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  1. #61
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    Default Re: Is Driving a Privilege or a Right

    Police powers are the fundamental right of a government to make all necessary laws. In the United States, state police power comes from the Tenth Amendment to the Constitution, which gives states the rights and powers "not delegated to the United States." States are thus granted the power to establish and enforce laws protecting the welfare, safety, and health of the public.(1)

    Police power is exercised by the legislative and executive branches of the various states through the enactment and enforcement of laws. States have the power to compel obedience to these laws through whatever measures they see fit, provided these measures do not infringe upon any of the rights protected by the United States Constitution or in the various state constitutions, and are not unreasonably arbitrary or oppressive. Methods of enforcement can include legal sanctions, physical means, and other forms of coercion and inducement. Controversies over the exercise of state police power can arise when exercise by state authorities conflicts with individual rights and freedoms.

    The right of states to make laws governing safety, health, welfare, and morals is derived from the Tenth Amendment, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." State legislatures exercise their police power by enacting statutes, and they also delegate much of their police power to counties, cities, towns, villages, and large boroughs within the state.

    Police power does not specifically refer to the right of state and local government to create police forces, although the police power does include that right. Police power is also used as the basis for enacting a variety of substantive laws in such areas as Zoning, land use, fire and Building Codes, gambling, discrimination, parking, crime, licensing of professionals, liquor, motor vehicles, bicycles, nuisances, schooling, and sanitation. (2)

    Cases:

    Hendrick v. Maryland 235 U.S. 610 (1915)

    "The movement of motor vehicles over highways, being attended by constant and serious dangers to the public and also being abnormally destructive to the highways, is a proper subject of police regulation by the state.

    In the absence of national legislation covering the subject, a state may prescribe uniform regulations necessary for safety and order in respect to operation of motor vehicles on its highways, including those moving in interstate commerce."

    Hess v. Pawloski 274 US 352 (1927)

    "Motor vehicles are dangerous machines; and, even when skillfully and carefully operated, their use is attended by serious dangers to persons and property. In the public interest the State may make and enforce regulations reasonably calculated to promote care on the part of all, residents and non-residents alike, who use its highways."

    Reitz v. Mealey 314 US 33 (1941)

    "The use of the public highways by motor vehicles, with its consequent dangers, renders the reasonableness and necessity of regulation apparent. The universal practice is to register ownership of automobiles and to license their drivers. Any appropriate means adopted by the states to insure competence and care on the part of its licensees and to protect others using the highway is consonant with due process."


    Also see:

    Oklahoma City University Law Review, Vol. 30, p. 245, 2005

    "Driving an automobile is a privilege, not a right, according to the prevailing laws of every jurisdiction of the United States."
    *****
    I may not always be right, but I am never wrong.

  2. #62
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    Default Re: Is Driving a Privilege or a Right

    I have studied these cases and Prouse is in my list of defense. The Hess & Reitz cases, are countered by another case I have which says automobiles aren't inherently dangerous.
    I''ve currently just awoken from 3 hours sleep within the past 30 plus hours and the keyboard on this old phone keeps messing up. As for the Oklahoma case, "driving" is commercial per canon.
    I'll provide more details after additional sleep and the return to my computer which provides easier access than this 7-8 year old phone I'm currently using.

    One last quick comment: None of these cases matter if my OP is correct and the state of TN can only tax commercial vehicles as a privilege per The TN Supreme rulings which I have provided.

  3. #63
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    Default Re: Is Driving a Privilege or a Right

    Quote Quoting Edward333
    View Post
    One last quick comment: None of these cases matter if my OP is correct and the state of TN can only tax commercial vehicles as a privilege per The TN Supreme rulings which I have provided.
    That is not correct, but even if it were, that would not help you. If you were correct you could challenge the tax (and I assume you think the fees for licenses and registrations amount to a tax, but I doubt very much the state courts will see it that way) but that would still not affect the requirement that you must have a license or that you might register your vehicle. It would just mean you wouldn't have to pay anything to get them. Even if the fees are a tax, it would appear that the state does have the power to tax it. The Tennessee constitution allows the legislature to tax privileges, and the Tennessee Courts have already said driving — all driving, not just commercial driving — is a privilege in the cases I cited earlier. That would seem to settle the matter.

  4. #64
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    Default Re: Is Driving a Privilege or a Right

    Really, this is tiresome. You (OP) and your ilk, all use the same tired argument and make all of the same worn out arguments. That these threads all stretch so long is pretty amazing.

    If you're so sure that you're right, and you all are, you would've gained some ground somewhere by now...but you haven't. If you, OP, are so sure of your argument then go and put it forward but be prepared to lose.
    "Where do those stairs go?"
    "They go up!"

  5. #65
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    Default Re: Is Driving a Privilege or a Right

    Quote Quoting Edward333
    View Post
    SO TECHNICALLY : Person as used in the TCAs does not include the sovereign, which we are. But once again, I'm not going that route.
    It's good you aren't going that route, because your conclusion is not correct. A person does indeed include persons, and while the people as a whole may be considered sovereign, individuals are not. Individuals are persons under the law. The phrase you bolded "sovereignty itself remains with the people" refers the people as a whole, i.e. the people of the state collectively. It is not referring to individuals, and that is why your conclusion is flawed.

  6. #66
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    Default Re: Is Driving a Privilege or a Right

    Quote Quoting Edward333
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    Is a license required for a hang glider, glider, ultralight or a para-sail? The law use to be that a person could fly within so many feet (I think it was in the 50-500ft range) and a license wasn't required. Excluding, restricted air space.
    A glider, yes a license is required. And while aircraft laws have nothing to do with driving a car I'll carry out your comparison with a license isn't for a bicycle, your feet or even very low powered scooters. And consider the roads streets and highways as "restricted driving space."

    Now again, please let us know how all this works out for you in court.

  7. #67
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    Default Re: Is Driving a Privilege or a Right

    Nope, there's no MINIMUM altitude below which the FAA does not have authority. The reason hang gliders and true ultralights do not require licenses is that the FAA has specifically exempted them (14 CFR 103). The 200 foot rule is again idiots misinterpretting FAA policy. Below 200 feet (and not in the immediate vicinity of airports) the FAA construes that man-made structures do not impact air commerce and are exempt from many rules (construction permit, lighting, etc...). But again, that doesn't abdicate policy down to the ground.

  8. #68
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    Default Re: Is Driving a Privilege or a Right


  9. #69
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    Default Re: Is Driving a Privilege or a Right

    He won't be back. Since we all know he's going to lose big time in court, just as everyone else who's tried this dead argument has lost in court, there's no way he's going to come back and admit it.

  10. #70
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    Default Re: Is Driving a Privilege or a Right

    Quote Quoting cbg
    View Post
    He won't be back. Since we all know he's going to lose big time in court, just as everyone else who's tried this dead argument has lost in court, there's no way he's going to come back and admit it.
    If I lose in court, it means 6 months in jail. So, it would be awhile depending on appeal etc, if and when I can let anyone here know.

    Quote Quoting flyingron
    View Post
    Nope, there's no MINIMUM altitude below which the FAA does not have authority. The reason hang gliders and true ultralights do not require licenses is that the FAA has specifically exempted them (14 CFR 103). The 200 foot rule is again idiots misinterpretting FAA policy. Below 200 feet (and not in the immediate vicinity of airports) the FAA construes that man-made structures do not impact air commerce and are exempt from many rules (construction permit, lighting, etc...). But again, that doesn't abdicate policy down to the ground.
    I never said otherwise. I simply asked the questions, and stated what I "Thought" the rule used to be.

    Quote Quoting Taxing Matters
    View Post
    That is not correct, but even if it were, that would not help you. If you were correct you could challenge the tax (and I assume you think the fees for licenses and registrations amount to a tax, but I doubt very much the state courts will see it that way) but that would still not affect the requirement that you must have a license or that you might register your vehicle. It would just mean you wouldn't have to pay anything to get them. Even if the fees are a tax, it would appear that the state does have the power to tax it. The Tennessee constitution allows the legislature to tax privileges, and the Tennessee Courts have already said driving — all driving, not just commercial driving — is a privilege in the cases I cited earlier. That would seem to settle the matter.
    Jack Cole v. McFarland is why there isn't a State income tax. It has not been overruled. It also says a privilege is business or occupation as stated in the Phillips v. Tax collectors case. And per canon, since it is used in the TN constitution with merchants and peddlers, it is for commercially purposes. So "driving" (which is a commercial activity) is a privilege, the personal use of an automobile isn't.

    In this day, when the motor vehicle is such an important part of our modern day living, when the use of the vehicle is so essential to both a livelihood and the enjoyment of life, this Court recognizes that the use of the public highways is a right which all qualified citizens possess, subject, of course, to reasonable regulation under the police power of the sovereign. We consider applicable the following statement by the Rhode Island Court in Berberian v. Lussier, supra:
    "The use of the automobile as a necessary adjunct to the earning of a livelihood in modern life requires us in the interest of realism to conclude that the right to use an automobile on the public highways partakes of the nature of a liberty within the meaning of the constitutional guarantees of which the citizen may not be deprived without due process of law." 139 A.2d at 872. Schecter v. Killingsworth, 380 P.2d 136*(Ariz.*1963)

    Petitioner has also overlooked the fact that in seeking to do a public service business he does not stand before the law in the capacity of a private citizen, as such, seeking a private right of citizenship, but comes as a "public service" entity, seeking to render a service to the public of the state for hire and profit. In such capacity, in order to avail himself of the privilege of conducting such business, he must subject himself to the Constitution and laws governing public service enterprises. Ex Parte Tindall, 229 P. 125*(Okla.*1924)

    Now, the Fourteenth Amendment to the Constitution of the United States contains three distinct guaranties or protective provisions, to wit:
    1st. That no state shall pass any law abridging the privileges and immunities of citizens of the United Sates.
    2nd. No state shall deprive any person of life, liberty, or property without due process of law.
    3rd. No state shall deny any person within its jurisdiction of equal protection under the laws.
    In view of the proposition that It is petitioner's business which, in its character of a "Public service enterprise," is seeking herein to avoid the provisions of the act in question, and not the petitioner himself, in his individual capacity as a private citizen, as such, and in view of the proposition that the nature and character of petitioner's business is within the proper sphere of the "police power" of the state, we cannot sustain the contention that any of the three foregoing provisions of the Fourteenth *Page 198 Amendment are contravened or violated by any of the provisions of the act in question. Ex Parte Tindall, 229 P. 125*(Okla.*1924)
    (End Paste)

    So while the use can be regulated, a regulation isn't a law which can require a license for a constitutional right(as it's declared above).

    The TN laws have only granted the authority to license in the commercial code for commercial use. (Title 67, I think.) In Title 55, they only grant the authority to make rules and regulations concerning the licensing. That only applies to the licensing granted in the commercial code. If they could license the private use, then Title 55 would simply read as granting the authority to license all use of any automobile.

    The above case specificly states the right, and that the privilege is the commercial use.

    Not Title 67...it's Title 65.TN Code 65-15-106 (2019)

    (a) The department of safety is vested with the power and authority, and it is its duty, to license, supervise and regulate every motor carrier in the state and promulgate rules and regulations pertaining thereto.

    Now see Title 55.
    TN Code 55-50-202 (2019)

    (a) The commissioner is authorized to establish administrative rules and regulations concerning the licensing of persons to operate motor vehicles, in this state, for the purpose of ensuring the safety and welfare of the traveling public.

    A rule or regulation is not the authority to license.

    Nowhere in the TCAs is the Dept giving the right to license anything except commercial use. Nor in the TN constitution .

    If ANYONE can show me in TCA code or TN constitution, where it grants the authority to license the non-commercial use of any consumer goods, as an automobile is declared in: 415 S.W.2d 347 (1966)
    Walter MALLICOAT et ux., Plaintiffs in Error, v. VOLUNTEER FINANCE & LOAN CORP., Defendant in Error.[*]
    Court of Appeals of Tennessee, Eastern Section.
    It is not contended the property here involved was perishable or "of a type customarily sold on a recognized market." There is no proof that Mallicoat was in a business requiring the use of an automobile. *350 He testified he bought it to use in going to and from his place of employment. It is clearly not "equipment", "farm products" or "inventory" as defined by T.C.A. 47-9-109. We, therefore, hold that it falls within the category of "consumer goods" as defined by the same Section of the Act.
    (End Paste)
    or the authority to tax the USE of property(except for profit), and not the simple possession thereof, I'll recognize my failure to research.

    I have emailed the Dept of Safety and inquired about the necessity of a license. There reply is : 55-50-301. License required Requirements Exception. Applicability to temporary licenses and permits.

    (a) Every person applying for an original or renewal driver license shall be required to comply with and be issued a classified driver license meeting the following requirements:

    (1) No person, except those expressly exempted in this section, shall drive any motor vehicle upon a highway in this state unless the person has a valid driver license under the provisions of this chapter for the type or class of vehicle being driven; (End Paste)

    By that logic, it is only applicable to a person ( Every person applying for an original or renewal driver license) and not to people which aren't applying. And only for the type or class being driven.

    When I asked, on 2 occasions, about the requirement for a license for the private personal use of an automobile not used in a commercial capacity, they do not reply.

    And lastly TCA 55-4-101 clearly states the the registration and fees are a privilege tax.

    Also consider the following :
    54. PriorConstruction Canon
    If a statute uses words or phrases that have already received authoritative construction by the jurisdiction’s court of last resort, or even uniform
    construction by inferior courts or a responsible administrative agency, they are to be understood according to that construction.
    “In adopting the language used in the earlier act, Congress ‘must be considered to have adopted also the construction given by this Court to
    such language, and made it a part of the enactment.’”
    Shapiro v. United States,
    335 U.S. 1, 16 (1948) (per Vinson, C.J.).1
    The clearest application of the priorconstruction canon occurs with reenactments: If a word or phrase has been authoritatively interpreted by the
    highest court in a jurisdiction, or has been given a uniform interpretation by inferior courts or the responsible agency, a later version of that act perpetuating
    the wording is presumed to carry forward that interpretation.
    But the canon goes beyond this and applies as well (though with less force) to interpretations of thesame wording in related statutes.2
    In England, the priorconstruction canon (actually a broader version of it) is called “the rule in Ex parte Campbell,”3 after an 1870 case in which Lord Justice
    James declared: Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated
    them without any alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning
    which a Court of competent jurisdiction has given to them. (End Paste)

    So be watchful of the use of special word. Watch how they switch from " the use of an automobile" to "drive a motor vehicle".
    Per TCA Motor Vehicle is a vehicle. Vehicle is what stuff can be transported in. Transportation is listed under commerce definition. Commerce is trade,traffic and transportation. So by TCA ALL trade, traffic and transportation is commercial.

    Which makes all motor vehicles commercial.

    Quote Quoting flyingron
    View Post
    Nope, there's no MINIMUM altitude below which the FAA does not have authority. The reason hang gliders and true ultralights do not require licenses is that the FAA has specifically exempted them (14 CFR 103).
    But ask yourself, did the FAA exempt them because they wanted to, or because they had to. It's because they had to because they have no authority over them.
    Why is wheelchair exempt? Because they have no authority. It's all part of liberty which includes the freedom to travel. And the freedom to use property.

    The exemptions doesn't say because we grant them the right. It's because they already have the right.

    Quote Quoting Jim Kozlovich
    View Post
    urL="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1772042"]Oklahoma City University Law Review, Vol. 30, p. 245, 2005[/URL]

    "Driving an automobile is a privilege, not a right, according to the prevailing laws of every jurisdiction of the United States."
    Just checked this link. I download that paper months ago. I disagree with their analysis.

    And that should show, that I've done a lot of research to have downloaded that.

    Tomorrow (Iater today) I'll post some stuff from ECFR. They define motor vehicles, automobiles, and non-passenger automobiles. There's even a place that says an owner of an automobile can remove the VIN # and it's legal.

    I'll also show that the main TN police training university is owned or under control of the Dept of Commerce.

    Like I said, I have done a lot of research.

    I believe this deserves to be reposted.
    By TCA 55-4-101, the registration and fees are a privilege tax.

    By multiple editions of Black's, please see the following I copied form the 8th.

    privilege tax.A tax on the privilege of carrying on a business or occupation for which a license or franchise is required. [Cases: Licenses 1. C.J.S. Architects 8; Licenses 24.]

    So for TCA 55-4-101 to be within legal parameters, IT ONLY APPLIES TO COMMERCIAL VEHICLES.

    TCA 55-4-101 (a) (2) The registration and the fees provided for registration shall constitute a privilege tax upon the operation of motor vehicles.

    Check these 2 cases which says you can't license or tax a private vehicle. City of St. . Louis v. Grone 46 Mo. 574 Supreme Court of Missouri Decided October 01 1870

    Davis v. Petrinovich. 112 Ala. 654 Alabama Supreme Court Decided November 01 1896

    Quote Quoting Taxing Matters
    View Post
    The Tennessee constitution allows the legislature to tax privileges, and the Tennessee Courts have already said driving — all driving, not just commercial driving — is a privilege in the cases I cited earlier. That would seem to settle the matter.
    Phillips v. Tax collectors, which I've quoted before and written 7 years after the TN constitution, says privileges in the TN Con. is defined as business or occupation. The essential element is business or occupation in which a profit is derived from the public.
    Jack Cole Co. V. McFarlane also says business or occupation and that nothing can be taxed as such if it's not.(1961 ruling I believe). I forget the 1979 ruling. The 2009 ruling is Waters v. Farr.

    BTW, I remember a case which says all driving of a motor vehicle (either requires a license or is a privilege- I forget which) and not just interstate. But again, that's using special words, and simple means the intrastate use also requires it. Driver is commercial per canon. And see: motor vehicle- vehicle- transported- commerce = trade,traffic and transportation as stated above

    IT'S BEEN OVER 30 HOURS AND NO REPLY! !
    YOU ALL KNOW I'M RIGHT !!!
    A PRIVILEGE IS COMMERCIAL PER RULINGS AND ONLY COMMERCIAL USE OF A VEHICLE REQUIRES A LICENSE. YOU CAN'T DEFEAT THE FACTS ABOVE.

    Read this case. It defines an operator and a motor vehicle as commercial. https://www.courtlistener.com/opinio...ation-v-huss/?

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