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Tag Archives: Title 18

Court (Relation Back Doctrine – Defeats Summary Administrative Process) Part 2

11 Wednesday Jul 2012

Posted by eowyndbh in Uncategorized

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choate lein, Federal Debt Collection Procedure, inchoate lien, Internal Revenue Code, IRS Liens, levy authority, lien authority, Lien for taxes, Notice of seizure, relation back-defined, relation-back doctrine, statutory lien, Title 18, Title 26, U.S. v. Ball Costruction Co., United States v. City of New Britain, United States v. Real Property at 2659 Roundhill Drive, Walker v. Paramount Engineering Co.

(For Frank ‘Austin’ England III) 
 

Section 6321 of the Internal Revenue Code, which gives rise to what is commonly described as a statutory lien, is obviously subject to the common-law relation-back doctrine:

Sec. 6321. Lien for taxes.
If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.

Likewise, 26 U.S.C. § 6331(a), the basic authority for levy and distraint, is subject to the common-law relation-back doctrine:

Sec. 6331. Levy and distraint

(a) Authority of Secretary.

If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax.  Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer (as defined in section 3401(d)) of such officer, employee, or elected official.
If the Secretary makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section. [Underscore added for emphasis]

(Foot Note 3)

Contrary to appearance of the two Code sections, the government’s interest in property, either for purposes of lien or levy, does not attach to or encumber rights, title or interest until the appropriate judicial action is initiated. This principle was articulated by the Ninth Circuit Court of Appeals (March 18, 2002) in United States of America v. Real Property At 2659 Roundhill Drive, Alamo, California , No. 00-16772.

As was the case for the Buena Vista decision by the Supreme Court, the Roundhill case was drug-related. In this particular instance, part of the property purchase price was allegedly money derived from drug trafficking, but a healthy sum was also borrowed from a financial institution. When the government attempted to forfeit the property, the financial institution perfected its claim as the superior lien holder, the mortgage lien having been filed at the time the property was purchased. The financial institution subsequently held a non-judicial foreclosure sale; an investment group purchased the property at the auction. In the interim, the government filed a lis pendens (pending litigation notice) in the United States District Court. In spite of the lis pendens, the financial institution proceeded with sale and the investment group made the purchase. The government subsequently attempted to forfeit the property in an in rem action (admiralty/maritime). The district court judge ruled in favor of the government; the Ninth Circuit, basing its decision on the 1993 Buena Vista decision, ruled against the government:

The district court ruled that (1) the government’s acquiescence in the foreclosure sale did not constitute a release of its forfeiture interest in the property; (2) the government’s interest vested prior the purchasers’ interest by virtue of 21 U.S.C. § 881(h), n4 the forfeiture statute’s “relation back” provision; and (3) the purchasers were not “innocent owners “since the notice of lis pendens was sufficient to alert them to the forfeiture proceedings. While the forfeiture action was pending, the purchasers sold the property (with the court’s approval) and placed the proceeds in escrow. The district court granted summary judgment to the United States, which left the purchasers sustaining a net loss on their investment in the Roundhill property. The purchasers appealed.
We reversed, holding that the government had no legal interest in the property. United States v. 2659 Roundhill Drive, 194 F.3d 1020, 1027 (9th Cir. 1999) (“Roundhill I”). We applied United States v. 92 Buena Vista Ave., 507 U.S. 111 (1993), which held that the relation-back rule of 21 U.S.C. § 881(h) cannot be invoked until a final judgment of forfeiture has been entered; the United States had never obtained a final judgment. Therefore, according to Buena Vista, the government’s interest in the Roundhill property could not have related back to 1974 (when the Paytons engaged in drug trafficking), but rather dated back only to October 19, 1994, when it recorded its lis pendens. Since the lis pendens was recorded after the date World recorded its deed of trust (which also was the effective date of the purchasers’ interest) the government’s interest was extinguished by normal operation of long-standing California foreclosure law. n5 Thus, the purchasers took title to the property free and clear of the government’s interest. Roundhill I, 194 F.3d at 1027.

The in rem action is against the thing, the res, where so-called civil actions are against the party who is allegedly liable. The Internal Revenue Code segregates the two forms of action at 26 U.S.C. §§ 7323 & 7404:

Sec. 7323. Judicial action to enforce forfeiture.

(a) Nature and venue.
The proceedings to enforce such forfeitures shall be in the nature of a proceeding in rem in the United States District Court for the district where such seizure is made.

Sec. 7402. Jurisdiction of district courts.
(a) To issue orders, process, and judgments.
The district courts of the United States at the instance of the United States shall have such jurisdiction to make and issue in civil actions, writs and orders of injunction, and of ne exeat republica, orders appointing receivers, and such other orders and processes, and to render such judgments and decrees as may be necessary or appropriate for the enforcement of the internal revenue laws. …

The two sections cited above specify the two forms of judicial action federal government has available when and if there is an act or omission contrary to internal revenue laws of the United States. Even though any given Code section may give rise to an interest, the interest isn’t perfected until there is a judgment from a court of competent jurisdiction. The interest is perfected via the judgment, but it dates to the act or omission that gave rise to the interest. This is the essence of relation-back doctrine, which is a common-law doctrine that predates the Constitution of the United States.

The definition of “relation back” in Black’s Law Dictionary, Sixth Edition, is useful in understanding the relation of the original act to the time of a judgment perfecting a statutory lien:

Relation Back. General rule of “relation back” is that a pleading may not be amended to allege a new or different claim or defense unless it arose out of, or is based on or related to, claim, transaction or occurrence originally set forth or attempted to be set forth. [Cites omitted]
A principle that an act done today is considered to have been done at an earlier time. A document held in escrow and finally delivered is deemed to have been delivered as of the time at which it was escrowed.

Where actions filed in courts of law are concerned, the principle more or less says, “You can’t change horses in the middle of the stream.” The second definition more closely characterizes the lien process. Internal Revenue Code § 6321 is the primary section that gives rise to statutory liens where there is a failure to perform, and the date of lien existence is determined by the date of non-performance, but only after there is a judgment for a delinquent tax debt (Federal Debt Collection Procedure Act, 28 U.S.C. § 3201). The lien is choate, or perfected, after judgment; it is inchoate or unperfected prior to judgment. Definitions from Black’s Law Dictionary, Sixth Edition, are again useful:


Choate lien.
Lien which is perfected so that nothing more need be done to make it enforcible. Identity of lienor, property subject to lien and amount of lien are all established. Walker v. Paramount Engineering Co., C.A.Mich., 353 F.2d 445, 449; United States v. City of New Britain, Conn., 347 U.S. 81, 74 S.C. 367, 369, 98 L.Ed. 520. The lien must be definite and not merely ascertainable in the future by taking further steps. Gower v. State Tax Commission, 207 Or. 288, 295 P.2d 162.

Inchoate. Imperfect; partial; unfinished; begun, but not completed; as a contract not executed by all the parties. State ex rel. McCubbin v. McMillian, Mo.App., 349 S.W.2d 453, 462.

A federal tax lien, i.e., a “notice of lien,” that is issued prior to there being a judgment to perfect the lien is at best inchoate. It is incomplete, imperfect:

Under the law of California as declared in Puissegur v. Yarbrough, 29 CAL. 2D 409, 412, 175 P.2D 830, 831-832, an attaching creditor obtains “only a potential right or a contingent lien” until a judgment perfecting the lien is rendered, and that meanwhile, the lien is contingent or inchoate – merely a lis pendens notice that a right to perfect a lien exists. Id, At 50. U.S. v. Ball Construction Co., 355 U.S. 587

The United States Attorney’s Manual confirms this same principle with respect to notices of lien issued by the Internal Revenue Service. The notice must include the abstract of judgment on the back of the Form 668-Y used as the notice of federal tax lien:

3-10.200 Civil Postjudgment Financial Litigation Activity – Perfecting the Judgment

Immediately following expiration of the 10-day automatic stay after entry of the judgment (whether by default, stipulation, court determination, or by the referral of a judgment from another district), see Fed. R. Civ. P. 62(a), immediate action shall be taken to perfect the judgment as a lien in accordance with the Federal Debt Collection Procedures Act. See 28 U.S.C. § 3201.

Special care should be taken to ensure that the judgment is perfected as a lien by filing a certified copy of the abstract of the judgment in the manner in which a notice of tax lien would be filed under paragraphs (1) and (2) of § 6323(f) of the Internal Revenue Code of 1986. A lien should be filed in accordance with state law filing requirements and should be filed in any state where the debtor owns real property.

6-8.000 POST-JUDGMENT COLLECTION MATTERS
6-8.400 Differences Between Tax Judgments and Other Civil Judgments – Collection Procedures
The Tax Division’s Judgment Collection Manual should be consulted for an in depth discussion of special procedures for the collection of tax judgments that are not available for, or are different from, the procedures for collecting other judgments in favor of the United States. For example, an IRS levy can be used to collect a tax judgment; the state exemption statutes are inapplicable to tax judgments; federal tax liens have special characteristics; and post-judgment interest on tax judgments accrues at a different rate than the normal judgment rate and is compounded daily. [Underscore added for emphasis]

Although it is rarely if ever completed, the Form 668-Y has a designated space on the back for the abstract of judgment. The purpose of the abstract is to enable interested parties to locate the judgment so they can review particulars. Unless the notice has the abstract on the back, the paper trail necessary to verify that there is a judgment and the nature, amount and object of the judgment is incomplete. If the document is incomplete with respect to essential elements, or includes vague or misleading information, it is an uttered instrument.

(Foot Note 4 and 5)

Since promulgation of the Internal Revenue Code of 1954, the Form 668-B Levy has been the proper form for legitimate levies. The “notice of levy” merely conveys information and is supposed to provide notice to the party a levy is executed against, not third parties.5 The notice of levy, which is commonly sent to third-party custodians of financial assets, is not an enforceable levy instrument. The Form 668-B Levy must be accompanied by the applicable writ issued from a court of competent jurisdiction in order for it to be enforceable – third-party custodians are supposed to receive the actual levy and writ.
In the criminal forfeiture handbook, the Internal Revenue Manual acknowledges effect of relation-back doctrine at § [9.7] 14.17.6 (04-30-1998):
6. The Relation Back Doctrine maintains that property is actually forfeited at the time it is used illegally, unless the statute states otherwise. At that instant, all rights and legal title to the asset pass to the government. Seizure and formal proceedings simply confirm, or proclaim, the forfeiture that has already taken place. Therefore, any liens placed on the property after the date the asset is used illegally will be a lien filed against government property. Theoretically, no third party can acquire a legally recognizable interest in the property after the illegal use. However, the Supreme Court ruled that a good faith purchaser can assert an Innocent Owner defense prior to the government obtaining a judgment of forfeiture U.S. v. 92 Buena Vista Ave., Rumson, N.J. 113 S.Ct. 1126 (1993). In all instances, District Counsel shall be consulted prior to releasing a tax lien or to releasing the seized property to satisfy a tax lien. [Underscore added for emphasis]

Although the IRM section is phrased in a manner that probably doesn’t convey the substance of the Buena Vista decision, cited supra, unless someone actually reads the decision, Internal Revenue Service attorneys and ranking officers, if not lower-level IRS personnel, are obviously aware of the need for judicial due process before government agencies can lawfully encumber or convert private property. The Fifth Amendment due process clause is as much a barrier to civil action as the right to remain silent is to criminal. See Miranda v. Arizona, cited supra.

Two erroneous perceptions contribute to misunderstanding of federal tax administration and enforcement. The first, and possibly most serious, is that the Internal Revenue Code (Title 26 of the United States Code) is organized in such a fashion that administration follows the order of Code sections. The second is that the Internal Revenue Code contains all federal law relating to federal tax administration and enforcement. Neither is the case.

So far as Internal Revenue Code section and other arrangement is concerned, the matter is addressed by 26 U.S.C. § 7806(b):
(b) Arrangement and classification.
No inference, implication, or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title, nor shall any table of contents, table of cross references, or similar outline, analysis, or descriptive matter relating to the contents of this title be given any legal effect. The preceding sentence also applies to the sidenotes and ancillary tables contained in the various prints of this Act before its enactment into law.

The United States Code is a classification system for laws of the United States. Annual session laws are published sequentially in the Statutes at Large; each section in any given statute Congress enacts is then “codified” in one or more titles of the United States Code. In order to determine “legislative construction” of any given Code section (it’s proper application), it is necessary to go to the section genesis in original legislation. Just because one Internal Revenue Code section follows another, or one categorical subtitle or chapter follows another, does not mean that the two sections, chapters, subtitles or whatever have more than passing relationship to each other unless there is internal reference that establishes the link.

Lien and levy authority (26 U.S.C. §§ 6321 & 6331) are in Subtitle F, Chapter 64 of the Internal Revenue Code. Crimes, seizures and forfeitures, and the judicial authority for seizures (§ 7323), are in Chapter 74. Proceedings for judicial action (civil action; § 7402) are in Chapter 75. If these sections were interpreted to be applicable in numerical sequence, it would appear that the Internal Revenue Service has unilateral authority to issue notices of lien and levy without judgments from courts of competent jurisdiction. However, the relation-back doctrine demonstrates that judicial process must be antecedent to encumbering and converting privately owned assets on behalf of the government. This is the reason § 7806(b) of the Internal Revenue Code, and comparable disclaimers for each of the other titles, withholds implications of legislative construction.

Analogously, the United States Code is somewhat like a library card catalog organized by subject. At least ten titles in addition to Title 26 have sections and sometimes complete chapters relating to administration and enforcement of internal revenue laws. For example, administration of Subtitle E (alcohol, tobacco and firearms) of the Internal Revenue Code crosses over to Title 27. Section 7327 of the Internal Revenue Code acknowledges another expanded application crossover:
Sec. 7327. Customs laws applicable.
The provisions of law applicable to the remission or mitigation by the Secretary of forfeitures under the customs laws shall apply to forfeitures incurred or alleged to have been incurred under the internal revenue laws.

Unfortunately, the links between titles may work in the inverse and may not be as conspicuous as the two examples above. This is the case for Federal Debt Collection Procedure Act in Chapter 176 of Title 28, which contains federal judicial procedure and rules. At 28 U.S.C. § 3001, application is prescribed:
Sec. 3001. Applicability of chapter
(a) In general. – Except as provided in subsection (b), the chapter provides the exclusive civil procedures for the United States –
(1) to recover a judgment on a debt; or
(2) to obtain, before judgment on a claim for a debt, a remedy in connection with such claim.
(b) Limitation. – To the extent that another Federal law specifies procedures for recovering on a claim or a judgment for a debt arising under such law, those procedures shall apply to such claim or judgment to the extent those procedures are inconsistent with this chapter.

Are delinquent taxes classified as debts? According to definitions applicable to the Federal Debt Collection Procedure Act, they are:
Sec. 3002. Definitions
As used in this chapter:
(3) “Debt” means –
(B) an amount that is owing to the United States on account of a fee, duty, lease, rent, service, sale of real or personal property, over-payment, fine, assessment, penalty, restitution, damages, interest, tax, bail bond forfeiture, reimbursement, recovery of a cost incurred by the United States, or other source of indebtedness to the United States, but that is not owing under the terms of a contract originally entered into by only persons other than the United States. . . [Underscore added for emphasis]

Per § 3001, Federal Debt Collection Procedure in Chapter 176 of Title 28 provides exclusive civil procedure (judicial process) for the United States to collect debts “to the extent that another Federal law” doesn’t provide alternative procedure. Section 3002(3)(B) defines tax “owing to the United States” as a “debt” for purposes of Federal Debt Collection Procedure prescribed in Chapter 176 of Title 28. While there are technical exceptions for enforcement of tax law at 28 U.S.C. § 3003(b), the only alternative jurisdictional authority for judicial action to collect delinquent tax obligations is the admiralty/maritime in rem action accounted for at 26 U.S.C. § 7323 – jurisdiction of courts of the United States fall under the “arising under” clause or the admiralty/maritime clause. In either jurisdiction, whenever an alleged liability is contested, the matter must be adjudicated.

In either forum, the claim must be verified by a witness competent as a matter of law to make a complaint. Where the civil action is concerned, the requirement for a claim to be supported by affidavit is at 28 U.S.C. § 3006:   (Foot Note 6)
Any affidavit required of the United States by this chapter may be made on information and belief, if reliable and reasonably necessary, establishing with particularity, to the court’s satisfaction, facts supporting the claim of the United States.  (Foot Note 7)

To Be Continued . . . .

Foot Notes:

Foot Note 3
26 U.S.C. § 6331(a) and the section in general is an amalgamation that relates to several jurisdictions. Per the Parallel Table of Authorities and Rules, located in the Index to the Code of Federal Regulations, the only implementing regulation for 26 U.S.C. §§ 6321 (lien) and 6331 (levy and distraint) is 27 CFR § 70, which is under jurisdiction of the Bureau of Alcohol, Tobacco and Firearms. However, there are two jurisdictions that are generally exempt from publishing requirements of the Federal Register Act. One is the regulation or administrative procedure that applies exclusively to government agencies and personnel (5 U.S.C. § 301), and the other is admiralty and maritime jurisdiction (Federal Register Act, 44 U.S.C. §§ 1501-1510). The underscored portion of § 6331 applies to government agencies and personnel, as defined at 26 U.S.C. §§ 3401(c) & (d). There are no corresponding regulations listed for Part 1 (Subtitle A income taxes) and Part 31 (Subtitle C employment taxes (Social Security, etc.) and government agency administration (Chapters 24 & 25)) of Title 26 of the Code of Federal Regulations

Foot Note 4
Black’s Law Dictionary, Sixth Edition: “Utter, v. To put or send (as a forged check) into circulation; to publish or put forth; to offer. To utter and publish an instrument, as a counterfeit note, is to declare or assert, directly or indirectly, by words or actions, that it is good; uttering it is a declaration that it is good, with an intention or offer to pass it. To utter, as used in a statute against forgery and counterfeiting, means to offer, whether accepted or not, a forged instrument, with the representation, by words or actions, that the same is genuine.”

Foot Note 5
See 26 U.S.C. § 6335(a), Notice of seizure. “As soon as practicable after seizure of property, notice in writing shall be given by the Secretary to the owner of the property (or, in the case of personal property, the possessor thereof), or shall be left at his usual place of abode or business if he has such within the internal revenue district where the seizure is made…”

Foot Note 6
Those authorized to submit affidavits for tax-related criminal prosecution are listed at 18 U.S.C. § 3045. The Fourth Amendment and Rule 3 of the Federal Rules of Criminal Procedure control criminal procedure. In general, however, testimony of a competent witness is necessary to secure civil judgments or criminal convictions. If there isn’t a competent witness who has first-hand knowledge of facts, any judgment is void.

Foot Note 7
While a civil complaint may be supported by an affidavit submitted on “information and belief,” if allegations in the affidavit are contested, the burden of proof still lies with the government. Contested facts are determined by juries in cases at law, i.e., in the course of the common law.

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Uniform Commercial Code (The Application of Commercial Law) part 1

12 Tuesday Jun 2012

Posted by eowyndbh in Uncategorized

≈ 13 Comments

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7th Amendment, affidavit, affidavit of truth, commercial affidavit, commercial lien, commercial process is non-judicial, criminal complaint, International commerce, IRS, IRS is non-existent, IRS lacks jurisdiction, IRS not a party, IRS not registered, liens on traffic tickets, Maxims of Commerce, remedy in commerce, Seventh Amendment, Sheriff's common law jury, Title 18, Title 18 for sovereigns, truth is sovereign, UCC-1 Financing Statement, violation of constitution

(For Frank ‘Austin’ England III) 
 

The Application of Commercial Law

PURPOSE: To find out what group you are in

Provides a brief summary on the differences in bodies of law by definition

More definitions regarding titles, property and possession

Gives an overall view on how to get back control of your universe

Explains how to make the UCC-1 contract and how to properly file it

Explains how to establish own private treaty with the world

FINAL PRODUCT: The ability to control one’s body and one’s property

Hierarchy of Law!

The first order of law is Natural Law.   These are Universal Principals which so necessarily agrees with nature and state of man, that without observing their inherent maxims, the peace and happiness of society can never be preserved.Knowledge of natural laws may be attained merely by the light of reason, from the facts of their essential agreeableness with the constitution of human nature. Natural Law exists regardless of whether it is enacted as positive law.

When law began to emerge into human consciences, thought, word and deed we come to the next order of law on this planet. The most fundamental law of all human law has to do with survival which is a Universal Principal. It has to do with human interactions, of any kind, any relationships, buying, selling or trading or relating in any way. It is based upon treating or dealing with others the way that you would like to be treated or dealt with. This is the Law of Commerce. The Law of Commerce has been in operation since man interacted with each other starting many thousands of years ago through the Sumerian/Babylonian era where it was codified and enforced. Ancient artifacts dating over 6,000 old reveal that the system was so complex it even included reciepts, coined money, shopping lists, manifestos and a postal system with the medium being in baked clay.

As a derivative of Commercial law, being removed from natural law, and therefore inferior, is Common Law (common [L co together + munis service, gift, exchange] to exchange together). This emerged, basically, in England out of disputes over a portion of the earth in allodium (sovereign ownership of land) and was based on “common” sense. So, common law is the law of the earth. Common law gave rise to the jury system and many writs and processes which governments have absorbed and statutized and made into rules and regulation processes in courts.

Common Law procedures were based on the opportunity “to face your accuser or the injured party” in front of witnesses to sort out the problem directly. This process was never intended to include “lawyers, attorneys or judges construing their own law”, as these “titles” are all based upon the fiction of “representation” which can never “be the real thing”.

After common law come governments, and their laws and legislative regulations, ad infinitum of the organic republics of the states. The only “laws” that the state can create is to “allow commerce to flow more efficiently WITHIN the state”. The only “law” the central government, united States of America, could create was to “allow commerce to flow more efficiently BETWEEN the states. ” It was never intended to regulate people – the soverans.

Below that, the “garbage froth,” more or less, is politics and the private copyrighted company policy of foreign corporations such as UNITED STATES, THE STATE OF…, THE COUNTY OF…, THE CITY OF…, etc. The purpose of these “municipalities” [L munus service, gift, exchange + capere to take; to take service and exchange] is to “govern” fictitious entities such as JOHN DOE and K-MART – not to regulate people. Remember back when you thought that YOU were JOHN DOE because that is how it is written on your drivers license?

One of our problems is that when we engage with government, municipalities and other such elements, in all our dealings in the law when have been conditioned to interact on and in THEIR level. We have never risen to the level where the base of law is, where the reality, the power, the solidity and the pre-eminence exists – THE SOVERANS LEVEL. But now, we can function in this powerful level. This is Check mate. This is the end of the game. THIS IS THE REMEDY.

Commerce

The principles, maxims and precepts of Commerce Law are eternal, unchanging and unchangeable. They are expressed in the Bible, both the Old Testament and the New. We learned in the second course how the law of commerce has plagued us for more than 6000 years. This law of commerce, unchanged for thousands of years, forms the underlying foundation for all law on this planet and for governments around the world. It is the law of Nations and everything that human civilization is built upon. This is why it is so powerful. When you operate at this level, by these precepts, nothing that is of inferior statute can overturn or change it or abrogate it or meddle with it. It remains the fundamental source of authority and power and functional reality.

The Affidavit

Commerce in everyday life is the vehicle or glue that holds, or binds, the corporate body politic together. More specifically, commerce consists of a mode of interacting, doing business, or resolving disputes whereby all matters are executed under oath, certified on each patty’s commercial liability by sworn affidavit, or what is intended to possess the same effect, as true, correct, and complete, not misleading, the truth, the whole truth and nothing but the truth.

This affidavit is usually required for an application for a driver’s license, and IRS form 1040, a voters registration, a direct Treasury Account, a Notary’s “Copy Certification” or certifying a document, and on nearly every single document that the system desires others to be bound or obligated. Such means of signing is an oath, or Commercial Affidavit, executed under penalty of perjury, “true. Correct, and complete”. Whereas in a court setting testimony (oral) is stated in judicial terms by being sworn to be “the truth, the whole truth, and nothing but the truth, so help me God.”

In addition to asserting all matters under solemn oath of personal, commercial, financial, and legal liability for the validity of each and every statement, the participant must provide material evidence, i.e. ledgering, or bookkeeping, providing the truth, validity, relevance, and verifiably of each and every particular assertion to sustain credibility. Commerce is antecedent to and more fundamental to society that courts or legal systems, and exists and functions without respect to courts or legal systems. Commercial Law, the non-statutorily variety as presented below in maxims 1 through 10, is the economic extension of Natural Law into man’s social world and is universal in nature. The foundational, invariant, necessary, and sufficient principles or “Maxims of Commerce” pertaining herein are:

Maxims of Law

There are ten essential maxims or precepts in commercial law.

1. WORKMAN IS WORTHY OF HIS HIRE. The first of these is expressed in Exodus 20:15; Lev. 19:13; Mat. 10:10; Luke 10″7; II Tim. 2:6. Legal maxim: “It is against equity for freemen not to have the free disposal of their own property.”

2. The second maxim is “Equality before the law” or more precisely, ALL ARE EQUAL UNDER THE LAW. (God’s Law – Moral and Natural Law). Exodus 21:23-25; Lev. 24: 17-21; Deut. 1;17, 19:21; Mat. 22:36-40; Luke 10:17; Col. 3:25. “No one is above the law”. This is founded on both Natural and Moral law and is binding on everyone. For someone to say , or acts as though, he is “above the law” is insane. This is the major insanity in the world today. Man continues to live, act, believe, and form systems, organizations, governments, laws and processes which presume to be able to supercede or abrogate Natural or Moral Law. But, under commercial law, Natural and Moral Law are binding on everyone, and no one can escape it. Commerce, by the law of nations, ought to be common, and not to be converted into a monopoly and the private gain of the few.

3. This one is one of the most comforting maxims one could have, and your foundation for your peace-of-mind and your security and your capacity to win and triumph — to get your remedy — in this business. IN COMMERCE TRUTH IS SOVEREIGN. (Exodus 20:16; Ps. 117:2; John 8:32; II Cor. 13:8 ).Truth is sovereign — and the Sovereign tells only the truth. Your word is your bond.If truth were not sovereign in commerce, i.e., all human action and inter-relations, there would be no basis for anything. No basis for law and order, no basis no accountability, there would be no standards, no capacity to resolve anything. It would mean “anything goes”, “each man for himself”, and “nothing matters”. That’s worse than the law of the jungle. Commerce. “To lie is to go against the mind”. Oriental proverb: “Of all that is good, sublimity is supreme.”

4. TRUTH IS EXPRESSED IN THE FORM OF AN AFFIDAVIT.(Lev. 5:4-5; Lev. 6:3-5; Lev. 19:11-13: Num. 30:2; Mat. 5:33; James 5: 12). An affidavit is your solemn expression of your truth. In commerce, an affidavit must be accompanied and must underlay and form the foundation for any commercial transaction whatsoever. There can be no valid commercial transaction without someone putting their neck on the line and stated, “this is true, correct, complete and not meant to mislead.” When you issue an affidavit, it is a two edged sword; it cuts both ways. Someone has to take responsibility for saying that it is a real situation. It can be called a true bill, as they say in the Grand Jury. When you issue an affidavit in commerce you get the power of an affidavit. You also incur the liability, because this has to be a situation where other people might be adversely affected by it. Things change by your affidavit, in which are going to affect people’s lives. If what you say in your affidavit is, in fact, not true, then those who are adversely affected can come back at you with justifiable recourse because you lied. You have told a lie as if it were the truth. People depend on your affidavit and then they have lost because you lied.

5. AN UNREBUTTED AFFIDAVIT STANDS AS TRUTH IN COMMERCE.(12 Pet. 1:25; Heb. 6:13-15;) Claims made in your affidavit, if not rebutted, emerge as the truth of the matter. Legal Maxim: “He who does deny, admits.”

6. AN UNREBUTTED AFFIDAVIT BECOMES THE JUDGMENT IN COMMERCE.(Heb. 6:16-17;). There is nothing left to resolve. Any proceeding in a court, tribunal, or arbitration forum consists of a contest, or duel, of commercial affidavits wherein the points remaining unrebutted in the end stand as truth and matters to which the judgment of the law is applied.  

7. IN COMMERCE FOR ANY MATTER TO BE RESOLVED MUST BE EXPRESSED.(Heb. 4:16; Phil. 4:6; Eph. 6:19-21). No one is a mind reader. You have to put your position out there, you have to state what the issue is, to have someone to talk about and resolve. Legal Maxim: “He who fails to assert his rights has none.)

8. The primary users of commercial law and those who best understand and codified it in Western Civilization are the Jews. This is Mosaic Law they have had for more than 3500 years past which is based upon Babylonian commerce. This one is: HE WHO LEAVES THE BATTLEFIELD FIRST LOSES BY DEFAULT. (Book of Job; Mat. 10:22; This means that an affidavit which is unrebutted point for point stands as “truth in commerce” because it hasn’t been rebutted and has left the battlefield. Governments allegedly exist to resolve disputes, conflicts and truth. Governments allegedly exist to be substitutes for the dueling field and the battlefield for so disputes, conflicts of affidavits of truth are resolved peaceably, reasonably instead of by violence. So people can take their disputes into court and have them all opened up and resolved, instead of going out and marching ten paces and turning to kill or injure. Legal Maxim: “He who does not repel a wrong when he can, occasions it”.

8. SACRIFICE IS THE MEASURE OF CREDIBILITY (NO WILLINGNESS TO SACRIFICE = NO LIABILITY, RESPONSIBILITY, AUTHORITY OR MEASURE OF CONVICTION).Nothing ventured nothing gained. A person must put himself on the line assume a position, take a stand, as regards the matter at hand. and One cannot realize the potential gain without also exposing himself to thew potential of loss. (One who is not damaged, put at risk, or willing to swear an oath on his commercial liability to claim authority) (Acts 7, life/death of Stephen). for the truth of his statements and legitimacy of his actions has no basis to assert claims or charges and forfeits all credibility and right Legal Maxim: “He who bears the burden ought also to derive the benefit”.

9. SATISFACTION OF A LIEN.In commerce a lien or claim can be satisfied in any one of three ways. (Gen. 2-3; Mat. 4; Revelation.).

By someone rebutting your affidavit, with another affidavit of his own, point by point, until the matter is resolved as to whose is correct, in case of non-resolution.

You convene a Sheriff’s common law jury, based on the Seventh Amendment, concerning a dispute involving a claim of more than $20. Or, you can use three disinterested parties to make judgment.

The only other way to satisfy a lien is to pay it.

Legal Maxim: “if the plaintiff does not prove his case, the defendant is absolved”.

10.So, the tenth maxim of law is: A LIEN OR CLAIM CAN BE SATISFIED ONLY THROUGH REBUTTABLE BY AFFIDAVIT POINT BY POINT, RESOLUTION BY JURY, OR PAYMENT.

Commercial Law is non-judicial.This is pre-judicial (not prejudice). This is timeless. This is the base, the foundation beneath which any government or any of their court systems can possibly exist or function.

That means what the courts are doing, and what all governments are ultimately adjudicating and making rules about, are these basic rules of Commercial Law. When you go into court and place your hand on the Bible you say, “I swear the truth, the whole truth, and nothing but the truth . . .” you have just sworn a Commercial Affidavit.

It’s the conflict between Commercial Affidavits of Truth that gives the court something to talk about, that forms the entire basis of its action, and its being there , in their venue. Hence, one of the reasons attorneys always create controversy.

No court and no judge can overturn or disregard or abrogate somebody’s Affidavit of Truth. The only one who has any capacity or right or responsibility or knowledge to rebut your Affidavit of Truth is the one who is adversely affected by it. It’s his job, his right, his responsibility to speak for himself. To issue his own affidavit because no one can speak it for him. No one else can know what your truth is or has the free-will responsibility to state it. This is YOUR job.

Commercial Law

This phrase designates the whole body of substantive jurisprudence, i.e. the Uniform Commercial Code, the Truth in Lending Act, applicable to the rights, intercourse, of persons engaged in commerce, trade or mercantile pursuits. Blacks 6th.

Commercial Law maintains the commercial harmony, integrity, and continuity of society. It’s also stated as “to maintain the peace and dignity of the State.” Over the millennia these principles have been discovered through experience and distilled and codified into those ten fundamental Maximums listed above. There is no legal issue or dispute possible which is not a function of one or more of these principles. The entirety of world commerce now functions in accordance with the Uniform Commercial Code (UCC), the UNITED STATES’ corporation version of Commercial Law.

Collection, and How To Calculate Your Damages

Now, here is another aspect of your affidavits. In commerce there is the Assessment aspect, which is who owes who, and what, why, how and for what reasons; and there is the Collection aspect.

The collection aspect is based in International commerce that has existed for more than 6000 years. Again, this is based on Jewish Law and the Jewish grace period, which is in units of three; three days, three weeks, three months. This is why you get 90day letters from the IRS.

Commercial processes are non-judicial. They are summary processes (short, concise-without a jury).

The IRS creates the most activity of Commercial Collection in the entire world. The collection process is relatively valid, although the IRS is not registered to do business in any state. Did you understand what you just read? The IRS is NOT REGISTERED TO DO BUSINESS OR PERFORM COMMERCIAL MATTERS IN ANY STATE. So how do they get all the money they get? ANSWER: because you give it to them without requesting a proof of claim from them or even if they were “licensed” to give you offers based on “arbitrary” estimations.

However, this is where things get very interesting. The other phase of matters is the assessment phase: THERE IS NO VALID ASSESSMENT. The IRS has, and never can, and never will, and never could, EVER issue a valid assessment lien or levy. It’s not possible.

First of all, in order for them to do that there would have to be paperwork, a True Bill in Commerce. There would have to be sworn Affidavits by someone that this is a true, correct and complete and not meant to deceive, which, in commerce is, essentially “the truth, the whole truth and nothing but the truth” when you get into court. Now, nobody in the IRS is going to take commercial liability for exposing themselves to a lie, and have a chance for people to come back at them with a True Bill in Commerce, a true accounting. This means they would have to set forth the contract, the foundational instrument with your signature on it, in which you are in default, and a list of all the wonderful goods and services that they have done for you which you owe them for; or a statement of all the damages that you have caused them, for which you owe them.

To my knowledge, no one has ever received goods or service from the IRS for which they owe money. I personally don’t know of anyone that has damaged anybody in the IRS that gives them the right to come after us and say that “you owe us money because you damaged me”. The assessment phase in the IRS is non-existent, it is a complete fraud. Wait a minute, there is one definition of “service” that actually applies to the IRS;

Service.The act of bringing a female animal to a male animal to get *&%$#@ so that the owner of the animals may “enjoy the product of this union.”

Gives you a warm fuzzy feeling inside doesn’t it?

This is why these rules of Commercial Law come to our rescue. T. S. Eliot wrote a wonderful little phrase in one of his poems: “We shall not cease from exploration, and the result of all our exploring will be to arrive at the place at which we began and know it for the first time.”

This is the beginning , and this is the end. This closes the circle on the process.

One reason why the super rich bankers and the super rich people in the world have been able to literally steal the world and subjugate it, and plunder it, and bankrupt it and make chattel property out of most of us is because they know and use the rules of Commercial Law and we don’t.

Because we don’t know the rules, nor use them, we don’t know what the game is. We don’t know what to do. We don’t know how to invoke our rights, remedies and recourses. We get lost in doing everything under the sun except the one and only thing that is the solution.

No one is going to explain to you what and how all this is happening to you. That is never going to happen. These powers-that-be have not divulged the rules of the game. They can and do get away with complete fraud and steal everything because no one knows what to do about it.

SOLUTION;

Well, what CAN you do about it? YOU NEED TO ISSUE A COMMERCIAL AFFIDAVIT. You don’t have to title it that, but that’s what it is. You can assert in your affidavit, “I have never been presented with any sworn affidavits that would provide validity to your assessment. It is my best and considered judgment that no such paperwork or affidavit exists.” At the end of this document, you put demands on them. They must be implicit and then you state, “Should you consider my position in error . . .”

You know what they have to do now, don’t you? They must come back with an affidavit which rebuts your affidavit point for point, which means they have to provide the paper work with the real assessment, the true bill in commerce, the real sworn affidavits that would make their assessment or claims against you valid.

No agent or attorney of a fictitious entity can sign an affidavit for the corporation. How can they sware as fact that the corporation has done or not done ANYTHING? They do not have the standing. They cannot and never will provide you with this. This means your affidavit stands as truth in commerce.

You can even make it more interesting if you like. You go to all their laws like Title 18 and you tabulate the whole list of crimes they have committed against you in lying to you, foreclosing and selling your home and issuing liens and levies. This could be quite an impressive list.

If you tabulate the dollar amounts of the fines involved in these offenses, you could take just Title 18 section 241 alone which is a $10,000.00 fine on any public official for each offense. That means for every single violation of the Constitution, or commercial law, there could be 35 or 40 of these just in Title 18. You’re looking at $300 to $400 thousand. When they start adding up, they become very impressive.

Now you attach this accounting, the criminal accounting to your affidavit and you file it as a criminal complaint with the State Attorney. This is like putting the fox in charge of guarding the hen house. However, more about this will be outlined later in this course.

For now, just attach your affidavit and your criminal complaint to a commercial lien. But wait! There is even a more effective way of getting you equity back – Involuntary Bankruptcy! These procedures will be detailed in Course 5.

The reason you go through this criminal complaint is because by their own laws and value system and penalties, they have hung themselves. They have already discerned and formulated the dollar amount involved in each of the various offenses. When you lien them for those amounts, they can’t come back and say: “Well, these are out of nowhere. They’re unreasonable. Where did you get this?” Right out of your own codes.

COMMERCIAL PROCESSES ARE NON-JUDICIAL, PRE-JUDICIAL, AND ARE MORE POWERFUL THAN JUDICIAL PROCESSES.

Now, you take your commercial lien to the Secretary of State to file as a UCC-1 Financing statement. Then as soon as you’ve finished filing the original criminal complaint with the Prosecuting attorney you file this lien against every agent individually. (The criminal complaint is optional). They can’t hide behind the skirts of the corporate state, this fictional entity created by man to be able to engage in perfidious actions which you would not otherwise be able by virtue of Natural and Moral Law. It just doesn’t work.

Now, you can use this same collection process against them just as the IRS uses against you.

You will discover that all the attorneys, judges and the people who come against you think this is a lot of gobble-di-gook, hogwash and silly. But they soon learn that your affidavits of truth is valid and enforceable against them. And they find that things become more and more uncomfortable with each passing day. Judges even think all this doesn’t matter because they can get another judge to remove all your paperwork against them. Other agents of the government think they can hide behind the sovereign immunity of the Government, behind all the power and prestige, all their attorneys and all their capacity to get the courts to do whatever the wish is going to save them. None of these have any effect on your process.

It has no effect because there is only one way that they can be saved and that is to come in with their own affidavit that rebuts your affidavit point by point and prove you wrong. If they did get this into court or jury that’s not going to do them any good because the same battle still exists.

All this means is that the conflict between affidavits are now fought out in the open. And that is embarrassing to them because they are not going to change anything. All this will simply do them more harm.

The third way to settle your claim is for them to pay it. If they don’t satisfy your claim you give them a grace period, at the end of 90 days you transform the Secretary of State into your Accounts Receivable Office. Legal Title of all their real and personal property has now passed to you. You now file the correct paperwork with the Secretary of State, and you serve this on the Sheriff and say, “I want to take possession of my property.” Things begin to get interesting.

If you send a criminal complaint on a public official to the Insurance Commissioner of the State, it becomes instantly and automatically a lien against the bond of the official, the judge or district attorney and he’s dead. He cannot function without bonding. This is held in suspension until the issue is resolved.

Now, all of a sudden we find ourselves, simply by going back to what we’ve wanted all along, which is truth, rightness and a remedy, that we have, by going back in this and finding the rules that pertain to it, a way to have more power than they do, since we are sovereign.

No one, not a judge, jury or anyone else can overturn this or change this process.

To do so would be to dissolve the world immediately into chaos. This would be the end of all law, all order, all standards, for all civilization.

It is not possible. They are stuck. This forms the underpinnings of philosophy, in tangle practices, of the way to put power on your side and against those agents of government who violate your being, injure you all in violation of their oath of office.

That is how, through their own process, we can use the rules of the game in OUR favor instead of remaining in ignorance and being taken forever as slaves.This applies to everything, not just the government. This forms a valid foundation for your life and it forms a basis for any kind of dealings with government. What most people don’t even consider is that governments don’t have and can’t have anything to support an affidavit of truth to support their actions.

Governments invent all the regulations and statutes to impose on you, affecting your life and commercial/economic standing. And no one is taking any liability, responsibility nor accountability. They may have some kind of bonding. But in most states this bonding is only for about $5-10 million for the entire state and all its employees. However, you can tabulate a simple traffic ticket into more than $5 million if you so choose.

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TRAFFIC (Driver’s License vs Right to Travel)

15 Tuesday Nov 2011

Posted by eowyndbh in Uncategorized

≈ 26 Comments

Tags

Brief in support of lack of jurisdiction, Brief on Right to Travel, definitions of automible and motor vehicle, driving definition, license definition, Northwest Ordinance, police power, right to travel, sovereign documents, sovereignty, state cannot diminish rights, Title 18, traffic definition, USC 31, vehicle definition

Brief in Support (For Austin) 

Driver License vs. the Right to Travel

The following argument has been used successfully in at least three states (Pennsylvania, Ohio, West Virginia, and New Mexico as I just won a case) as a legal brief to support a demand for dismissal of charges of  “driving without a license.” It is the argument that was the reason for the charges to be dropped, or for a “win” in any administrative statute or merchant court/tribunal against the argument that free people can suffer their inherent right to travel summarily regulated by the public servant and thereby, subject to random police powers.

 BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION

COMES NOW, this sovereign, in rerum natura standing in His own Court of original jurisdiction at all times and not by definition, does He appear generally or voluntarily in the “airspace above” “this state” nor said state’s Prize Court” of “the State” that has legislative jurisdiction, while at all times, having been threatened with arrest should he failed to do the impossible, (appear in the airspace above “this state”) and presents for educational purposes this “BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION,” asserting belligerently as follows: (See also where applicable, the attached Writ of Corum Nobis and Corum non Judice.WHEREAS; 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 the ordinary transportation of the day. Licensing cannot be required of free people, because taking on the restrictions of a license requires the surrender of a right. The driver’s license can be required of people who use the highways for trade, commerce, or hire; that is, if they earn their living on the road, and if they use extraordinary machines on the roads. If you are not using the highways for profit, you cannot be required to have a driver’s license.

NOTICE AND CAVEAT

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.

THE NATURAL RIGHT

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 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

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.”Bouvier’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 therefrom, 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 constitutionally secured [or recognized] 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 …

(A) Travelling upon and transporting one’s property upon the public roads, which is our Right; and …

(B) 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 GOING TO THE EXERCISE OF THE NATURAL RIGHT

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 Dayton vs. DeBrosse,23 NE.2d 647, 650; 62 Ohio App. 232

The distinction is made very clear in Title 18 USC 31:· “Motor vehicle” means every description or other contrivance propelled or drawn by 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.

TO TRAVEL IN LIEU OF “DRIVE”

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;

Bouvier’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 …” Bouvier’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:

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

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


Traffic

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

· “… Traffic thereon is to some extent destructive, therefore, the prevention of unnecessary duplication of auto transportation service will lengthen the life of the highways or reduce the cost of maintenance, the revenue derived by the state … will also tend toward the public welfare by producing at the expense of those operating for private gain, some small part of the cost of repairing the wear …” Northern Pacific R.R. Co. vs. Schoenfeldt, 213 P. 26

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

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

· “Traffic — Commerce, trade, sale or exchange of merchandise, bills, money, or the like. The passing of goods and commodities from one person to another for an equivalent in goods or money …” Bouvier’s Law Dictionary, 1914 ed., Pg. 3307

Here again, notice that this definition refers to one “conducting business.” No mention is made of one who is travelling in his automobile. This definition is of one who is engaged in the passing of a commodity or goods in exchange for money, i.e .., vehicles for hire.

Furthermore, the word ”traffic” and ”travel” must have different meanings which the courts recognize. The difference is recognized in Ex Parte Dickey, supra:

· “…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 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.

LICENSE

It seems only proper to define the word ”license,” as the definition of this word will be extremely important in understanding the statutes as they are properly applied:

· “The permission, by competent authority to do an act which without permission, would be illegal, a trespass, or a tort.” People vs. Henderson,218 NW.2d 2, 4 “Leave to do a thing which licensor could prevent.”Western Electric Co. vs. Pacent Reproducer Corp., 42 F.2d 116, 118.

In order for these 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.

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 secured Constitutional Right?

“3. Is this regulation reasonable?

People vs. Smith, 108 Am.St.Rep. 715;
Bouvier’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. (See Parks vs. State,64 NE 682.)

· “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. Wanley245 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 Opportunity to defend.” Simon vs. Craft,182 US 427

Yet, not one individual has been given notice of the loss of his/her Right, let alone before signing the license (contract). Nor was the Citizen given any opportunity to defend against the loss of his/her right to travel, by automobile, on the highways, in the ordinary course of life and business. This amounts to an arbitrary deprivation of Liberty.

· “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 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)

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 travelling freely upon the highways  …” Washington A.G.O. 59-60 No. 88, Pg. 11

This alarming opinion appears to be saying that every person using an automobile as a 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. Arizona, 384 US 436, 491

Thus the legislature does not have the power to abrogate the Citizen’s Right to travel upon the public roads, by passing legislation forcing the citizen to waive his Right and convert that Right into a privilege. Furthermore, we have previously established that this “privilege” has been defined as applying only to those who are “conducting business in the streets” or “operating for-hire vehicles.”

The legislature has attempted (by legislative fiat) to deprive the Citizen of his Right to use the roads in the ordinary course of life and business, without affording the Citizen the safeguard of “due process of law.” This has been accomplished under supposed powers of regulation.

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 US 43; Pachard vs. Banton, supra.

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

First, let us consider the reasonableness of this statute requiring all persons to be licensed (presuming that we are applying this statute to all persons using the public roads). In determining the reasonableness of the statute we need only ask two questions:

· 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.)

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 aka FRAUD IN THE INDUCEMENT

An American 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 U.S. Government or the Rights which the Citizen holds under it, has been uniformly denied.”McCulloch vs. Maryland,4 Wheat 316

The power to tax is the power to destroy, and if the state is given the power to destroy Rights through taxation, the framers of the Constitution wrote that document 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. Nevada,6 Wall 35, 46

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 IS A CRIME IN ITSELF

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 Citnzen’s Right to use the public highways in the ordinary course of life and business without license or regulation by the police powers of the state.

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. (Kent, supra.)

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.

In addition:

Since no notice is given to people when applying for driver (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. Said fraud is cause for demand that the DMV surrender its Bond.

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 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 their right mind voluntarily surrenders complete liberty and accepts in its place a set of regulations.

When approaching any DMV employee, ask for the law/statute that compels strict liability to submit to the privilege of licensing and thereby give up a secured right for the purpose to exercise your “private” right to travel in the mode of the day. If necessary, ask to speak to their supervisor.

“The people never give up their liberties but under some delusion.”

Edmund Burke, (1784)

(How often I have read in e-mails sent by Austin, where he would say when pulled over by officiers; “I don’t wish to contract today, Thank You”.  Austin hasn’t left us, but is fighting for his life after a major stroke.
I leave you with The Northwest Ordinance, at Article 4, The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.  Clearly the Founders intent!!)

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  • STATUTE (FRAUD IN THE INDUCEMENT)
  • Legalese (Government Manipulation of Language)
  • The Additional Legal Rights Otherwise Dormant
  • Administrative Law
  • Buck Act – The Jurisdiction Of The Land
  • The Initinere (Document)
  • The In Itinere Cover Sheet and Caveat (part 2)
  • The IN ITINERE Notice And Caveat (In Itinere – Cover Page)
  • Doctrine (The Constitution is an Express Trust)
  • Allocution (Declaration of Absolute Rights and Refusal to Except Sentence)
  • Not Burning Books Like ‘Farenheit 451’ – Altering Them
  • Affidavit of Abatement (No Such Corporation)
  • Jury Summons Response Letter
  • The Affidavit Of Natural Identity And Caveat
  • There Is No “State”
  • The Emergency Powers Of Martial Law (Historical Outline)
  • Court (Relation-Back Doctrine – Defeats Summary Administrative Process) part 3
  • Court (Relation Back Doctrine – Defeats Summary Administrative Process) Part 2
  • Court (Relation Back Doctrine – Defeats Summary Administrative Process) Part 1
  • Refusing A Non-Substantive Offer (Nullify Commercial Law)
  • The Substantive Statute Or Regulation ?
  • Uniform Commercial Code (Application and Use of Commercial Law) part 3
  • Uniform Commercial Code (The Application of Commercial Law (part-2)
  • Uniform Commercial Code (The Application of Commercial Law) part 1
  • Ten Basic Foundations Of Commercial Law (Part 3)
  • Ten Basic Foundations Of Commercial Law (Part 2)
  • Ten Basic Foundations Of Commercial Law (Part 1)
  • Location of Debtor (District of Columbia)
  • Political Question Doctrine
  • Statutes (Never Argue The Second Amendment)
  • Treaty Cannot Infringe The Constitution
  • The Temples of Baal (Courts of Admiralty)
  • The Eternal Law Of Conquest
  • Trading With The Enemy Act (More On War Powers)
  • Declaration of Independence – Latter Day Declarant
  • Memorandum Asserting Rights
  • Uniform Bonding Code – part 3
  • Uniform Bonding Code Part – 2
  • Uniform Bonding Code – Part 1
  • Things Your Lawyer, Attorney, or Judge Won’t Tell You
  • The Law of Prize and Prize Courts
  • Oregon Department of Re-venue Letter (Pt 2)
  • Oregon Department Of Re-venue Letter (Part 1)

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