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TO THE COUNTY COURT OF SARPY COUNTY, NEBRASKA
State of Nebraska, ) CR/TR 11-5285
Paul John Hansen, ) Motion for
Accused. ) Judicial Notice
This Court is to take judicial notice of the following case president, United State written laws, and State law below as evidence of law. A right in one State of the US must be a right in all.
All states of the Union, 50 states are of US jurisdiction, one jurisdiction, one written law, below is evidence of law:
State of Ohio Revised Code-
4507.04 Nonresident exemption.
Nonresidents, permitted to drive upon the highways of their own states, may operate any motor vehicle upon any highway in this state without examination or license under sections 4507.01 to 4507.39, inclusive, of the Revised Code, upon condition that such nonresidents may be required at any time or place to prove lawful possession, or their right to operate, such motor vehicle, and to establish proper identity.
Effective Date: 10-01-1953
Hansen’s own state is independent of the State of Nebraska, as a free inhabitant, as a non-US citizen. Hansen was in right of operate act.
MacPherson v Buick Motor Co. Court of Appeals of New York, 1916 , 217 NY 382
“an automobile is not an inherently dangerous vehicle.”
(e) Title 18, U.S. Code, Section 31, Definitions (extract):
(a)(6) Motor vehicle. – The term ”motor vehicle” means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, passengers and property, or property or cargo.
(a)(10) Used for commercial purposes. – The term ”used for commercial purposes” means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit.”
Hansen is evidenced as a not for hire act, non-commercial. Therefore acting in a right.
“Acts–one subject–expressed in title. Section 29. Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” —Constitution of the State of Iowa, Source: Iowa Official Register, 1999-2000, Secretary of State, Iowa, page273.
Iowa law is the same as Nebraska, no evidence exists in the Nebraska Motor Vehicle written law as promulgating the act associated with the Motor Vehicle Code as to “not for hire”, as was Hansen’s activity.
“The public have a right of free and unobstructed transit over streets, sidewalks and alleys, and this is the primary and appropriate use to which they are generally dedicated.” Pugh v. City, 176 Iowa 593, 599
“The right to make use of an automobile as a vehicle of travel along the highways of the state, is no longer an open question. The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling in some other vehicle.” House v Cramer, 112 N.W. 3; 134 Iowa 374.
13. 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, who 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.
14. Justice Tolman was concerned about the State prohibiting a man 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. In the pre World War 2 era the Hitler movement banned travel without state license.
15. The “most sacred of liberties” of which Justice Tolman spoke was personal liberty.
“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.
“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 horsedrawn 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.
16, When the State allows the formation of a corporation (a legal fiction) 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 right to travel and the use of the same highway for business gain.
“…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 657l, 168, p.516.
19. Here are some early cases and legal authority dealing with this Right or “privilege.”
a. “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.
b. “The claim and exercise of a Constitutional Right cannot be converted into a crime.” Miller vs. U.S., 230 F. 486, 489.
c. “There can be no sanction or penalty imposed upon one because of this exercise of Constitutional Rights.” Sherer vs. Cullen, 481 F. 946.
d. “Regulations, fees, taxes….may not be applied to natural person using common highways as it is in derogation of common right of public to use highways as an avenue upon which vehicles for transportation of goods, passengers, freight and traffic of all kinds may be feely moved, having due regard for rights of others, while this, or other provisions of statute, should be fairly, liberally construed to promote the effect the evident purpose for which it was intended care should be exercised not to unduly extend its effect.” Young v Madison County, 115 N.W. 23.
e. “This right of the people in the [use of] streets and highways of the State, whether inside or outside the municipalities thereof, is a paramount right.” Peoples Gas Light & Coke Co v. City of Chicago, 109 N.E.2d 777,781
f. “Our society is builded in part upon the free passage of men and goods, and the public streets and highways may rightfully be used for travel by everyone.” Hanson v. Hall, 202 Minn. 381, 383
g. “Our court has stressed the basic right of the transient public and abutting property owners to the free passage of vehicles on public highways and the paramount function of travel as overriding all other subordinate uses of our streets.” State v. Perry, 269 Minn. 204,206
h. “A highway is a passage road or street which every citizen has a right to use.” Ohio, Indiana, & W. RR Co v People 39 Ill.App.473 Though Hansen is not a citizen he has the same right as a free inhabitant.
i. “The right to travel over a street or highway is a primary absolute right of everyone.” Foster’s Inc. v. Boise City, 118 P.2d 721,728.
j. “There can be no denial of the general proposition that every citizen of the United States, and every citizen of each State of the Union, as an attribute of personal liberty, has the right ordinarily, of free transit from, or through the territory of any State. This freedom of egress or ingress in guaranteed to all by the clearest implications of the Federal, as well as of the State Constitution. It has been said that even in England, whence our system of jurisprudence is derived, the right to personal liberty did not depend on any express statue, but ‘it was the birthright of every freeman.’ — Cooley’s Const. Lim. 342. This right was said by Sir William Blackstone to consist in ‘the power of locomotion, of changing situation, or of moving one’s person to whatsoever place one’s inclination may direct, without imprisonment, or restraint, unless by due process of law.’” 1 Bl.Com. 134. Joseph v Randolph, 71 Ala. 499, 504-505.
k. “It is settled that the streets of a city belong to the people of a state and the use thereof is an inalienable right of every citizen of the state.” Whyte v. city of Sacramento, 65 Cal. App.534, 547.
l. “This right of the people to use of the public streets of a city is so well established and so universally recognized in this country, that it has become a part of the alphabet of fundamental rights of the citizen.” “Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or elctric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all those requirements that are known as the law of the road.” Swift v. Topeka, 43 Kan. 671, 674.
m. “The right to travel is part of the Liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendment.” Kent v. Dulles, 357 U.S. 116,125.
n. “A highway is a public way open and free to any one who has occasion to pass along it on foot or with any kind of vehicle.” Schlesinger v City of Atlanta, 129 S.E. 861, 867; 161 Ga.148,159; Holland v Shackelford, 137 S.E.2nd 298, 304, 220 Ga.104; Stavola v Palmer, 73 A.2d 831,838, 136 Conn 670.
o. ”The right of a citizen to travel upon the public highways… 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 purposes of life and business. ….. The rights aforesaid, being fundamental, are Constitutional rights.” Teche Lines v Danforth, 12 So.2d 784, 787 (Miss, 1943). See also Thompson v Smith, 154 S.E. 579.
p. “By the ‘absolute right’ of individuals is meant those which are so in their primary and strictest sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. The rights of personal security, of personal liberty, and private property do not depend upon the Constitution for their existence. They existed before the Constitution was made, or the government was organized. These are what are termed ‘absolute rights’ fo individuals, which belong to them independently of all government, and which all governments which derive their power from the consent of the governed were instituted to protect.” People v Berberrich N.Y., 20 Barb. 224,229. McCartee v Orphan Asylum Soc. N.Y., Cow 437; 511, 513; People v Toynbee N.Y. 2 Parker, Cr.R. 329, 369,370.
q. “…the right of the citizen to drive on a public street with freedom from police interference…is a fundamental Constitutional right.” People v Horton, 14 Cal.App.3d 930, 92 Cal. Rptr. 666, 668 (1971)
r. “No state shall convert a liberty into a privilege, license it, and attach a fee to it.” Murdock v Penn., 318 U.S. 105.
s. “The right of every citizen to live where he chooses and to travel freely not only within the state but across its borders is a fundamental right.” Donnelly v. City of Manchester, 111 N.H 50, 274 A.2d 789,791 (1971)
20. 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.
a. “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…
b. “The right of a 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 his 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 purposes of life and business. It is not a mere privilege, like the privilege of moving a house in the street, operating a business stand in the street, or transporting persons or property for hire along the street, which a city may permit or prohibit at will.” Thompson vs. Smith, 154 SE 579.
21. So we can see that a man has a Right to travel upon the public highways by automobile and 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; Hadfield, supra; Cummins vs. Jones, 155 P. 171; Packard vs. Banton, 44 S.Ct. 256; and other cases too numerous to mention.
22. Here the court held that a man 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.
a. “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.” Barney vs. Board of Railroad Commissioners, 17 P.2d 82; Willis vs. Buck, 263 P.l 982, and…
b. “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.
23. What is this Right of the Citizen which differs so “radically and obviously” from one who uses the highway as a place of business? Again, 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.
Rights can not be regulated, taxed, or limited.
24. 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.” Teche Lines vs. Danforth, Miss., 12 S.2d 784; Thompson vs. Smith, supra.
25. 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, p.987.
26. 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. Binford, 287 US 251; Packard vs Banton, 264 US 140, and cases cited; Frost & Frost 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.
27. 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 regulatable privilege. The distinction must be drawn between… (1) travelling upon and moving 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.
a. “[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.
b. “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.” Barney vs. Railroad Commissioners, supra.
c. “[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.
d. “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.
Hansen was receiving no payment for in conjunction to the use of the highway.
28. There should be considerable authority on a subject as important as 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, Declarant does have the “Right” to travel and move his property upon the public highways and roads and the exercise of this Right is not a “privilege.”
29. In order to understand the correct application of the statutes 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.
30. AUTOMOBILE AND MOTOR VEHICLE
a. There is a clear distinction between an automobile and a motor vehicle: “The word `automobile’ connotes a pleasure vehicle designed for the transportation [movement] of persons on highways,” American Mutual Liability Ins. Co., vs. Chaput, 60 A.2d 118, 120; 95 NH 200.
b. 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.
c. “The term `motor vehicle’ is different and broader than the word `automobile.’” City of Dayton vs. DeBrosse, 23 NE.2d 647, 650; 62 Ohio App. 232.
d. The distinction is made very clear in Title 18 USC 31:
(6) “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.”
(10) “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.”
“State law, even if based on acknowledged police power of the state, must always yield, in case of conflict with the exercise by the general (i.e. federal) government of any power it possesses under the laws and Consititution or with any right which the government gives or secures.” State v District Court, 239 P.2d 272.
e. Accordingly, the state definition of “motor vehicle” must yield to the federal definition. And, clearly, an automobile is private property in use for private purposes, while a motor vehicle is a machine which used upon the highways for trade, commerce, or hire
a. “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, p.717.
b. “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.
c. “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.
d. Therefore, the term “travel” or “traveler” refers to one who uses a conveyance to go from one place to another, and includes 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 movement is a traveler.
a. 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. Also Black’s Law Dictionary, rev 4th Ed, 1968, p 585.
b, Notice that this definition includes one who is “employed” in conducting a vehicle. It should be self-evident that this person could not be “travelling” on a journey, but is using the road as a place of business.
a. 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.
b. 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 moving 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.
a. “noun. Commerce; trade; the sale or exchange of such things as merchandise, bills, and money. The passing or exchange of goods or commodities from one person to another for an equivalent in goods or money. People or things being transported along a route. The passing to and fro of people, animals, vehicles, and vessels along a transportation route.” And also: “verb: To trade or deal in (goods, esp. illicit drugs or other contraband). –Black’s Law Dictionary, 7th Ed, 1999, page 1502;
b. “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. Notice that this definition refers to one “conducting business.” No mention is made of one who is travelling in his automobile. This definition is of one who is engaged in the passing of a commodity or goods in exchange for money, i.e.., vehicles for hire. Furthermore, the word “traffic” and “travel” must have different meanings which the courts recognize. The difference is recognized in Ex Parte Dickey, supra:
“…in addition to this, cabs, hackney coaches, omnibuses, taxicabs, and hacks, when unnecessarily numerous, interfere with the ordinary traffic and travel and obstruct them.”
c. “…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.
d. 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.
e. 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 a 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.
f. Here the Supreme Court of the State of Washington has defined the word “traffic” (in either its primary or secondary sense) in reference to business, and not to mere travel! So it is clear that the term “traffic” is business related and therefore, it is a “privilege.” The net result being that “traffic” is brought under the (police) power of the legislature. The term has no application to one who is not using the roads as a place of business.
a. “The permission, by competent authority to do an act which without permission, would be illegal, a trespass, or a tort.” People vs. Henderson, 218 NW.2d 2, 4. “Leave to do a thing which licensor could prevent.” Western Electric Co. vs. Pacent Reproducer Corp., 42 F.2d 116, 118.
b. In order for these two definitions to apply in this case, the state would have to take up the position that the exercise of a Constitutional Right to use the public roads in the ordinary course of life and business is illegal, a trespass, or a tort, which the state could then regulate or prevent. This position, however, would raise magnitudinous Constitutional questions as this position would be diametrically opposed to fundamental Constitutional Law. (See “Conversion of a Right to a Crime,” infra.) In the instant case, the proper definition of a “license” is:
“a permit, granted by an appropriate governmental body, generally for consideration, to a person, firm, or corporation, to pursue some occupation or to carry on some business which is subject to regulation under the police power.” Rosenblatt vs. California State Board of Pharmacy, 158 P.2d 199, 203. This definition would fall more in line with the “privilege” of carrying on business on the streets.
c. 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.
d. 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 investigation, 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 need a license for a kitchen “blender” or “mixer?” They all have motors on them and the state can always use the revenue.
36. POLICE POWER
a. 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 is 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; Bouvier’s Law Dictionary, 1914 ed., under “Police Power.”
b. 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.
c. 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.)
d. Next, does the regulation involve a Constitutional Right? This question has already been addressed and answered in this memorandum, and need not be reinforced other than to remind this Court that this Declarant does have the Right to travel unlicensed, and untaxed 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.
e. 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.
f. 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 Constitution for the United States of America, it is established beyond question that every state power, including the police power, is limited by the Fourteenth Amendment (and others) and by the inhibitions there imposed. Moreover, the ultimate test of the propriety of police power regulations must be found in the Fourteenth Amendment, since it operates to limit the field of the police power to the extent of preventing the enforcement of statutes in denial of Rights that the Amendment protects. (See Parks vs. State, 64 NE 682.)
(1) “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.
(2) “The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution,” Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613; Bacahanan vs. Wanley, 245 US 60.
(3) “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.
(4) “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.
(5) 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.
g. 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, artificial persons, and individual men/women alike, has deprived this free Man of the Right of Liberty, without cause and without due process of law.
37. DUE PROCESS
“The essential elements of due process of law are…Notice and The Opportunity to defend.” Simon vs. Craft, 182 US 427.
a. Yet, no man or woman has been given notice of the loss of his/her Right, let alone before signing the license. Nor was anyone given opportunity to defend against the loss of his/her right to travel, by automobile, on the highways, in the ordinary course of life and business. This amounts to an arbitrary deprivation of Liberty.
“There should be no arbitrary deprivation of Life or Liberty…” Barbour vs. Connolly, 113 US 27, 31; Yick Wo vs. Hopkins, 118 US 356, and…
“The right to travel is part of the Liberty of which a citizen cannot be deprived without due process of law under the Fifth Amendment. This Right was emerging as early as the Magna Carta.” Kent vs. Dulles, 357 US 116 (1958).
b. 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 creates an injured party (a tort, a crime) there is no cause for interference in the private affairs or actions of this Declarant.
c. 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.)
d. 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 correct citation and opportunity lacks all the attributes of a judicial determination; it is judicial usurpation, is oppressive, and can never be upheld where it is lawfully administered. (12 Am.Jur. [1st] Const. Law, Sect.573, p.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.”
“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.
e. Thus the legislature does not have the power to abrogate the Declarant’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.”
“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 US 43; Packard vs. Banton, supra.
a. 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 a statute requiring “all persons” [all men?] 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 of the people to give up their natural Right to travel unrestricted in order to accept the privilege. The purported goal of this statute could be met by much less oppressive regulations, i.e., competency tests and certificates of competency before using an automobile upon the public roads. (This is exactly the situation in the aviation sector.) But isn’t this what we have now? The answer is No! The real purpose of this license is much more insidious. When one signs the license, he gives up his Constitutional Right to travel in order to accept and exercise a privilege. After signing the license, a quasi-contract, a man has to give the state his consent to be prosecuted for constructive crimes and quasi-criminal actions where there is no harm done and no damaged property.
b. These prosecutions take place without affording a man his Constitutional Rights and guarantees, such as the Right to a trial by jury of twelve men, 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 man is exercising a privilege and has given his “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 a man 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.
39. SURRENDER OF RIGHTS
a. A man cannot be forced to give up his 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.
b. 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.
c. 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 man of his Rights guaranteed by the United States of America and the state Constitutions.
40. TAXING POWER
a. Any claim that this statute is a taxing statute is 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.
b. The views advanced herein are neither novel nor unsupported by authority. The question of taxing power of the states has been repeatedly considered by the Supreme Court.
“The Right of the state to impede or embarrass the Constitutional operation of the U.S. Government or the Rights which the Citizen holds under it, has been uniformly denied.” McCulloch vs. Maryland, 4 Wheat 316.
c. 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.
(1) “…It may be said that a tax of one dollar for passing through the state cannot sensibly affect any function of government or deprive a Citizen of any valuable Right. But if a state can tax…a passenger of one dollar, it can tax him a thousand dollars.” Crandall vs. Nevada, 6 Wall 35, 46, and…
(2) “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., p.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.
41. CONVERSION OF A RIGHT TO A CRIME
a. As previously demonstrated, a man has the Right to travel and to move his property upon the public highways in the ordinary course of life and business. However, if a man exercises this Right to travel (without first giving up the Right and converting that Right into a privilege) he 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 Sherer vs. Cullen quotes from p.2,3, 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.
b. 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 man 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 appeal a “guilty verdict” on “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 a man’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.
42. 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 man cannot be deprived without specific cause and without the “due process of law” guaranteed in the Fifth Amendment. (Kent, supra.)
43. The history of this “invasion” of the people’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 sentient men and women 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 peoples Right to travel. This position must be accepted unless the prosecutor and this Court can show its 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.
44. Wherefore, 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.”
45. Finally, we come to the issue of “public policy.” It could be argued that the “licensing scheme” of all men 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.
46. So even “public policy,” which is fiction, cannot abrogate this Man’s Right to travel and to use the public highways in the ordinary course of life and business without restriction and taxation. 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.
47. Any other construction of this statute would render it unconstitutional as applied to this Declarant or any other man. The Declarant committed no crime, there are no injured parties or complaining parties with common law and/or statute standing.
The Declarant therefore moves this court to vacate the false “guilty verdict” of the charge against his legal fiction and/or counterfeit with prejudice.
48. 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 constructive fraud. This occurs when any man is told that he must have a license in order to use the public roads and highways in private travel in a private automobile. 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 right mind voluntarily surrenders complete liberty and accepts in its place a set of regulations.
49. No state legislator has power to enact laws requiring the people, who are the political trustors, to have driver licenses issued by an instrumentality of the state government, nor register their vehicles with any such instrumentality, nor have vehicular insurance, nor any like kind of licensure schemes, and terms and conditions which must be fulfilled before the individual man, aka political trustor and political beneficiary, may use the public roads merely held in political trust by state political trustees for his private pleasure and business.
50. There can be no lawmaking, rule making, or rulings which require the sovereign man to obtain permission of any office holder or instrumentality of state or local government in order to use the public highways for his private personal or business travel.
“The people never give up their liberties but under some delusion.” Edmund Burke, 1784.
Date: 7-17-2013 ______________________
Paul John Hansen
Evidence of Law- Offered ____ Received ____ Exhibit ______
25-12,101. Judicial notice. Nebraska State Statutes -
Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States.
Laws 1947, c. 93, § 1, p. 272.
25-12,107. Short title.
Sections 25-12,101 to 25-12,107 may be cited as the Uniform Judicial Notice of Foreign Law Act.
Laws 1947, c. 93, § 7, p. 273.
Sections 25-12,101 to 25-12,107 shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of those states which enact them.
Laws 1947, c. 93, § 6, p. 273.
25-12,105. Foreign country.
The law of a jurisdiction other than those referred to in section 25-12,101 shall be an issue for the court, but shall not be subject to the foregoing provisions concerning judicial notice.
Laws 1947, c. 93, § 5, p. 273.
Laws of a jurisdiction other than state or territory of the United States must be both pleaded and proved. Scott v. Scott, 153 Neb. 906, 46 N.W.2d 627 (1951).
Note – The Bible is a jurisdiction foreign to the US, yet is recognized as foreign law, and can be noticed in a US court proceeding, especially if the location of the act is not a territory or possession of the United States.