By David Tulis
Our interest in free markets and the assertion of ancient rights in an era of administrative law and the modern total state brings us to a telling phrase.
Are the highways of Tennessee (or your state) “open as a matter of right to public vehicular travel,” or are they closed to the public and available only to a state-approved group of travelers?
Is government permission needed before you get behind the wheel of your car or pickup and steer into the traffic? Or is that bit of lane or that horizon-leading ribbon of highway free for your use as an ordinary person going about private business under a presumption of innocence?
State law pertaining to driver licenses is, by my reading, free market and liberal, making no clear demands that a user of the road obtain a driver license. ‡ Buried elsewhere in Tennessee documents is language that appears borne out in the law. I refer to verbiage of the state of affairs prior to 1937, when the Tennessee legislature passed a motor vehicle act and penned the first versions of what was called prior to 1988 the “Uniform Motor Vehicle Operator’s and Chauffers’ Licenses Law.”
A Tennessee search
A Google search stirs a bit of dust and mold from the archives.
A highway is “A public way for purpose of vehicular travel, including the entire area within the right-of-way. (Urban areas – highway or street, in rural areas – highway or road),” says a “State of Tennessee Strategic Highway Safety Plan.” It says further that a traffic way is “Any road, street, or highway open to the public as a matter of right or custom for moving persons or property from one place to another.”
A highway is “the entire width between boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular traffic.” Words & Phrases entry for highway. The Uniform Vehicle Code definition originally did not refer to the road being “publicly maintained” but used instead the phrase “as a matter of right.” The change occurred at the height of “World War II, in 1944. Tennessee’s southerly neighbor, Alabama, kept for a time its more vigorous definition of highway as “every way or place of whatever nature open to the use of the public as a matter of right for purposes of vehicular travel.”
The Tennessee Code Annotated at 55-8-101 defines “highway” as “[t]he entire width between the boundary lines of every way when any part thereto is open to the use of the public for purposes of vehicular travel.” [Italics mine]
In Franklin, Tenn., a “Street is a way or place, of whatsoever nature, open to the use of the public as a matter of right for purposes of vehicular travel,” according to the town code at the juvenile curfew ordinance (Section 20-102).
Lebanon, Tenn., describes “public place” in a way suggestive of the liberties inherent in the right of movement. “‘Public place’ shall refer to any street, alley, avenue, highway, road, curb area sidewalk, park, playground, public parking lot, or place to which the general public has access and a right to resort for business, entertainment, or other lawful purpose.” In other words, your use of these places cannot of itself be directly taxed, permitted or licensed. You are free to be in these places and to move about unimpeded.
A national standards group in a report about traffic accidents sheds further light on this open “trafficway” by describing that area as “any land way open to the public as a matter of right or custom for moving persons or property from one place to another.” The document also makes a distinction between commercial and private vehicles. In the former category, “A commercial motor vehicle is any motor vehicle used for the transportation of goods, property or people in interstate or intrastate commerce.” Within the category are “privately owned motor vehicles providing transportation of privately-owned goods or property in furtherance of a business enterprise.” Excluded, significantly: “Privately owned motor vehicle providing private transportation of personal property or people.”
You could easily fit into that category, a farmer hauling hay from a pasture side of the road to the stables on the other in a medium truck, a homeowner taking recycling in a “personally owned pickup truck” above 5 tons or a “large family of 10 persons taking a trip in the family’s 12-person van.”
Yeast of administrative law
Tennessee law seems largely to have expunged these references to the right of travel on the public highway. In states such as Washington, the usages are voluminous, making clear to people residing in that state that they enjoy a defensible property right in travel. If these people have the nerve to assert their rights, they might be free of both the financial burden of taxes and the monitoring and surveillance implied in being within the administrative realm of law. (Such realm is outside the constitutional realm, mind you.)
— Colorado offers the following: Colorado – § 155-3. Definitions. [Amended 7-16-96, Ord. 96-12] As used in this Article, the following terms shall have the meanings indicated: “PUBLIC RIGHT-OF-WAY” All streets, roadways, sidewalks, alleys and all other areas reserved for present or future use by the public as a matter of right for the purpose of vehicular or pedestrian travel, utility installation and for snow storage by the Town of Frisco. [Amended 5-2-1989 by Ord. No. 89-16] [Italics are mine]
— In Idaho highway means “means every place of whatever nature open to the use of the public as a matter of right for the purpose of vehicular travel which is maintained by the state of Idaho or an agency or taxing subdivision or unit thereof or the federal government or an agency or instrumentality thereof.” [Italics supplied]
— In Washington state, “Highway,” for the purpose of this chapter only, means the entire width between the boundary lines of every way publicly maintained by the state department of transportation or any county or city when any part thereof is generally open to the use of the public for purposes of vehicular travel as a matter of right. RCW 46.09.020 Definitions. [Italics mine]
Over the decades across the 50 states, the leaven of the administrative concept of driving has filled the nooks and crannies of the transportation provisions of state law. But other parts of state codes reflect the older order. In Tennessee the older order is that prior to 1937, when the state seized authority over roads without amending the constitution. That act and subsequent enforcement suggests the people lost their right to travel and that an ancient liberty exerciseable in 1936 was extinguished.
But was it? The legislature would not have DREAMED of offending the rights of the people. Courts must presume that point. Acts are presumed constitutional, and courts have a duty to make them work. Tennessee courts have a duty to assume the general assembly knew what it was doing when it created the statute for licensing drivers, and that it had no intention of injuring anyone’s constitutional rights. Courts’ great task is to make statutory regimes constitutional, to read into even badly written ones constitutional intentions and a desire to serve the public welfare and in no way damage anyone’s constitutional liberties.
If this presumption is kept in mind, we can look at Title 55 of the Tennessee code and read into the driver license statute not an attack on the right to travel (by the creation of the regulated activity of using motor vehicles in commerce), but a parallel system that exists under the executive branch (Gov. Bill Haslam) in administrative law. In other words, Tennessee’s law does not steal your right to travel. It creates, however, a massive system parallel to that constitutional right into which you enter by application to the department of safety and homeland security. The parallel system is constitutional because it is voluntary, and applies only to those using the roadways for business or profit.
What about cops?
Yes, police departments act presumptively as though traveling by automobile is a crime if you don’t have a driver license. You are charged under the “exhibit on demand” statute.
55-50-351. License to be carried and exhibited on demand — Arrest and penalty for violations.
(a) Every licensee shall have the licensee’s license in immediate possession at all times when operating a motor vehicle and shall display it upon demand of any officer or agent of the department ***
But this statute doesn’t apply to people exercising constitutional rights, but is administrative in its claims only. An administrative rule cannot impose any duty or claim upon the exercise of a constitutional right, though in practice it is made to do so, and the Tennessee bar has not effectively challenged this abuse, and no judge of whom I am aware has tried to stop it.
But practice is not necessarily lawful. And unlawful practice continues until properly challenged.
The yeast of administrative law seems to have filled the whole lump of Tennessee law. But as we see, remnants of the constitutional order are evident in other parts of the law, and in some town ordinances.
David Myrland, an authority on this question in Washington, cites three federal cases in a brief that gets into the weeds in the matter of travel vs. operating a motor vehicle.
The right to travel interstate by auto vehicle upon the public highways may be a privilege or immunity of citizens of the United States. Compare Crandall v. Nevada, 6 Wall. 35. A citizen may have, under the Fourteenth Amendment, the right to travel and transport his property upon them by auto vehicle. But he has no right to make the highways his place of business by using them as a common carrier for hire. Such use is a privilege which may be granted or withheld by the state in its discretion, without violating either the due process clause or the equal protection clause. Packard v. Banton, 264 U.S. 140, 144[.]
Mr. Myrland also cites Buck v. Kuykendall, 267 U.S. 307, 314 (1925).
It will be observed that . . . a highway, within the contemplation of the act, is, “Every way or place of whatever nature open as a matter of right to the use of the public for the purposes of vehicular travel.” There can be no question but that this definition is broad enough to include streets in incorporated cities, because they are open as a matter of right to the use of the public for the purposes of vehicular travel.
Mr. Myrland sent this document in 2006 to the federal attorney general Alberto Gonzalez. But the pebble slapped the surface of the waters without making a ripple. Thousands of other such complaints, filings, petitions, administrative notices and SSN rescission papers have done likewise — been submitted with nary a reply. Mr. Myrland crows that his analysis is unrebutted and presumptively true. http://wevgov.com/01_pages/public.vehicular.travel/PVT_complaint.htm
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‡ The driver license statute, at its gateway, says this: “very person applying for an original or renewal driver license ***” at 55-50-301. People who use the roads at liberty are often harassed by being charged under TCA 55-50-351.
55-50-351. License to be carried and exhibited on demand — Arrest and penalty for violations.
(a) Every licensee shall have the licensee’s license in immediate possession at all times when operating a motor vehicle and shall display it upon demand of any officer or agent of the department or any police officer of the state, county or municipality, except that where the licensee has previously deposited the license with the officer or court demanding bail, and has received a receipt from the officer or the court, the receipt is to serve as a substitute for the license until the specified date for court appearance of licensee or the license is otherwise returned to the licensee by the officer or court accepting the license for deposit. Any peace officer, field deputy, or inspector of the department, or any other law enforcement officer of this state or municipality thereof, has the right to demand the exhibition of the license of any operator of a motor-driven cycle as described in § 55-8-101, and effect the arrest of any person so found to be in violation of this section. [Italics added]
Gov. Phil Bredesen, “State of Tennessee Strategic Highway Safety Plan,” revised 2012, pp 24, 27. http://www.tn.gov/assets/entities/tdot/attachments/StrategicHighwaySafetyPlan.pdf
Highway, Words & Phrases (a legal encyclopedia). https://books.google.com/books?id=f3xPAAAAMAAJ&pg=PA7&lpg=PA7&dq=tennessee+public+vehicular+travel+matter+of+right+open+as+a&source=bl&ots=jNO3Xr40GT&sig=mOXegxtoFhUQC0AsLsnJskiy47I&hl=en&sa=X&ved=0CDwQ6AEwBWoVChMI4cb9qPifxwIVDG0-Ch1qdw4q#v=onepage&q=tennessee%20public%20vehicular%20travel%20matter%20of%20right%20open%20as%20a&f=false
Franklin, Tenn., city code, “Juvenile Curfew Ordinance,” Sec. 20-102. https://www.municode.com/library/tn/franklin/codes/code_of_ordinances?nodeId=PTIICOOR_TIT20MI_CH1JUCU
“ANSI D16.1-2007 Manual on Classification of Motor Vehicle Traffic Accidents,” 2007, American National Standards Institute, Page 3, 7. http://www-nrd.nhtsa.dot.gov/Pubs/07D16.pdf