Is Driving a Privilege or a Right

[Edward333]

My question involves a traffic ticket from the state of: Tennessee
I have been studying this for about a year, and I have plenty of Supreme Court rulings that says it a right. But I also believe I can prove it without getting into the right to travel issue. Can you please check my deduction based on the following information and let me know your opinion?

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.

Jack Cole Co.v.MacFarland

Supreme Court of Tennessee, at Nashville, December Term, 1959Jun 6, 1960

337 S.W.2d 453 (Tenn. 1960)

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.
"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


AND


Tennessee Supreme Court

JOHN W. PHILLIPS v. W. G. LEWIS, TAX COLLECTOR, ETC.

3 Tenn. Cas. 230
Jan. 1, 1877

5. SAME. Ownership of property cannot be taxed as a privilege, but the business in which it is used may be taxed as a privilege.
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. (P. 245.)

9. PRIVILEGES. Definition of the term “privilege” as used in the state constitution.

The settled judicial construction, interpretation, and definition of the term “privilege” a,t the time of the adoption of our constitution in 1870, in which sense the term was used in that instrument, was, “the exercise of an occupation or business, which requires a license from some proper authority, designated by a general law, and not open to all, or any one, without such license.” The essential element of the definition 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. (Pp. 242, 243.)

Cited wdth approval: Mabry v. Tarver, 1 Hum., 94; Cate v. State, 3 Sneed, 121; State v. Schlier, 3 Heis., 283; French v. Baker, 4 Sneed, 193 [see Robertson v. Heneger, 5 Sneed, 258; Columbia v. Guest, 3 Head, 414; Jenkins v. Ewin, 8 Heis., *2334?&; Clarke v. Montague, 3 Lea, 277; Dun v. Cullen, 13 Lea, 204; Railroad v. Harris, 15 Pickle, 702].

Cited and construed: Code (1858 and T. & S.), sec. 550; M. & Y. Code, sees. 604, 617; Shannon's Code, secs. 692, 712.
10. SAME. Same. Legislature cannot declare anything else not included in the definition a privilege and tax it as such, and destroy ad valorem and uniformity of taxation.


With that single TCA and the two TN Supreme Court rulings it proves that in order for the statue to be valid, then only the vehicles in use for profit on the highways are allowed to be taxed as a privilege. Personal non-commercial use of an automobile can't be required to be tagged or registered under a privilege tax.

I'll probably ask additional questions about some due process issues and the what class misdemeanor a driving on suspension can be charged as if the last charge was over 10 years ago.

But for now, just the main question concerning the TCA and 2 TN Supreme Court rulings. Ty in advance.

[Taxing Matters]

My question involves a traffic ticket from the state of: Tennessee
I have been studying this for about a year, and I have plenty of Supreme Court rulings that says it a right. But I also believe I can prove it without getting into the right to travel issue. Can you please check my deduction based on the following information and let me know your opinion?

Driving is clearly a privilege and not a right. You have made the classic mistake here that so many others have when trying to make the argument that driving is a right and that therefore the state may not require a license to drive in the state or require titling and registration of vehicles: you are looking at cases that do not directly address the issue of whether driving is a privilege or a right and instead relying on cases that discuss privilege in other contexts or only in a general way and ignoring the cases that do actually specifically address whether driving is privilege. I suspect that is the case because you simply copied the arguments from some web site on the issue rather than undertaking your own research into the matter as that is what most people I have seen make this line argument do. In any event, I'll give you the key cases in Tennessee that directly address the issue of whether driving is a privilege and whether driver's license law and vehicle registration laws violate your right to travel, which may help avoid a whole second round of discussion on the right to travel issue.

As it turns out, the Tennessee Supreme Court made about as clear a statement on the matter as you can hope to find regarding whether driving is a right or privilege:

The driving of an automobile is a privilege, not a property right, and is subject to reasonable regulation under the police power in the interest of the public safety and welfare.

Sullins v. Butler, 175 Tenn. 468, 135 S.W.2d 930, 932 (1940). The Court goes on to cite with approval the explanation of the issue provided in 5 Am. Jur. 593 at the time:

§ 157. “The statutes regulating the granting of operators' licenses or drivers' permits usually provide for their revocation. It is competent for the legislature to prescribe the conditions under which the privilege of operating an automobile on the public highways may be exercised. The fact that the license or permit was granted under a statute or ordinance which stated that it should be perpetual unless revoked as provided in such statute or ordinance, and which contained no provision for revocation, does not preclude revocation under a provision introduced by subsequent amendment.

“A license to operate an automobile is not property, but a mere privilege, the suspension of which does not deprive the licensee of his property without due process of law. The licenses or permits may not be revoked arbitrarily.

“The authority to revoke cannot be delegated to an official without prescribing what shall constitute grounds for revocation.”

§ 158. “The power of the state to deprive a person of a license to operate a motor vehicle until he has satisfied a prior judgment against him in an action for damages resulting from the operation of a motor vehicle is generally sustained.”

Id. That case has never been overturned or superceded and remains good law in the state today. Indeed, a much more recent Tennessee appellate court case relied in part on Sullins decision to affirm that driving is a privilege and also addressed the issue whether the right to travel argument as well in affirming that the state may require a person to have a driver's license and to require registration of vehicles:

In the present case, the appellant asserts that the State of Tennessee has unduly infringed upon his “right to travel” by requiring licensing and registration of his motor vehicles prior to operation on the public roadways of this state. However, contrary to his assertions, at no time did the State of Tennessee place constraints upon the appellant's exercise of this right. His right to travel within this state or to points beyond its boundaries remains unimpeded. Thus, not only has the appellant's right to freedom of travel not been infringed, but also, we cannot conclude that this right is even implicated in this case. Rather, based upon the context of his argument, the appellant asserts an infringement upon his right to operate a motor vehicle on the public highways of this state. This notion 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.

State and local governments possess an inherent power, i.e. police power, to enact reasonable legislation for the health, safety, welfare, morals, or convenience of the public. See Nashville, C & St. L. Ry. v. Walters, 294 U.S. 405, 55 S.Ct. 486, 79 L.Ed. 949 (1935); Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345, 348 (Tenn.1968), appeal dismissed, 393 U.S. 318, 89 S.Ct. 554, 21 L.Ed.2d 513 (1969); State v. Sowder, 826 S.W.2d 924, 927 (Tenn.Crim.App.1991), appeal dismissed, (Tenn.1992), cert. denied, 510 U.S. 883, 114 S.Ct. 229, 126 L.Ed.2d 184 (1993). Thus, our legislature, through its police power, may prescribe conditions under which the “privilege” of operating automobiles on public highways may be exercised. Sullins, 135 S.W.2d at 932. See also Goats, 364 S.W.2d at 891.

State v. Booher, 978 S.W.2d 953, 955–56 (Tenn. Crim. App. 1997). Again, this case remains good law in the state today. And note that it cites not only the Sullins case in reaching its decision but the U.S. Supreme Court as well.

Also addressing the right to travel argument is another Tennessee appellate decision:

The defendant argues that Code section 55–50–301 is unconstitutional because the statute's requirement that he obtain a license to drive has a chilling effect on his federal constitutional right to travel freely in the United States. This court has previously considered and rejected this same argument. See Booher, 978 S.W.2d at 955; see also, e.g., State v. Paul Williams, a/k/a Paul Williams El, No. W2014–00231–CCA–R3–CD, slip op. at 4 (Tenn. Crim. App., Jackson, Apr. 7, 2015).

In Booher, Booher, who had been convicted of violating the registration law and driving without a license, argued in the trial court “that he was only exercising his right as an ‘unenfranchised citizen of Tennessee’ to use his private property on the public highway over which every citizen has a right to pass” and that, “because he was not engaged in commerce, his vehicle was not required to be registered.”1 Id. at 955. Booher argued that those statutes requiring him to register his vehicle and obtain a driver's license before operating a motor vehicle on the public roads of this state impeded his constitutional right to freely travel throughout the state. We explained, however, that although every American enjoys “a fundamental right to freedom of travel,” “[t]ravel, in the constitutional sense ... means more than locomotion; it means migration with the intent to settle and abide.” Id. (citations omitted). Observing that the freedom “to operate a motor vehicle on the public highways of this state” was a notion “wholly separate from the right to travel,” see id., we reiterated that “[t]he ability to drive a motor vehicle on a public highway is not a fundamental ‘right’ ” but is instead “a revocable ‘privilege’ that is granted upon compliance with statutory licensing procedures,” see id. at 956 (citations omitted). We concluded that “our legislature, through its police power, may prescribe conditions under which the ‘privilege’ of operating automobiles on public highways may be exercised” and that “[r]equiring persons to obtain a driver's license and to register their automobiles with the State” was a reasonable exercise of that power. Id.

We see no reason to depart from the reasoning in Booher and conclude that Code section 55–50–301 is not unconstitutional.

State v. Schmitz, No. M201402377CCAR3CD, 2015 WL 12978196, at *2 (Tenn. Crim. App. Aug. 13, 2015).

I could cite cases in other jurisdictions, too, that directly address the issue of whether driving is a privilege and whether a driver's license requirement or requirement for registration of vehicles violates your right to travel and they'd all reach the same conclusion: driving is a privilege that the state may regulate by, among other things, requiring a license and requiring titling and registration of vehicles and that such laws not not violate your constitutional right to travel. In the face of Tennessee cases that directly discuss driving your cited cases that do not involve driving do not help you. Moreover, the cases you cited tend to be older, in some instances much older, than the cases I presented and to the extent they conflict the more recent cases I cited would be controlling over the older ones.

[flyingron]

Your problem is that privilege vs. right doesn't have anything to do with your conviction and even if it did, you've waited too long to obtain relief'.

These cases don't have anything to do with defining rights. They just define whether something falls under the definition of a privilege for the purpose of the taxation authority in the Tennessee Constitution.
The cases say nothing to question the validity of requiring people or vehicles to be licensed. While I was researching this, TM posted a better answer, so I'll defer to that explanation.

[Taxing Matters]

Your problem is that privilege vs. right doesn't have anything to do with your conviction and even if it did, you've waited too long to obtain relief'.

Reread what he wrote: "I'll probably ask additional questions about some due process issues and the what class misdemeanor a driving on suspension can be charged as if the last charge was over 10 years ago."

He did not say he was looking to challenge that 10 year old conviction. He said might ask what class of crime driving on a suspended license can be charged today if a previous conviction on the same charge occurred over 10 years ago. The answer to that is provided by Tennessee Code (TC) § 55-50-504(a). Paragraph (1) of that subsection tells you that the offense of driving on a suspended license is generally a class B misdemeanor offense. But paragraph (2) of that sections says if the defendant is commits a second offense within 10 years of the first conviction then it is a class A misdemeanor. So if the first conviction was over 10 years ago when the second violation occurred, it would be treated as a first offense and thus a class B misdemeanor, however the statute goes on to say: "provided, however, that the department shall abide by all federal rules and regulations relative to the issuance, suspension, and revocation of driver licenses and qualification of drivers." Which means that the old conviction might still prevent him from getting a new driver's license.

[Edward333]

I appreciate your reply, but there's a couple of problems with it. If you check the original definition of driver you'll see that a driver is someone paid to transport. The use in the code simply doesn't add that part. Also, motor vehicle is defined as commercial in EFCR federal code and in TN motor vehicle is defined to include any vehicle. Vehicle is defined as ..in which...may be transported or drawn. Then another TCA defines Commerce as Trade, traffic, or transportation. Ie..all transportation and traffic is commercial. Then see TN definition of (2) “Licensing authority” means any state regulatory board, commission, council, or committee in the executive branch of state government established by statute or rule that issues any license, certificate, registration, certification, permit, or other similar document for the purpose of entry into, or regulation of, any occupational or professional group.

Now by using my previous TCA and Rulings cited...even if driving is a privilege, and your ruling that the privilege of driving requires a licence, a privilege is the commercial use, not private use. BTW, all copying and pasting on my part is from my own research, saved as pdfs, saved from legal sites like justia and casetext. In various other rulings, like Schecter V. Killingsworth and Barbour V. Walker and many more the use of an automobile for private use is a right.

Reread what he wrote: "I'll probably ask additional questions about some due process issues and the what class misdemeanor a driving on suspension can be charged as if the last charge was over 10 years ago."

He did not say he was looking to challenge that 10 year old conviction. He said might ask what class of crime driving on a suspended license can be charged today if a previous conviction on the same charge occurred over 10 years ago. The answer to that is provided by Tennessee Code (TC) § 55-50-504(a). Paragraph (1) of that subsection tells you that the offense of driving on a suspended license is generally a class B misdemeanor offense. But paragraph (2) of that sections says if the defendant is commits a second offense within 10 years of the first conviction then it is a class A misdemeanor. So if the first conviction was over 10 years ago when the second violation occurred, it would be treated as a first offense and thus a class B misdemeanor, however the statute goes on to say: "provided, however, that the department shall abide by all federal rules and regulations relative to the issuance, suspension, and revocation of driver licenses and qualification of drivers." Which means that the old conviction might still prevent him from getting a new driver's license.

I'm new here and hope I'm doing this right. That's the way I read that code also..but I believe it's a class c again after 10 years have elapsed. My license was suspended about 20 years ago for non-payment of fines and court cost. TN has recently ruled that a license can't be suspended for that.

If you would also see Title 65 or is it 67 for commercial vehicles the code gives the Dept authority to license commercial vehicles, but in Title 55, the code only gives authority to make rules and regulation concerning the licensing of vehicles. Which are not law, and only applicable to the licensing power under commercial section.

[adjusterjack]

My license was suspended about 20 years ago for non-payment of fines and court cost. TN has recently ruled that a license can't be suspended for that.

That ruling was 2 years ago.

Why haven't you got your license back?

[Edward333]

Different reasons, one being my belief that we don't need one except for commercial use. You can see Am. Jur. Constitutional Law 329 p 1135. Need for insurance is another. Only people required to have a license is required to have insurance.

Another point, you stated : "provided, however, that the department shall abide by all federal rules and regulations relative to the issuance, suspension, and revocation of driver licenses and qualification of drivers."

The federal government only has authority over commercial vehicles. They can't make the state comply unless it refers to commercial use.

[adjusterjack]

Different reasons, one being my belief that we don't need one except for commercial use. You can see Am. Jur. Constitutional Law 329 p 1135.

You are clinging to an irrational belief that had been debunked repeatedly.

Need for insurance is another. Only people required to have a license is required to have insurance.

Now the truth comes out. You CAN get your license back. You just don't want to buy insurance. Is that another belief? That it's illegal for the state to require you to have insurance?

[budwad]

So you are one of the sovereign citizen nut cases. Believe what you want and knock yourself out trying to convince anyone other another sovereign citizen nut that your right to travel is being infringed upon because you don't have or need a license or to insure your vehicle.

Those two appenditures attached to your pelvis can be used to travel anywhere you like without a license. You can take a bus, hire a driver, ride a horse, ride a bike. None of witch require a license.

[llworking]

I am going to rephrase some information in more basic language.

Yes, you have a right to travel. There are many different means to travel. One may walk, ride a bike, ride a horse, drive a wagon, take a taxi (or uber or lyft), take a bus, take a train, take a plane or drive a car. Unless the government was attempting to prohibit you from ALL of the possible options for travel, they are not restricting your right to travel. They are only prohibiting you from using one mode of travel. All of the other modes are still available to you.