Right to travel

Role of Class D driver license in state’s scam of public

Americans from childhood are taught that all travel by car is subject to the blue lights of police power, and that all users of the car or truck must have a driver license to use such conveyance on the road. (Photo Chattanooga police department)

In view of our later decisions, we have no hesitation in holding that the Legislature may declare it to be a privilege to operate pleasure cars over the turnpike roads of our counties. Such operation amounts indeed to the pursuit of an occupation with many, although not for gain.

Ogilvie v. Hailey, 141 Tenn. 392, 210 S.W. 645, 647 (1919)

A Class D license without for-hire endorsement would be required of anyone using the roads in commerce for private commercial non-for-hire use.

That would include plumbers, engineers, meter readers, etc.  What they don’t tell you is that you are allowed to use your automobile in any non-commercial private capacity whatsoever. 

The reason they don’t say this is BECAUSE license and registration is NOT REQUIRED for ordinary recreational use of the roads such as —

➤ Traveling to church

➤ Going to the grocery store

➤ Traveling to and from work

➤ Traveling to school.

The only time a driver license is required at all is when the use of the roads is being made in the pursuit of some type of financial gain, consideration, or remuneration. That is:

➤ Plumbers going to jobs

➤ Engineers surveying land

➤ Attorneys traveling to court, etc.

The bartender meets Joe Sixpack

Joe Sixpack traveling to and from the beer hall wouldn’t need a license but the barkeep that owns the beer hauler would if he used the roads to go purchase beer to stock his bar.   

It’s the same reason I am required to have one simply because I use the roads to go make housecalls for my computer repair business in Sparta or pick up parts in Nashville.    

If I were not engaged in commerce and simply hauled my personal household goods back and forth, I wouldn’t need one. If I go pick up a computer and bring it back to my shop to work on, I do need a driver license.

Similarly,  you could be employed by someone that would require you to occasionally drive in the furtherance of your employment on behalf of the employer. In such cases you would be required to have a driver license because your use of the roads would be on their behalf and as their “agent in commerce” they could bear some degree of liability for having dispatched you on their behalf. 

Totally private users of roadway

Most people do NOT need a Class D driver license. But it is assumed that they do, especially when they voluntarily make an application for it.  In doing so, they are essentially confessing to the State their intention to use the roads in a commercial capacity simply by making an application for a license to engage in such privilege use.   

Members of the public have been duped by the obfuscation and conflation of terms which are intentionally ambiguous.  

Clearly, the state has a financial interest in being obfuscatory but they haven’t engaged in outright fraud in doing so since words have multiple meanings and the state cannot possibly know or second-guess the mind of the applicant.  The state simply assumes that the applicant understands what he or she is applying for when that person fills out the application.   

Once licensed, the applicant subjects himself to the regulatory scheme which requires the registration of the car as a motor vehicle and proof of insurance to be in commerce.

In the case of a radio station owner and journalist, if you used your automobile to make sales or solicit potential advertisers, your use of the roads would be in pursuit of commerce or “financial gain” on behalf of your employer/company.  

If you were not engaged in any type of commerce or perhaps transporting potential clients to and from lunch you would not require a class D license. For instance, our trip to Franklin, Tenn., in November 2021 in capacity as “reporters” would require a Class D license. If we traveled there “in private” as mere taxpaying citizens it would not.

Our use of the roads would simply be “recreational” or “ordinary use of the roads” which the Supreme Court has repeatedly ruled upon that we have the right to do.

Dent in our argument

This website has strongly suggested, and Tulis Report on the air has strongly argued, that traffic cases are tax cases in the nature of privilege enforcement. The site has indicated that a proper defense to any number of criminal charges touching on the use of the roads by private people touches on the activity of the traveler at the time of the confrontation. If that traveler is not using the roadway for a commercial purpose — as a common or private carrier in the middle of contract or employment work — then his defense is that it matters not the status of any license, since at the moment he is not “on” the license, not using it, not doing the activity subject to the license requirement. The traveler’s defense is that the officer has no evidence to offer the court that he has been involved in commercial activity as user of the road, regardless of whether the place of business is a computer shop or the roadway itself (as among truckers, haulers, bus operators and the like).

The analysis holds that the activity is taxable and regulable — the activity of using the road or private profit and gain as an instrumentality in commerce. But there is a headwind against this analysis.

We also have made clear that the privilege tax can apply to a single act or transaction, Seven Springs Water Co. v. Kennedy, 156 Tenn. 1, 299 S.W. 792, 793 (1927); State ex rel. Ormes v. Tenn. Finance Co., 152 Tenn. 45, 269 S.W. 1119, 1119-20 (1925), and is not limited to a business or pursuit of an occupation. Knoxtenn Theatres v. Dance, 186 Tenn. 114, 208 S.W.2d 536, 538 (1948) (purchase of theater tickets); Ogilvie v. Haley, 141 Tenn. 392, 210 S.W. 645, 647 (1919) (operation of automobiles for pleasure).

This could put a dent in our current thinking. Here’s the case, with pertinent material about this issue marked out in bold.

1919 ruling OK’ing tax on pleasure use

Ogilvie v. Hailey, 141 Tenn. 392, 210 S.W. 645, 646–47 (1919)

The bill in this cause was filed to enjoin the collection of a privilege tax on automobiles used for pleasure, applicable to Davidson county. It is averred that the statute authorizing this tax is unconstitutional. A demurrer was interposed, which was sustained by the chancellor, and the complainants have appealed to this court.

123 Some criticism is made of the form of the demurrer. It is insisted that it is too broad in its terms to be considered. Where a bill is bottomed on the unconstitutionality of a statute, it is the duty of the complainant to point out and state with particularity the details of the supposed conflict of the statute with the organic law. In such a case a demurrer which challenges generally the legal conclusions of the bill is sufficient. Every intendment is in favor of the statute and against the attack, and the complainant must lay his grounds of attack with the precision ordinarily required of a demurrant.

The statute involved is chapter 407 of the Private Acts of 1915, entitled:

An act to provide revenue by assessing a privilege tax in counties having a population of from 149,000 to 190,000 inhabitants by the federal census of 1910, or any subsequent federal census, on automobiles and motorcycles used for pleasure, to oil the turnpike roads of said county which are under the supervision of the turnpike board.

Section 1 of the act provides that a privilege tax shall be collected in the counties named, by the county court clerk, on all automobiles and motorcycles used for pleasure, of $7.50 on seven–passenger automobiles, $5 on five–passenger automobiles, $3 on two–passenger automobiles, and $2 on motorcycles, and it is provided that said tax is to be paid annually to the county court clerk, as other privilege taxes.

Section 2 provides that the owners of such vehicles shall pay said privilege tax in advance, and that any violation of the act subjects them to payment of a penalty of $25, and that said tax and penalty shall be a lien on said machines.

Section 3 provides that it shall be the duty of the county court clerk to turn over to the county trustee all collections under this statute, to be placed by the trustee “to the credit of account for oiling turnpikes in said counties.”

The foregoing act, as stated, was passed by the Legislature of 1915. Prior to this was chapter 141 of the Acts of 1907, creating a turnpike board for Davidson county. Omitting reference to other Davidson county road laws, by chapter 441 of the Private Acts of 1917, a board of highway commissioners was created for Davidson county, which was given charge of all the highways of the county, both turnpikes and roads, and it was provided in the act of 1917 (section 15) that––

All funds assessed for pike and district road purposes shall be collected by the county trustee, as now provided by law and shall be paid out on the warrants of the county judge on orders signed by the superintendent of road, and countersigned by at least two members of the board of highway commissioners.

The bill herein was filed July 19, 1917, after the aforesaid act of 1917 was passed. Therefore, at the time this suit was brought, there was in force chapter 407 of the Private Acts of 1915, herein attacked, and chapter 441 of the Private Acts of 1917, creating the board of highway commissioners, and conferring *647 upon such board jurisdiction of the turnpike roads of Davidson county.

So far as these complainants are concerned, these two acts must be construed together, in pari materia, as part of the same scheme of legislation. This latter observation removes some of the objections urged to the act of 1915 by the complainants herein, and by Mr. Shannon in the Annotations in his new Code. For the purpose of this suit, both these statutes may be treated as one.

45 It is first insisted that the taxation of automobiles used for pleasure and failure to tax automobiles used for business is an arbitrary and unconstitutional discrimination.

The later decisions of this court and of the Federal Supreme Court have conceded to the Legislature a very wide range of discretion in the matter of classification in police statutes and revenue statutes. The idea is that, if any possible reason can be conceived to justify the classification, it will be upheld. State v. McKay, 137 Tenn. 280, 193 S. W. 99, Ann. Cas. 1917E, 158; City of Memphis v. State ex rel., 133 Tenn. 83, 179 S. W. 631, L. R. A. 1916B, 1151, Ann. Cas. 1917C, 1056; Motlow v. State, 125 Tenn. 547, 145 S. W. 177, L. R. A. 1916F, 177––and federal cases reviewed in these three decisions.

It is possible that automobiles used for pleasure run more rapidly and are more destructive to the county roads. It is possible that no automobiles are used for business purposes except in the interest of a business that itself pays a privilege tax. It is possible that other reasons may exist for this discrimination, which we think of, and we are not disposed to say that this classification is arbitrary and unreasonable.

It is next insisted that the use of automobiles for pleasure cannot be declared a privilege, inasmuch as such use is not the pursuit of any business or occupation, and it is sought to limit a privilege to such pursuits.

While some of our older cases apparently justify these arguments, later decisions of this court declare that the doing of a single act may be declared a privilege. The right to inherit may be declared a privilege. State v. Alston, 94 Tenn. 674, 30 S. W. 750, 28 L. R. A. 178.

The transfer of property to a foreign corporation may be declared a privilege. State ex rel. v. L. & N. R. R. Co., 139 Tenn. 406, 201 S. W. 738.

The right of registration may be declared a privilege. State ex rel. v. American Trust Co., 208 S. W. 611.

In view of our later decisions, we have no hesitation in holding that the Legislature may declare it to be a privilege to operate pleasure cars over the turnpike roads of our counties. Such operation amounts indeed to the pursuit of an occupation with many, although not for gain.

It is again urged that the caption of the act does not conform to its body. We have carefully examined the statute, and think this objection is hypercritical and unsound, and does not merit discussion.

It is also said that the act is unconstitutional in that it authorizes the collection of this privilege tax by the county court clerk to be turned over to the county trustee, to be placed to the account for oiling turnpikes, but that it nowhere contains any provisions for the expenditure of said fund nor authorizes the payment of such fund, when collected, to any public purpose or good.

The latter criticism is entirely obviated by construing this act in connection with the act of 1917, which does provide exactly how the taxes raised for road purposes shall be appropriated and paid out.

It is finally insisted that the penalty of $25 provided by the act is so excessive as to be invalid, and it is argued that this vitiates the entire statute.

There is no question of the penalty involved in this case, and we do not find it necessary to pass on the validity of this portion of the statute. If it were involved, and should be held to be excessive and unconstitutional, the penalty could be easily elided without affecting the remainder of the statute, and this course would doubtless be followed by the court.

We are of opinion that there is no error in the decree of the chancellor, and the same is affirmed.

Ogilvie v. Hailey, 141 Tenn. 392, 210 S.W. 645, 646–47 (1919)

This 20-page legal notice lets you fight back vs. illicit ‘traffic stops’ — sue for damages, have defense in your criminal case 

http://s6.voscast.com:7162/stream David show live 7A, repeating 6P weekdays

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