Ken Smith, right, city council member, talks with a constituent as members Jerry Mitchell, left, and Chip Henderson chat after a meeting. The city has been under transportation administrative notice nearly two years. (Photo David Tulis)

When the privilege ends, the power of regulation ceases. — Munn v. Illinois, 94 U.S. 113 (1876)

Despite what Attorney Phil and other guild pals might say, the conflict between the people and the state over the right of liberty boils down to privilege.

By David Tulis / NoogaRadio 92.7 FM

Police abuse = privilege enforcement. Jim Crow = conversion of right into privilege.

If a citizen has a state privilege, he is limited in claims he might make about his rights. If his rights are premised on the privilege, the rights take a back seat to the grant of favor by state government. Because traffic enforcement is a broad claim about state privileges, judges can rightly insist the constitution doesn’t apply and is irrelevant.

City of Chattanooga has been under transportation administrative notice two years, and refuses to account for the operation of its police department, which notice indicates is operating against users of autos and others illegally, outside the scope of the Tennessee privilege regulation scheme of administrative law in two titles of the state code.

The driver license is the most commonly held privilege in all of the 50 states. One obtains by application the privilege of driving and operating a motor vehicle in the occupation of transportation/freight/hauling/trucking/shipping. Driving is a privilege because it is part of an occupation. No one dare drive or operate a motor vehicle without written evidences of that privilege being in good standing, the tax having been paid, the formularies in order, the prerequisites met.

Given lawyerly misdirection about the nature of the conflict, a review today on privilege is not stooping to pedantry or stating the obvious.

Travel cases hinge on a proper understanding of privilege. The job of freedom-loving people is establishing an activity (such as roadway travel) that the accused must prove is apart from the privileged activity of driving.

Jim Crow in Chattanooga and Hamilton County — as across the state — runs on the enforcement of the privilege law in Tenn. Code Ann. § Title 55, motor and other vehicles. In this discriminatory scheme of privileges are ground up the bodies and lives of blacks, immigrants, the poor (orphans and widows, we could say) and everybody else. 

The biggest basis of state abuse of the people is through that body of law.

‘Beyond the common advantages of others’

“PRIVILEGE. A particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens,” says Black’s law dictionary. “An exceptional or extraordinary power or exemption. A right, power, franchise, or immunity held by a person or class, against or beyond the course of the law. [citations omitted] *** An exemption from some burden or attendance, with which certain persons are indulged, from a supposition of law that the stations they fill, or the offices they are engaged in, are such as require all their time and care, and that, therefore, without this indulgence, it would be impracticable to execute such offices to that advantage which the public good requires.*** A peculiar advantage, exemption, or immunity. [citations omitted, emphasis added]

Sue cop as oppressor, defend self in traffic court: Transportation Administrative Notice

“To operate a motor vehicle on the public highways of this state…… is wholly separate from the right to travel. The ability to drive a motor vehicle on a public highway is not a fundamental ‘right.’” See Goats v. State, 211 Tenn. 249, 364 S.W.2d 889, 891 (Tenn.1963) (emphasis added); Sullins v. Butler, 175 Tenn. 468, 135 S.W.2d 930, 932 (Tenn. 1940) (citations omitted). Instead, it is a revocable “privilege” that is granted upon compliance with statutory licensing procedures. See Reitz v. Mealey, 314 U.S. 33, 36, 62 S. Ct. 24, 26-27, 86 L. Ed. 21(1941), overruled in part by, Perez v. Campbell, 402 U.S. 637, 91 S. Ct. 1704, 29 L. Ed. 2d 233 (1971); Goats, 364 S.W.2d at 891; Sullins, 135 S.W.2d at 932. 08/22/97. State of Tennessee v. Robert K. Booher No. 01C01-9604-CC-00131.

“It is well settled that ‘the ability to drive a motor vehicle on a public highway is not a fundamental right. Instead, it is a revocable privilege that is granted upon compliance with statutory licensing procedures.’” State v. Ferrell, No. M2007-01306-CCA-R3-CD (Tenn.Crim.App. 08/07/2009)

Clarity from 19th century court

“The essential elements of the definition of privilege is occupation and business, and not the ownership simply of property, or its possession or keeping it. The tax is on the occupation, business, pursuits, vocation, or calling, it being one in which a profit is supposed to be derived by its exercise from the general public, and not a tax on the property itself or the mere ownership of it. *** The legislature cannot, under our constitution, declare the simple enjoyment, possession, or ownership of property of any kind a privilege, and tax it as such. It may declare the business, occupation, vocation, calling, pursuit, or transaction,by which the property is put to a peculiar use for a profit to be derived from the general public, a privilege and tax it as such, but it cannot tax the ownership itself as a privilege. The ownership of the property can only be taxed according to value.”) Phillips v. Lewis, 3 Shann. Cas. 231.

A problem defendants on liberty issues have had is that DAs misdirect and judges, especially in rural counties, find the travel / transportation distinction outlandish. But the law is the law, even if city attorneys such as Phil Noblett refuse to recognize it and insist that policy from the high court controls, not black-letter law.

“Legislative intent or purpose is to be ascertained primarily from the natural and ordinary meaning of the language used, when read in the context of the entire statute, and without any forced or subtle construction to limit or extend the import of the language.” Janice Lacroix, et al v. L.W. Matteson, Inc., et al., No. E2011-01702-COA-R3-CV (Tenn.App. 05/29/2012) 

The natural and ordinary meaning of the language used by the “common man” to describe the privilege activity of transportation moving freight and passengers, is consistent with the judicial definitions and legislative intent adhering to constitutional standards.

“The streets belong to the public, and are primarily for the use of the public in the ordinary way. Their use for the purposes of gain is special and extraordinary, and, generally at least, may be prohibited or conditioned as the legislature deems proper. *** 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 or permission. In the latter case, the power to exclude altogether generally includes the lesser power to condition, and may justify a degree of regulation not admissible in the former.” See Davis v. Massachusetts, 167 U. S. 43. Packard v. Banton, 264 U.S. 140 (1924) No. 126.

“It cannot be denied that the Legislature can name any privilege a taxable privilege and tax it by means other than an income tax, but the Legislature cannot name something to be a taxable privilege unless it is first a privilege. …..’A privilege is whatever business, pursuit, occupation, or vocation, affecting the public, the Legislature chooses to declare and tax as such.’” Corn et al. v. Fort, 170 Tenn. 377, 385, 95 S.W.2d 620, 623, 106 A.L.R. 647. 

African-Americans in Chattanooga and across the U.S. spent much energy during Martin Luther King Jr. week fulminating against racial injustice. But an essential form of servitude is created by chaining individuals to their houses by using police power to force every user of the road into commerce by the privilege system. Only now the class is not racial, but in terms of power. The weak are subject, the strong impose upon them lawless compunction.

“Privileges are special rights, belonging to the individual or class, and not to the mass; properly, an exemption from some general burden, obligation or duty; a right peculiar to some individual or body.” Lonas v. State, 50 Tenn. 287, 307. 06/06/60 JACK COLE COMPANY v. Alfred T. MacFARLAND, 337 S.W.2d 453, 206 Tenn. 694 

Thompson v. Smith, 154 SE 579, 11

“The right of a 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 a common right which he has under his right to life, liberty and the pursuit of happiness. Under this constitutional guaranty 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.”

 When privilege ends, regulation ceases

An important case highlighting the distinction between transportation and travel touches on the line between right and privilege. Where one starts, the other ceases.

It is only where some right or privilege is conferred by the government or municipality upon the owner, which he can use in connection with his property or by means of which the use of his property is rendered more valuable to him, or he thereby enjoys an advantage over others, that the compensation to be received by him becomes a legitimate matter of regulation. Submission to the regulation of compensation in such cases is an implied condition of the grant, and the State, in exercising its power of prescribing the compensation, only determines the conditions upon which its concession shall be enjoyed. When the privilege ends, the power of regulation ceases. Munn v. Illinois, 94 U.S. 113 (1876)

The David Tulis show is 1 p.m. weekdays, live and lococentric.


  1. John Ballinger

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.