The right to move down this road arises from your right of ingress and egress to and from your own property, and the limits upon any authority to block use of the road by any member of the public. (Photo David Tulis)
Statutes in pari materia, or those relating to the same subject or having a common purpose are to be construed together, and the construction of one such statute, if doubtful, may be aided by considering the words and legislative intent indicated by the language of another statute.
Johnson v. Hopkins, 432 S.W.3d 840 (Tenn. 2013)
It’s not just within the motor vehicle code, but includes the disposal of the public highways and the relationships between the two.
By Hal Anthony / Jefferson Mining District
We routinely use the in para materia requirement in the mining law. It doesn’t come up until some agent attempts to interject their unwarranted administrative authority, usually when they cite some rule or policy which appears to allow that authority. However, applying the in para materia requirement, looking at the whole law and intent, it can be shown the rule or policy could not apply and we respond with that and to make the record. In practice for instance, and why I wanted you to look in Tenn., for its road laws instead of the motor vehicle code, in Oregon there is a provision of road law designating the county as the exclusive authority over the roads, i.e., highways, including importantly, and trails which the motor vehicle code and therefore the motor vehicle department cannot intrude.
These disposal laws predate the motor vehicle code.
Also, clearly, in para materia, the intent of Congress in granting the disposal of public domain to highways, did not provide for mode of use or taxation on the use of the highways or trails. This is true, exampled in the enabling acts of the western states, where in para materia the interpretation of the law severed the interest of the state from the grant land disposals not granted to the states; in part, so these were clear of any remaining or continuing state interest, in particular where the land is disposed to a private use, other than public use; The intent of the enabling acts regarding soil disposal, to grant free and clear title, use, and enjoyment.
Why patent disposals are forever. The western states also have enacted, long ago, statutory acceptance of these highway disposals and the terms for acceptance. So read as a whole, in para materia, the motor vehicle code can’t be applied to the uses Congress disposed to the highways, which grant is for us in the West, of the Missouri river I believe it is, the Lode law of 1866, sec 8. This disposal condition should be the same across the country even with the Lode Law, that free public use of the land disposed to highways is granted and the state has no jurisdiction to condition that common use. That Tenn., taxes *all* uses of the highways ought to violate the in para materia disposal of land to the free public use. Tenn., isn’t the only violator state, but you live there.
What we see in Oregon when we look closer, in part, in para materia, the motor vehicle code is consistent with and defines the land disposed to “highways,” being the Code pertains to commercial, business or profit making, uses only, which arguably is a legitimate regulation authority. The motor vehicle code is limited in scope, therefore, and it must be in para materia. Notwithstanding the current universal application of the motor vehicle code to *all* uses of the highway, it actually pertains to commercial uses. Looking even closer, we see commercial uses of interstate travel is reserved to Congress.
Intrastate has also been included in this where it can be shown to affect interstate commerce, again commerce among the states being the field exclusively occupied by Congress. It appears part of the state regulation is consistent with federal Title 49 regulation which state regulation must be or as long as it doesn’t violate the federal. Additionally, in para materia, Congress could not have reserved any lawful authority to apply commercial regulation authority to *all* uses granted to the public locally without breaching both its reserved authority or its constitutional land disposal grant power or enabling acts.
The outlier to this land disposal power is the right of the people to construct roads as a matter of course at common law, as it were, without either fed or state authority, beforehand, the state government within which the land disposed to highway would have had no authority to regulate or tax either, and bound by.
I will leave the potentially thornier question as to whether intrastate commerce was included in this disposed use and not subject to tax either. But to touch just a bit, these may be resolved when looking at the issue of public road harm and as to accidents and attributing liability, or as to commercial financing, or limited liability, etc., and the state role in these areas appears to be within the power of the state to tax for purposes of maintenance of these extra ordinary “uses” of the highways, but not the granted uses which is the general public free use, strict liability, of the highways. In para materia, such special use case an administrative and taxing authority may be legitimate, but to what thornier points as to extent? We’ll leave these considerations for another day to discuss.
The criminal aspects that might relate to the uses of the highway would have to be, in para materia, consistent with the penal laws of the state. And in para materia, interpretation of those motor vehicle code laws likely are. The problem, as you know, comes where the execution, the executive agent fails to obey that due process or wrongly applies the limited Code to *all* uses of the highway. And then the courts, contrary to the para materia interpretation, don’t recognize the distinctions.
But you’ve just witnessed the courts of Tennessee don’t recognize the entire jurisprudence of Equity. And maybe that’s the other final blow being these matters of land disposal are equity matters. And my experience is the state will not engage a collateral attack using equity jurisprudence against the unwarranted restraint of property, use, or enjoyment, or the appurtenant rights. Everywhere is Houston it seems, and we the people have a problem.
So yes, understanding an in para materia requirement is very important and it’s not limited to within a body of legislation, but extends to all relevant laws and time.
David Tulis is live on the air weekdays 7 a.m. to 11 a.m. on NoogaRadio 96.9 FM and other NoogaRadio Network stations, covering local economy and free markets in Chattanooga and beyond. Nothing here is legal advice; if you want legal advice, find a law firm downtown or on another planet — where the law actually matters.
Government employees will never comply with law because the law requires government employees to keep their hands to themselves OR secure a warrant.