallacy of the legal opinion that" driving is a privilege and therefore requires
government approval, i.e. a license".
Some of these cases are:
Case # 1
- "Even the
legislature has no power to deny to a citizen the right to travel upon the
highway and transport his property in the ordinary course of his business or
pleasure, though this right may be regulated in accordance with the public
interest and convenience. -
Chicago Motor Coach v Chicago, 169 NE 22 ("Regulated" here means traffic
safety enforcement, stop lights, signs, etc. NOT a privilege that requires permission
i.e.- licensing, mandatory insurance, vehicle
registration, etc.)
Case # 2 -
"The right of the citizen to travel
upon the public highways and to transport his property thereon, either by
carriage or by automobile, is not a mere privilege which a city may prohibit or
permit at will, but a common right which he has under the right to life,
liberty, and the pursuit of happiness."- Thompson v Smith, 154 SE
579.
Case #3 -
It could not be
stated more conclusively that Citizens of the states have a right to travel,
without approval or restriction (license), and that this right is protected
under the U.S. Constitution.
Here are other court decisions that expound the same facts:
"The right to travel is a part of the
liberty of which the citizen cannot be deprived without due process of law under
the 5th Amendment." - Kent v Dulles, 357 U.S. 116, 125.
Case # 4
- "Undoubtedly
the right of locomotion, the right to remove from one place to another according
to inclination, is an attribute of personal liberty, and the right, ordinarily,
of free transit from or through the territory of any State is a right secured by
the l4th Amendment and by other provisions of the Constitution." - Schactman v Dulles, 96 App D.C. 287,
293.
FUNDAMENTAL
RIGHT As hard as it
is for those of us in Law enforcement to believe, there is no room for
speculation in these court decisions.
The American citizen does indeed have the inalienable right to use the
roadways unrestricted in any manner as long as they are not damaging or
violating property or rights of another.
Government, in
requiring the people to file for "drivers licenses, vehicle registrations,
mandatory insurance, and demanding they stop for vehicle inspections, DUI/DWI
roadblocks etc. without question, are "restricting", and therefore violating,
the Peoples common law right to travel.
Is this a new
legal interpretation on this subject of the right to travel? Apparently
not. The American Citizens
and Lawmen Association in conjunction with The U.S. Federal Law Research Center
are presently involved in studies in several areas involving questions on
constitutional law. One of the many
areas under review is the area of "Citizens right to travel." In an interview a
spokesmen stated: "Upon researching this subject over many months, substantial
case law has presented itself that completely substantiates the position that
the "right to travel unrestricted upon the nations highways" is and has always
been a fundamental right of every Citizen."
This means
that the "beliefs and opinions" our state legislators, the courts, and those of
as involved in the law enforcement profession have acted upon for years have
been in error. Researchers armed
with actual facts state that U.S. case law is overwhelming in determining that -
to restrict, in any fashion, the movement of the individual American in the free
exercise of their right to travel upon the roadways, (excluding "commerce" which
the state Legislatures are correct in regulating), is a serious breach of those
freedoms secured by the U.S.
Constitution, and most state Constitutions, i.e. - it is Unlawful.
THE REVELATION
THAT THE AMERICAN CITIZEN HAS ALWAYS HAD THE INALIENABLE RIGHT TO TRAVEL RAISES
PROFOUND QUESTIONS TO THOSE WHO ARE INVOLVED IN MAKING AND ENFORCING STATE
LAWS.
The first of
such questions may very well be - If the States have been enforcing laws that
are unconstitutional on their face, it would seem that there must be some way
that a state can legally put restrictions, such as - licensing requirements,
mandatory insurance, vehicle registration, vehicle inspections, D.W.I.
roadblocks, to name just a few, on a Citizens constitutionally protected
right. Is that not so?
For the answer
to this question let us look, once again, to the U.S. courts for a determination
on this very issue.
The case of
Hertado v. California, 110
"the assertion of federal rights, when plainly and reasonably
made, is not to be defeated under the name of local practice."- Davis v.
Wechsler, 263 U.S. 22,
24.
Would we not
say that these judicial decisions are straight to the point - that there is no
lawful method for government to put restrictions or limitations on rights
belonging to the people?
Other cases
are even more straight forward:
"Where rights
secured by the Constitution are involved, there can be no rule making or
legislation which would abrogate them."
- Miranda v. Arizona,
384 U.S. 436, 491.
“The claim and
exercise of a constitutional right cannot be converted into a crime.” -
Miller v. U.S., 230 F 2d 486, 489.
"There can be
no sanction or penalty imposed upon one because of this exercise of
Constitutional rights."- Sherar v.
Cullen, 481 F. 945. (There is no question that a
citation/ticket issued by a police officer, for no drivers license, no current
vehicle registration, no vehicle insurance etc. which carries a fine or jail
time, is a penalty or sanction, and is indeed "converting a Right into a
crime".)
We could go
on, quoting court decision after court decision, however, In addition, the
Constitution itself answers our question- "Can a government legally put
restrictions on the rights of the American people at anytime, for any
reason"? (Such as in this
particular case - when the government believes it to be for the safety and
welfare of the people).
The answer is
found in ARTICLE SIX of the U.S.
Constitution:
"This
Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; ...shall be the supreme Law of the Land; and the judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary not withstanding".
(This tells us that the U.S.
Constitution is to be upheld over any state, county, or city laws that
are in opposition to it.)
In the same
Article it goes on to say just who it is within our governments that are bound
by this Supreme Law:
"The Senators
and Representatives before mentioned, and the Members of the several State
Legislatures, and all executive and judicial Officers, both of the United States
and of the several States, shall be bound by Oath or Affirmation, to support
this Constitution;" - ART. 6,
We know that
Police officers, are a part of the Executive
branch. We are "Executive
Officers".
Article 6
above, is called the SUPREMACY CLAUSE, and it clearly states that, under every
circumstance, the above listed officials in these United States must hold this
documents tenets supreme over any other laws, regulations, or orders. Every U.
S. Police officer knows that
they have sworn an oath to the people of our nation that we will not only
protect their lives and property, but, that we will uphold, and protect their
freedoms and rights under the Supreme laws of this nation, - the U. S.
Constitution.
In this regard
then, we must agree that those within government that restrict a Citizens
rights, (such as restricting the peoples right to travel,) are acting in
violation of his or her oath of office and are actually committing a crime
against such Citizens. Here's an
interesting question. Is ignorance
of these laws an excuse for such acts by
officials?
If we are to
follow the "letter of the law (as we are sworn to do), this places officials
that involve themselves in such unlawful acts in a
unfavorable legal situation. For it
is a felony and federal crime to violate, or deprive citizens of their Constitutionally protected rights.
Our system of
law dictates the fact that there are only two ways to legally remove a right
belonging to the people. These are
- #1 - by lawfully amending the constitution, or #2 - by a person knowingly
waiving a particular right.
Some of the
confusion in our present system has arisen because many millions of people have
waived their right to travel "unrestricted" upon the roadways of the states and
opted into the jurisdiction of the state for various reasons. Those who have knowingly given up these
rights are now legally regulated by state law, the proper courts, and "sworn,
constitutionally empowered officers-of-the-law," and must acquire proper
permits, registrations, insurance, etc.
There are
basically two groups of people in this category:
#1 - Any
citizen that involves themselves in "commerce," (business for private gain),
upon the highways of the state.
Here is what
the courts have said about this:
"...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 license
which the legislature may grant or withhold at its discretion..." - State v
Johnson, 243 P. 1073, 1078.
Other U.S.
court cases that confirm and point out the difference between the "right" of the
citizen to travel and a government "privilege" are - Barney v Board of
Railroad Commissioners; State v City of Spokane, 186 P. 864; Ex
Parte Dickey (Dickey v Davis), 85 S.E. 781; Teche Lines v Danforth, 12 So.2d 784.
There are
numerous other court decisions that spell out the JURISDICTION issue in these
two distinctly different activities.
However, because of space restrictions we will leave it up to officers to
research it further for themselves.
(See last page for additional references).
#2 - The
second group of citizens that are legally under the jurisdiction of the state is
the individual citizen who has voluntarily and knowingly waived their right to
travel "unregulated and unrestricted" by requesting placement under such
jurisdiction through the acquisition of a state - drivers license, vehicle
registration, mandatory insurance, etc.
(In other words, "by contract
only".)
We should
remember what makes this "legal," and not a violation of the individuals common law right to travel "unrestricted" is that
they knowingly volunteer, freely, by contract, to waive their right. If they were forced, coerced or
unknowingly placed under the states powers, the courts have said it is a clear
violation of their rights.
This in itself
raises a very interesting question.
What percentage of the people in each state have filed, and received,
licenses, registrations, insurance etc. after erroneously being advised by their
government that it was mandatory?
Many of our
courts, attorneys and police officials are just becoming informed about this
important issue and the difference between "Privileges vs. Rights". We can assume that the majority of those
Americans carrying state licenses, vehicle registrations etc., have no knowledge
of the rights they waived in obeying laws such as these that the
OUR SWORN DUTY
An area of serious consideration for every police officer, is to understand that
the most important law in our land he has taken an oath to protect, defend, AND
ENFORCE, is not state laws, nor city or county ordinances, but, that law that
supersede all other laws in our nation, - the U.S. Constitution. If
laws in a particular police officer's state, or local
community are in conflict with the SUPREME LAW of our nation, there is no
question that the officer's duty is to "uphold the U.S.
Constitution."
What does this
mean to the "patrol officer" who will be the only sworn "Executive Officer" on
the scene, when knowledgeable Citizens raise serious objections over possession
of insurance, driver’s licenses and other restrictions? It definitely means these officers will
be faced with a hard decision.
(Most certainly if that decision affects state, city or county revenues,
such as the issuing of citations do.)
Example: If a
state legislator, judge or a superior tells a police officer to proceed and
enforce a contradictory, (illegal), state law rather than the Supreme Law of
this country, what is that "sworn officer" to do? Although we may not want to hear it,
there is but one right answer, - "the officer is duty bound to uphold his oath
of office" and obey the highest laws of the nation. THIS IS OUR SWORN DUTY AND IT'S THE
LAW!
Such a strong
honest stand taken by a police officer, upholding his or her oath of office,
takes moral strength of character.
It will, without question, "SEPARATE THE MEN FROM THE BOYS." Such honest
and straight forward decisions on behalf of a government official have often
caused pressure to be applied to force such officers to set aside, or compromise
their morals or convictions.
As a solace
for those brave souls in uniform that will stand up for law and justice, even
when it's unpopular, or uncomfortable to do so...let me
say this. In any legal stand-off
over a sworn official "violating" or "upholding" their oath of office, those
that would side with the "violation" should inevitable lose.
Our Founding
Fathers assured us, on many occasions, the following:
Defending our
freedoms in the face of people that would for "expedients sake," or behind the
guise, "for the safety and welfare of the masses," ignore peoples rights, would
forever demand sacrifice and vigilance from those that desired to remain
free. That sounds a little like -
"Freedom is not free!"
Every police
officer should keep the following
"THE CLAIM AND
EXERCISE OF A CONSTITUTIONAL RIGHT CANNOT BE CONVERTED INTO A CRIME." -
Miller v U.S., 230 F 2d 486.
489.
And as we have seen,
"traveling freely," going about ones daily activities, is the exercise of a most
basic right.
The Forgotten
Legal Maxim
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
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 license plate or registration.
DEMAND FOR DISMISSAL FOR LACK OF
JURISDICTION
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 has
been monopolized by the very entity which has been empowered to stand guard over
our freedoms, i.e., that of state government.
RIGHTS
The
"most sacred of liberties" of which
Justice Tolman spoke was personal liberty. The
definition 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 ...
"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
there from, 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
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 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 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
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.
"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 magnetudinous 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.
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 wives will need a license for her "blender" or "mixer?" They all have motors on them and
the state can always use the revenue.
POLICE
POWER
The
confusion of the police power with the power of taxation usually arises in cases
where the police power has affixed a penalty to a certain act, or where it
requires licenses to be obtained and a certain sum be paid for certain
occupations. The power used in the instant case cannot, however, be the power of
taxation since an attempt to levy a tax upon a Right would be open to
Constitutional objection. (See "taxing
power," infra.)
Each
law relating to the use of police power must ask three
questions:
"1.
Is there threatened danger?
"2. Does a
regulation involve a Constitutional Right?
"3. Is this regulation
reasonable?
People
vs. Smith,
108 Am.St.Rep. 715;
Bovier's Law Dictionary, 1914 ed., under
"Police Power"
When
applying these three questions to the statute in question, some very important
issues emerge.
First,
"is there a threatened danger" in the
individual using his automobile on the public highways, in the ordinary course
of life and business?
The
answer is No!
There
is nothing inherently dangerous in the use of an automobile when it is carefully
managed. Their guidance, speed, and noise are subject to a quick and easy
control, under a competent and considerate manager, it is as harmless on the
road as a horse and buggy.
It
is the manner of managing the automobile, and that alone, which threatens the
safety of the public. The ability to stop quickly and to respond quickly to
guidance would seem to make the automobile one of the least dangerous
conveyances. (See Yale Law Journal, December,
1905.)
"The
automobile is not inherently dangerous."
Cohens
vs. Meadow,
89 SE 876;
Blair vs. Broadmore, 93 SE 532
To
deprive all persons of the Right to use the road in the ordinary course of life
and business, because one might, in the future, become dangerous, would be a
deprivation not only of the Right to travel, but also the Right to due process.
(See "Due Process," infra.)
Next;
does the regulation involve a Constitutional Right?
This
question has already been addressed and answered in this brief, and need not be
reinforced other than to remind this Court that this Citizen does have the Right
to travel upon the public highway by automobile in the ordinary course of life
and business. It can therefore be concluded that this regulation does involve a
Constitutional Right.
The
third question is the most important in this case. "Is this regulation reasonable?"
The
answer is No!
It will be shown later in "Regulation," infra, that this licensing
statute is oppressive and could be effectively administered by less oppressive
means.
Although
the Fourteenth Amendment does
not interfere with the proper exercise of the police power, in accordance with
the general principle that the power must be exercised so as not to invade
unreasonably the rights guaranteed by the United States Constitution, it is
established beyond question that every state power, including the police power,
is limited by the Fourteenth
Amendment (and others) and by the inhibitions there imposed.
Moreover,
the ultimate test of the propriety of police power regulations must be found in
the Fourteenth Amendment,
since it operates to limit the field of the police power to the extent of
preventing the enforcement of statutes in denial of Rights that the Amendment
protects. (
"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
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
Yick Wo vs.
and
...
"The
right to travel is part of the
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 traveling
freely upon the highways..."
Washington
A.G.O. 59-60 No. 88, Pg. 11
This
alarming opinion appears to be saying that every person using an automobile as a
matter of right, must give up the Right and convert the Right into a privilege.
This is accomplished under the guise of regulation. This statement is indicative
of the insensitivity, even the ignorance, of the government to the limits placed
upon governments by and through the several constitutions.
This
legal theory may have been able to stand in 1959; however, as of 1966, in the
United States Supreme Court decision in Miranda, even this weak defense
of the state's actions must fall.
"Where rights secured by the Constitution are
involved, there can be no rule making or legislation which would abrogate them."
Miranda
vs.
Thus
the legislature does not have the power to abrogate the Citizen's Right to
travel upon the public roads, by passing legislation forcing the citizen to
waive his Right and convert that Right into a privilege. Furthermore, we have
previously established that this "privilege" has been defined as applying
only to those who are "conducting
business in the streets" or "operating for-hire vehicles."
The
legislature has attempted (by legislative
fiat) to deprive the Citizen of his Right to use the roads in the ordinary
course of life and business, without affording the Citizen the safeguard of "due process of law." This has been
accomplished under supposed powers of regulation.
REGULATION
"In
addition to the requirement that regulations governing the use of the highways
must not be violative of constitutional guarantees, the prime essentials of such
regulation are reasonableness, impartiality, and definiteness or
certainty."
25
Am.Jur.
(1st) Highways, Sect. 260
and
...
"Moreover,
a distinction must be observed between the regulation of an activity which may
be engaged in as a matter of right and one carried on by government sufferance
of permission."
Davis
vs. Massachusetts,
167
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.)
3.
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
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.
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
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. (
The
history of this "invasion" of the
Citizen's Right to use the public highways shows clearly that the legislature
simply found a heretofore untapped source of revenue, got greedy, and attempted
to enforce a statute in an unconstitutional manner upon those free and natural
individuals who have a Right to travel upon the highways. This was not attempted
in an outright action, but in a slow, meticulous, calculated encroachment upon
the Citizen's Right to travel.
This
position must be accepted unless the prosecutor can show his authority for the
position that the "use of the road in the
ordinary course of life and business" is a privilege.
To
rule in any other manner, without clear authority for an adverse ruling, will
infringe upon fundamental and basic concepts of Constitutional law. This
position that a Right cannot be regulated under any guise, must be accepted without concern for the monetary loss
of the state.
"Disobedience
or evasion of a Constitutional Mandate cannot be tolerated, even though such
disobedience may, at least temporarily, promote in some respects the best
interests of the public."
Slote
vs. Examination,
112 ALR 660
and
...
"Economic
necessity cannot justify a disregard of Constitutional guarantee."
Riley
vs. Carter,
79 ALR 1018;
16 Am.Jur. (2nd), Const. Law, Sect.
81
and
...
"Constitutional
Rights cannot be denied simply because of hostility to their assertions and
exercise; vindication of conceded Constitutional Rights cannot be made dependent
upon any theory that it is less expensive to deny them than to afford them."
Watson
vs. Memphis,
375 US 526
Therefore,
the Court's decision in the instant case must be made without the issue of cost
to the state being taken into consideration, as that issue is irrelevant. The
state cannot lose money that it never had a right to demand from the "Sovereign People."
Finally,
we come to the issue of "public
policy." It could be argued that the "licensing scheme" of all persons is a
matter of "public policy." However,
if this argument is used, it too must fail, as:
"No
public policy of a state can be allowed to override the positive guarantees of
the U.S. Constitution."
16
Am.Jur.
(2nd), Const. Law, Sect. 70
So
even "public policy" cannot abrogate
this Citizen's Right to travel and to use the public highways in the ordinary
course of life and business.
Therefore,
it must be concluded that:
"We
have repeatedly held that the legislature may regulate the use of the highways
for carrying on business for private gain and that such regulation is a valid
exercise of the police power."
Northern
Pacific R.R. Co.,
supra.
and
...
"The
act in question is a valid regulation, and as such is binding upon all who use
the highway for the purpose of private gain."
Ibid.
Any
other construction of this statute would render it unconstitutional as applied
to this Citizen or any Citizen. The Accused, therefore, moves this court to
dismiss the charge against him, with prejudice.
February
23, 2005 A.D.
_____________________
Thomas
B Ginter
Sovereign
Citizen
State
of Heaven
In
addition:
Since
no notice is given to people applying for driver's or other licenses that they have a
perfect right to use the roads without any permission, and that they surrender
valuable rights by taking on the regulation system of licensure, the state has
committed a massive construction fraud. This occurs when any person is told that
they must have a license in order to use the public roads and highways.
The
license, being a legal contract under which the state is empowered with policing
powers, is only valid when the licensee takes on the burdens of the contract and
bargains away his or her rights knowingly, intentionally, and voluntarily.
Few
know that the driver's license is a contract without which the police are
powerless to regulate the people's actions or activities.
Few
(if any) licensees intentionally surrender valuable rights. They are told that
they must have the license. As we have seen, this is not the case.
No
one in his or her 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)
Thomas B. Ginter,
Jr.
Personally Subscribed before me. Thomas
B. Ginter
Sovereign
Citizen
Secretary of State
State
of
CERTIFICATE
OF SERVICE
The
accused, Thomas B. Ginter, Jr., hereby certifies that he hand delivered a true
and correct copy of the foregoing Demand, Brief and Memorandum of law to the
prosecutor in the court room of the West Valley City Unofficial Municipal
Justice Court located at:
(801)963-3500
Date of Service:
Thomas B. Ginter,
Jr.
Thomas B. Ginter,
Jr.