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Paul Staples, Sui Juris Filing Stamp: Went to court on Monday 4 Oct, 2004
Box 10, Freedonia WI 53021 Judge dismissed the case.
Cell phone: 920-539-8123
This brief is available in WordPerfect e format,
pdf format, and html format.
This document is http://www.lawyerdude.s5.com/6448.html
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Here is what Driver Paul Staples wrote:
Doug, I will be obtaining a copy of my court transcript from today's court appearance, which I will be submitting to you to do as you please. Permission is granted if you want to post it. I argued my defense today. The judge did not want to reopen the case, but I kept pressing him that the case should be reopened because there was a fraud committed on the court by the officer. He eventually granted the prosecution 60 days to respond to the briefs I had submitted to the court, and granting me 30 days to respond to the response from the prosecutor.
I left the courtroom and went to my car. I then realized that I had left my coat in the courtroom. I returned and was handed my coat by a deputy. As I was about to leave, the judge requested that I wait a minute, as another case was in session. He than recalled my case, and had a deputy sheriff come behind the bench. He proceeded to talk to the officer holding his hand to his mouth so that I could not hear the conversation. He than made a comment that in reviewing the citation, the officer did not put a speed on the ticket regarding the pace of the automobile, and than asked the prosecutor if that was a necessary requirement, as if he didn't already know.
He than said that the ticket was dismissed, "but not due to the reasons as specified in the brief." He made it a point to inform me of that.. What a joke. These people must all think that everyone is stupid.
I will forward the transcript when obtained.
Thanks for your help. Paul Staples
Here is the brief:
In the
Traffic Court, Milwaukee County, Wisconsin
901 West State Street, Room 503, Milwaukee Wisconsin 53233
Deputy C. Pollard,
Court Clerk,
Milwaukee County
Plaintiffs
v
Paul Staples,
Defendant
Ticket number: #E134260-0x
Driver’s 2nd substantive Document
Document #6448 Version 0.93
Motion to dismiss case as barratry and champerty.
Motion to dismiss for defective unconstitutional statute, unconstitutional on its face and as applied - and other constitutional infirmities.
Suppression motion.
Supporting Declarations. Memorandum of Law.
Proof of Service by personal service.
Venue for this hearing:
Date: Thursday 14 October 2004
Time: 1:30 pm
Court: 901 West State Street, Room 503, Milwaukee
Notice of Motion(s)
To the prosecutor all parties and counsel: Be advised: At the venue indicated in the caption above or at such other time as the court may designate, I will ask the court to dismiss this case for the reasons set forth herein.
Signed ____________________ Paul Staples Monday Oct 14, 2004.
We use the roads as tenants in common; No License is needed.
Sign on side of Grampa’s truck: “Not for Hire”
"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
"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." - American Jurisprudence 1st. Constitutional Law, Sect.329, p 1135.
Table of Contents:
Tables of Authorities cited herein:
Table #1 U.S. Supreme Court cases cited herein:
Table #2: Lower Federal Court Cases cited herein:
Table #3 California Cases cited herein.
Table #4: Cases from other states cited herein:
Table #6: Constitutional clauses cited herein:
Table #7: Learned Treatises and Encyclopedias cited herein:
Overbreadth. The speeding law is overbroad. It vests unbridled discretion in the policeman.
Even though a statute be fair on its face, the method of enforcement may fail constitutional muster.
Tumey doctrine. This court profits only by convictions. That’s unconstitutional.
Traffic court should be civil - not criminal
In traffic tickets the clerk acts as prosecutor and so does the judge.
In the Beginning we built roads. We shared common tenancy.
Declaration of Douglas Palaschak re: The law of licensure of farm trucks.
Defendant risks losing his right to drive - by the application of bad unconstitutional laws.
The standard should be “tickets per mile” - not the mere number of tickets
We use the road as common tenants - not as renters from the state
Comparison of Tenant in Common to Licensee
The Nature of a License: permission to do something that one otherwise may not do.
Supreme Court’s Views on the right to Locomotion
The Department of Motor Vehicles has by stealthy encroachment overstepped its bounds
Supreme Court’s older Traditional View of Right to Travel
States may not compact with each other without permission of Congress.
Some cases that flesh out the difference between “rights” and “privileges”
Liberties may not be licensed - although by stealthy encroachment that was the trend
The Constitutional Right to Travel. Locomotion. Association.
General Ancient Libertarian Premise
Right to Use Roads and Highways.
The Common Law Right to Travel
Automobiles and the Right to Travel.
Defendant is not required to have a driver license.
There is no compelling state interest
Some would say that the right to travel is limited to travel without a car. They are wrong.
Licensing distinguished from mere Regulation
Abrogation of the Right of Property by stealthy encroachment
Conclusions applicable to Defendant’s use of the roads in common tenancy
Tables of Authorities cited herein:
Table #1 U.S. Supreme Court cases cited herein:
Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U.S. 495 . 1
Aptheker v. Secretary of State, 378 U.S. 500 (1964 1
Boyd v. United States (1886) 1
Cox v. Louisiana, 379 U.S. 536, 579 1
Edwards v. California http://www.lawyerdude.netfirms.com/edwards.html 1 1 314 U.S. 160
2
Fred Shuttlesworth v City of Birmingham (1965) Volume 15 Lawyer's Edition 2nd 176, 382 US 87, 86 S Ct 211 1
Gibbons v. Ogden (Feb 1824) 22 US 1, 6 L Ed 23, 9 Wheat 1. Steamboat licensing dispute.
1
Graham v. Department of Pub. Welfare, 403 U.S. 365 (1971) 1
Johnson v Maryland , 254 U.S. 51 (1920) http://www.lawyerdude.8m.com/5274.html 1 says that Postal Workers can drive without a
driver license. It’s a denial of equal protection to require a license some but not others.
2
Kent v. Dulles, 357 U.S. 116 (1958) 1
Miranda V Arizona (1966) 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3rd 974 and 59 other ALR treatises
http://www.lawyerdude.netfirms.com/miranda.html 1
2
NAACP v. Button, http://www.lawyerdude.netfirms.com/naacp.html 1 371 U.S. 415, 433 , 435 2
2
Oregon v. Mitchell, 400 U.S. 112 (1970) 1
Papachristou v City of Jacksonville (1972) 31 L Ed 2d 110, 405 US 156, 92 S Ct 839. http://www.lawyerdude.8k.com/5850.html 1 2
Shapiro v. Thompson, 394 U.S. 618 (1969) 1
Thompson v. City of Louisville, 362 U.S. 199 1
Thornhill v. Alabama, 310 U.S. 88, 97 1 1
Tumey v Ohio (1927) 273 U.S. 510 http://www.lawyerdude.8k.com/Tumey.html 1 . 2
Tumey v State of Ohio (1927) 273 U.S. 510 http://www.lawyerdude.8k.com/Tumey.html 1 2
U.S. v Mersky (1960) 361 U.S. 431: An administrative regulation, of course, is not a "statute."
1
United States v. Burnison, 339 U.S. 87 1 1
United States v. Guest, 383 U.S. 745 (1966) 1
Winters v. New York 1
Zemel v. Rusk, 381 U.S. 1 (1965) 1
Table #2: Lower Federal Court Cases cited herein:
Douglas v City of Jeannette 130 F 2nd 652, 655. 1
Knoll Golf Club v U.S., 179 F Supp 377 1
Table #3 California Cases cited herein.
Escobedo v. State Dept. of Motor Vehicles (1950), 222 Pac. 2d 1, 5, 35 Cal.2d 870 (1950). The losing side made all the correct arguments in this case. 1
Table #4: Cases from other states cited herein:
Beard v City of Atlanta (__) 86 SE 2nd 672, 676; 91 Ga. App. 584. 1
Chicago Motor Coach v. Chicago, 169 NE 221. “The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived." 1
City of Louisville v Sebree (19__) 214 SW 2nd 248, 308 Ky 420 1
Littleton v Burgess 82 P 864, 866, 14 Wyo 173. 1
Middlebrooks v. City of Birmingham, 42 Ala. App. 525. 527, 170 So.2d 424, 426. 1
Payne v. Massey (19__) 196 SW 2nd 493, 145 Tex 273. 1
Phifer v. City of Birmingham, 42 Ala. App. 282, 285, 160 So.2d 898, 901. 1
Robertson vs. Department of Public Works, 180 Wash 133,147 "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.".
1 2
Taylor v Smith, 140 Va. 217, 235 1
Thompson v. Smith, 154 SE 579. 1
Wool v Larner, 26 A 2nd 89, 92, 112 Vt. 431. 1
Table #6: Constitutional clauses cited herein:
10th amendment 1
43 USC 1983 permits action in state court to defend our constitutional rights - including our rights as state citizens. The law pertains to the rights of all persons in the jurisdiction. 1
California Constitution 1
Edwards v California. 1
equal protection 1
Equal Protection Clause 1
U.S. Constitution: Art. 1 Section 10, Clause 3: “ No state shall, without Consent of Congress, . . . enter into any Agreement or Compact with another State. . .” 1
U.S. v Guest 1
Table #7: Learned Treatises and Encyclopedias cited herein:
American Jurisprudence, 1st Edition. Constitutional Law, Sect.329, p.1135 “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."
1
Paul Staples received a speeding ticket while driving his automobile on a straight level high speed freeway in Wisconsin during daylight and perfect driving weather. The ticket does not say how fast Paul was driving. The policeman cannot know because the policeman had to speed up to an unsafe speed (for this policeman - not for Paul). Paul is a very safe driver having driven many miles as a professional truck driver. Paul has never had a crash in all those miles.
This ticket was given to Paul while he was driving an automobile - not his usual 18 wheeler.
A law that fails take Paul’s experience into account is overbroad and unconstitutional.
Paul grew up in rural Wisconsin and has been driving since age 18. He passed the driving test and has been driving without incident for all of his life. In recent years, Paul concluded logically that a driver license is not a legal prerequisite to driving his car. Paul, like many legally educated Americans, has studied history and can see the stealthy encroachment. Paul dislikes the police mentality and the police state.
The officer inquired of Paul without issuing a Miranda warning despite his obvious focus on Paul as the subject of a criminal prosecution. He intended to pursue a criminal case against Paul if the results of his fishing expedition proved fruitful. He should have shared that information with Paul in the form of a Miranda warning. Police now intend to use Paul’s statements against him.
The court has thus far trampled on Paul’s rights. Although his intent was to argue the legal issues, the court simply ignored those issues and entered a plea for him, thus attempting to deny his due process. Paul now demands his full panoply of procedural due process including the time-honored right to litigate the legal before making a plea. And on that note, to the extent that the court does not so advise lay persons, like Paul, of this matter, the court denies Paul due process - a basis for immediate dismissal. It is likely that the court in fact advises Paul incorrectly on matters of his rights; all courts do. You can’t give Paul back the time that he has spent on this case. You are taking away days from his life. Corporations like the prosecutor live forever and don’t care about wasted time. Paul does care.
Overbreadth. The speeding law is overbroad. It vests unbridled discretion in the policeman.
"Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration. (Footnote 5) It "does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat." - the Supreme Court in Fred Shuttlesworth v City of Birmingham (1965) Volume 15 Lawyer's Edition 2nd 176, 382 US 87, 86 S Ct 211.
The civil rights era brought us a revitalization of our constitutional rights. The Papachristou is another case that vindicates our rights against overbroad laws. Papachristou v City of Jacksonville (1972) 31 L Ed 2d 110, 405 US 156, 92 S Ct 839. http://www.lawyerdude.8k.com/5850.html
An ordinance which "as written, may result in arbitrary and erratic arrest and convictions" must be stricken. - Supreme Court in Papachristou case.
Here are the powerful cases on which this Shuttlesworth opinion was based:
Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U.S. 495 .
Cox v. Louisiana, 379 U.S. 536, 579
Edwards v. California http://www.lawyerdude.netfirms.com/edwards.html 1 314 U.S. 160
Middlebrooks v. City of Birmingham, 42 Ala. App. 525. 527, 170 So.2d 424, 426.
NAACP v. Button, http://www.lawyerdude.netfirms.com/naacp.html 371 U.S. 415, 433 , 435 2
Phifer v. City of Birmingham, 42 Ala. App. 282, 285, 160 So.2d 898, 901.
Thompson v. City of Louisville, 362 U.S. 199
Thornhill v. Alabama, 310 U.S. 88, 97
United States v. Burnison, 339 U.S. 87
Winters v. New York, 333 U.S. 507
Even though a statute be fair on its face, the method of enforcement may fail constitutional muster.
Everybody knows that speeding tickets are like the lottery for the state. It is random taxation. This law fails constitutional muster.
Also, you don’t stop habits by jacking up the penalty. If people refuse to wear seatbelts should be be more forceful in our legislature? Should we give the driver life in prison to ensure that he wears his seatbelt? No.
As for speeding, drivers know better than the legislature what is good for that place and time. Speeding laws are stupid prophylactic measures that are too general to suit the time and place.
Tumey doctrine. This court profits only by convictions. That’s unconstitutional.
In Tumey v State of Ohio (1927) 273 U.S. 510 http://www.lawyerdude.8k.com/Tumey.html the Supreme Court overturned the conviction of a person where the mayor was the judge and the city benefitted only by a conviction. They received a $5 federal bounty on violators of the prohibition laws. This court depends on a steady stream of revenue from speeding tickets and other traffic tickets. This practice is unconstitutional. This court should be ashamed of this practice and the practice of permitting the judge to act as prosecutor.
All evidence stems from a traffic stop without a Miranda warning. It must be suppressed. Miranda V Arizona (1966) 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3rd 974 and 59 other ALR treatises
http://www.lawyerdude.netfirms.com/miranda.html
Traffic court should be civil - not criminal
Congress gave us section 1983 to protect us against Draconian state action.
In traffic tickets the clerk acts as prosecutor and so does the judge.
The practice throughout the country is that the clerk does the prosecutorial task of mailing a reminder/ informal summons to the driver. Ironically, you can’t get the clerk to do that in a civil case. Often the ticket is prosecuted by the judge who acts as prosecutor by questioning the police officer. The judge and clerk are happy to do this job because they collect a large booty for themselves collectively. This violates the principle established in Tumey v Ohio (1927) 273 U.S. 510 http://www.lawyerdude.8k.com/Tumey.html .
In the Beginning we built roads. We shared common tenancy.
The townships generally required citizens to contribute approximately 10 days in the spring to fix the roads. Those citizens with wagons hauled macadam rock and other materials.
Evolution of Driver License - as related by Charles Sprinkle of Ojai, California
Charles chas@ojai.net was born in 1939 in West Virginia. He says that volunteers patrolled the roads carrying gasoline for people with car problems. Eventually every driver paid 25 cents toward the gasoline fund. The receipt for this 25 cents was your license to use the road and partake of the services should you become stranded.
Declaration of Douglas Palaschak re: The law of licensure of farm trucks.
I, Douglas Palaschak, declare the following under penalty of perjury: I remember. I was raised on a grand corn and soybean farm in Illinois. When I was age 9, each of my Grandfathers owned a grain truck. Both trucks said the same thing on the side: “Not for hire”. I pondered this strange message for many years. Why would you not hire your truck out? Why make an issue of it before anybody even asks? The answer seemed to be that if you hired out your truck then you became subject to a higher tax on the truck. In fact to this day there is a rule, perhaps unwritten, that a farmer may drive his truck to the nearest grain elevator just as he may drive his tractor and wagon, to wit: without regard for licenses on the driver or the truck - because none are needed for the tractor and wagon hauling corn in from the field.
I drove a grain truck again on the farm in the harvests of 1996, 1997, and 1998. I drove it without a driver license for a truck, and, as I recall, the trucks, or at least one of them was not currently registered. That is how the issue arose.
________________
Douglas Palaschak. Signed with permission to facilitate e-mailing.
Defendant risks losing his right to drive - by the application of bad unconstitutional laws.
By stealthy encroachment the state takes away our liberty and sells is back to us as a license. The stealth encroachment process of the corporation/ state against the human depends on time for its success. The human lives perhaps 85 years. The corporation/ state has eternal life. As each succeeding generation dies off, the next generation fails to remember the lessons and history of the previous generation. The corporation state counts on that. Defendant remembers the way it was.
The standard should be “tickets per mile” - not the mere number of tickets
Douglas Palaschak began driving at age 11. At age 23 he moved to Houston, Texas, having received his Diploma in Mechanical Engineering from the University of Illinois. Up to that day he had received only one traffic ticket in his life. Suddenly in Texas he was receiving several tickets every year. Suddenly he was a criminal with a warrant out for his arrest. He was the same excellent driver. He was thrust into the predatory ticket racket. These same cops in Houston were convicted of stealing cars - in cooperation with the tow truck drivers. That same predatory game happens on the highways of Wisconsin and it happened her to Paul Staples, a safe and courteous experienced wonderful driver.
We use the road as common tenants - not as renters from the state
Stealthy encroachment at work: The state counts on this generation to forget that we use the roads as tenants in common - not as licensees! Teodor Marian (a Romanian immigrant who immigrated to Ventura California) ( http://groups.yahoo.com/group/Teodor_state_citizen/ ) and his Mentor Richard McDonald (http://www.state-citizen.org )have researched this vein. By looking back at old disputes regarding roads, rivers, and other ways of passage, we see clearly that the view was that public property is nothing more than property held in common tenancy for use by the public.
Comparison of Tenant in Common to Licensee
The licensee must request the license from the licensor, he cannot demand it from him. The licensor cannot require the licensee to take his license under the licensee has encroached upon the thing or act that the licensor has competent authority over. You cannot demand a liquor license. By comparison you can use the road without even demanding anything. It is there to be used by all.
The Nature of a License: permission to do something that one otherwise may not do.
You may not hunt pheasant in my corn field without my permission. However, we each have the right, barring abuse, to use the road. We are tenants on common on the road.
To license means to confer on a person the right to do something which otherwise he would not have the right to do. City of Louisville v Sebree (19__) 214 SW 2nd 248, 308 Ky 420
The state cannot sell a right to drive; it was already ours.
The object of a license is to confer a right or power, which does not exist without it. Payne v. Massey (19__) 196 SW 2nd 493, 145 Tex 273.
The word “license” means permission, or authority; and a license to do any particular thing, is a permission or authority to do that thing; and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize. Gibbons v. Ogden (Feb 1824) 22 US 1, 6 L Ed 23, 9 Wheat 1.
Supreme Court’s Views on the right to Locomotion
A good place to start is Edwards v California (1941) 314 U.S. 160. The court held that a state may not condition interstate travel
upon wealth (Be sure to read the footnote by clicking on the following box or icon.)
. I contend that the driver license scheme is
merely a regressive tax and therefore an impermissible barrier to interstate commerce. People are commerce. Interstate commerce
includes, ironically, instate commerce, for purpose of this analysis.
The Department of Motor Vehicles has by stealthy encroachment overstepped its bounds
There is a case that says that all administrative law is unconstitutional. We need not be that drastic. Certainly there are some things that the Department of Motor Vehicles can do lawfully. They can assist in transferring title of a car. They can administer a driver test. Even if the state legislature cooperates and passes a “statute” for the motor vehicle code, that “statute” is really more like a “regulation” in that even the legislature has no power to impede commerce absent compelling state interest.
The Supreme Court said in U.S. v Mersky (1960) 361 U.S. 431: An administrative regulation, of course, is not a "statute." While in practical effect regulations may be called "little laws," 1. 7 they are at most but offspring of statutes.” I cite this case only to point out that indeed there is a difference between regulations and statutes. Furthermore, not all laws are created equal. Furthermore, a statute that regulates without constitutional authority is a nullity even though it be published in the books, recognized by the police and lowers courts, and even though it be unchallenged for decades. Such is current state of driver license laws in these United States. We are in the age of government excess. Over half the working people work for some form of government. By manipulating the money, by imprisoning dissenters, by owning the bulk of the stock of public corporations, by deceptive bookkeeping, and by other oppression, fraud, and malice, the governments have lulled the populace into a belief in the presumed regularity of whatever the government says. Well, I am here to tell you it aint so!
Supreme Court’s older Traditional View of Right to Travel
"The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common law right which he has under the right to life, liberty, and the pursuit of happiness." Thompson v. Smith, 154 SE 579.
"The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived." Chicago Motor Coach v. Chicago, 169 NE 221.
"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.
"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.” American Jurisprudence 1st Edition, Constitutional Law, Sect.329, p.1135.
The leading cases regarding travel in general are:
Kent v. Dulles, 357 U.S. 116 (1958)
Aptheker v. Secretary of State, 378 U.S. 500 (1964)
Zemel v. Rusk, 381 U.S. 1 (1965)
United States v. Guest, 383 U.S. 745 (1966)
Shapiro v. Thompson, 394 U.S. 618 (1969)
Oregon v. Mitchell, 400 U.S. 112 (1970)
Graham v. Department of Pub. Welfare, 403 U.S. 365 (1971)
States may not compact with each other without permission of Congress.
Consider the compact by which all states seem to want you to have a driver license from one state only.
U.S. Constitution: Art. 1 Section 10, Clause 3: “ No state shall, without Consent of Congress, . . . enter into any Agreement or Compact with another State. . .”
Some cases that flesh out the difference between “rights” and “privileges”
The permission or license is a special right or privilege. Once a license exists only the licensee has he right to do the thing the licensor allows. The licensee is privileged over others who do not have a license. It thus is a privilege to have the right to do the thing that is licensed. In other words, the right or permission granted by the licensor is a privilege since he controls who can and who cannot exercise the right. If the licensor grants the licensee a right or benefit, it is called a privilege:
The word privilege is defined as a peculiar benefit, favor, or advantage, a right or immunity not enjoyed by all, or it may be enjoyed only under special conditions. Knoll Golf Club v U.S., 179 F Supp 377
Since the right or permission to do a thing is called a license, and since the right is “peculiar” to the licensee alone, the license is called a privilege. Anything that requires a license is a privilege.
A license for the sale of intoxicating liquor is a privilege. Chiordi v Jernigan 129 P 2nd 640, 642; 46 NM 396.
Even privileges must be administered even-handedly. Authority: Equal Protection Clause.
Also, grandfather clauses, and implied clauses, forbid the state to take away a vested right.
Those have the right to do something cannot be licensed for what they already have right to do as such license would be meaningless. City of Chicago v Collins (19__) 51 NE 907, 910.
Also, those things which are considered as inalienable rights, which all Americans possess, cannot be licensed since those are not held to be a privilege.
The right to freedom of speech, freedom of the press, freedom of assembly, and freedom of religious worship are not privileges. Douglas v City of Jeannette 130 F 2nd 652, 655.
A license bypasses a legal barrier or makes an otherwise unlawful act lawful. The nature of a license allows the licensee to do something he could not otherwise legally do. Thus, a license gives the licensee the right to do something that would otherwise be illegal or unlawful for him to do.
A license is a mere permit to do something that without it would be unlawful. Littleton v Burgess, 82 P 864, 866, 14 Wyo 173.
A license is a right granted by some competent authority to do an act which, without such license, would be illegal. Beard v City of Atlanta (__) 86 SE 2nd 672, 676; 91 Ga. App. 584.
A licensee is one privileged to enter or remain on land by virtue of the possessor’s consent, whether given by invitation or permission. Wool v Larner, 26 A 2nd 89, 92, 112 Vt. 431.
The licensor has the power to prohibit. Since the licensor is in the position to grant a right or permission it logically follows that he has the power to prohibit the act also. Likewise, having the power to prohibit something from being done, it follows as a corollary that power also exists to permit its use. Taylor v Smith, 140 Va. 217, 235. Thus, where the power to license exists so does he power to prohibit.
The authority to license implies the power to prohibit, such being the meaning of the term. The City of Burllington v. Bumgardner, 42 Iowa 673, 674.
The power to license necessarily includes the power to inhibit unlicensed persons from doing the acts authorized by license. The power to refuse license necessarily gives the power to limit the issuance of licenses. Ex parte M.T. Dickey, 76 W. Va.576, 585; 85 SE 781.
A license means leave to do a thing which the licensor could prevent. Blatz Brewing Co. v. Collins, 160 P.2d 37, 39; 69 Cal. A. 2d 639.
Since the Motor Vehicles Departments, i.e., licensors, the Motor Vehicles Department(s) can issue or refuse to issue a license and thereby permit or prohibit anyone from exercising the right or privilege they has authority over.
A license carries limitations, restrictions and requirements. Whenever a license is issued the licensee is under certain limitations and requirements established by the Motor Vehicles Department (licensor), which may be implied or expressed when the license was issued. These limitations and requirements are often in the form of rules and regulations and may be referred to as the “terms” of the license, which the licensee is subject to. The following decision reveals these characteristics:
“Licensee,” as used in Pub. St. c. 100, in reference to certain licensees, and providing that no such licensee shall place or maintain any screen, curtain, or other obstruction on the licensed premises, refers to every licensee, and not merely such as have been required by the licensing board to remove a screen, curtain, or other obstruction. Commonwealth v. Rourke, 6 N.E. 383, 384; 141Mass. 321.
Those that are licensed under the statute cited above are restricted in their ability to erect curtains, screens, or other obstructions on their premises due to the terms of the license. It matters not where these terms were directly stated to the licensee or stated in the rules and regulations that cover such licensed businesses, the licensee still becomes subject to the terms of the license. There can be no argument that such terms are unreasonable as the licensor is in authority to make any such rules.
If a city chooses to grant permission [a license] to individuals to conduct a taxicab business in its streets, it can prescribe such terms and conditions as it may see fit, and individuals desiring to avail themselves of such terms and conditions, whether they are reasonable or unreasonable. Eason v. Dowdy, 219 Ga. 555.
Also, any argument that such terms are in violation of one’s rights has no legal standing. When person(s) takes a license, he in effect must waive any rights that would otherwise conflict with the terms of the license. The licensor has the authority over the thing being licensed therefore his term must prevail over the rights of the licensee and out of respect of the licensor’s right to control the thing or act. Thus, the rights of the licensee are limited by the terms of the license.
The rights of a licensee can rise no higher than the terms of the statute or ordinance by which he became the holder. Steves et al. v Robie, 139 Me. 359, 363.
The licensee must submit to the rules, limitations, and requirements the licensor sets out as the terms of the license.
A license is revocable by the licensor. When a license exists, it is within the power of the Motor Vehicles Department(s) (licensor) to revoke the license at any time this entity wishes.
Permits to carry on a liquor business issued under Liquor Control Act are mere licenses revocable as provided in such act. State v. Hawlew, 44 N.E. 2d 815, 820.
A license, pure and simple, is a mere personal privilege, and it is revocable at law, at the pleasure of the licensor, even when money has been paid for it. River Development Corp. v. Liberty Corp., 133 A. 2d 373, 385; 45 N.J. Super. 445.
A license is one to whom an owner of realty has granted a mere right of occupancy, and such license is revocable at the option of the licensor. Caldwell v. Mitchell, 158 NYS 2d 868, 870.
The licensee cannot possibly revoke the license he is the holder of since he did not give himself the permission or license in the first place. Only the licensor can revoke a license.
The terms and rules of a license are amendable. Restrictions, limitations, and requirements can be added, deleting or modified at a future date and become new terms of the license. Here again only the licensor is able to amend the terms and conditions of the license. Thus, when the licensor makes a requirement after the license is issued, the licensee is subject to that requirement just as though it were an original condition of the license.
The foregoing characteristics of a license reveal the legal principles that potentially exist whenever licensing takes place.
A license is often found under the law of contracts and apparently shares some attributes of contract. However, in its truest sense, a license is not a contract and it has generally been so held.
A license is merely a privilege to do business and is not a contract between authority granting it and grantee nor is it a property right, nor does it create a vested right. Mayo v. Market Fruit Co. of Sanford, Fla.,40 So. 2d 555, 559.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal granting it and the person to whom it is granted, and is not property or a property right. American States Water Services Co. of California v Johnson, 88 P.2d 770, 774; 31 Cal. App. 2d 606.
A license requires that one of the parties have competent authority over the thing or the act involved in the agreement whereas a contract does not. A license can be terminated by one of the parties at any time but a contract cannot. These authorities also show that a license is not property right because it is not in itself property. Neither is a license a vested right but only a privilege.
The Undersigned now brings to light in what manner can a license be used when controlling the acts of individuals that are regarded as “natural rights,” or in exercising [3] “constitutional rights.”
Liberties may not be licensed - although by stealthy encroachment that was the trend
The terms liberty and license are often viewed as two different things. Liberty being a sacred right everyone has, and a license being a grant that is often assigned and documented by way of a piece of paper. This is true where we use these words as if they are commonly understood.
Liberty is viewed as an inherent and inalienable right, and one all free men naturally possess. This is to be distinguished from the type of right given by an individual or government, which is commonly called a license. Thus, the latter is not, and cannot be, considered as a substitute for the former.
However, the technical and legal definition of these two words is actually synonymous.
A license gives one the right or “liberty” to do a certain thing.
Definition: “License”: Leave; permission; authority or liberty given to do or forbear any act. A license may be verbal or written; when written, the paper containing the authority is called a license. A man is not permitted to retail spirituous liquors till he has obtained a license. Webster’s American Dictionary, 1828.