Notice aids fight to overturn slick ruling on travel-transportation

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Arthur Jay Hirsch waits for the court doors to open before his trial as a constitutional user of the roads in Lawrenceburg, Tenn., Dec. 22, 2015. (Photo David Tulis)

A remarkable chancery court case in Lawrence County, Tenn.,, seeks to overturn a negative court of appeals ruling which denies the distinction between travel and transportation, one that allows the State of Tennessee to maintain a system of harassment against minorities and the poor — and everyone else

By David Tulis / 92.7 NoogaRadio

The petition en rem (against the thing) in Lawrence County is by convicted gun-carrying GMO-free open-range automobile user and traveler, Arthur J. Hirsch, 65, a private businessman and hard-working Christian who insists on the constitutional right of free movement  on the people’s roads in Tennessee.

The case puts into the record Transportation Administrative Notice Tennessee. part of an unprecedented race reconciliation and reparations project in Chattanooga.

The Attorney General’s office has demanded a role in the petition that alleges bad faith and fraud on the court on the part of the state and its Judiciary. Mr. Hirsch is asking chancery judge David Allen to overturn a ruling by the court appeals in state of Tennessee versus Arthur J Hirsch. An amended petition is filed against the ruling itself, not against the state as a party.

But the attorney general’s office is insisting on horning in on the proceedings. Mr. Hirsch says that Lisa Baugh, overseer of the civil rights division, and Joe Ahillen are insisting on being party, and on defending the state against Mr. Hirsch’s claims.

The “void judgement” lawsuit in equity jurisdiction says the record is the party to the suit, not the state. Mr. Hirsch alleges fraud on the court in the original 2015 trial (that I covered in great detail), lack of subject matter jurisdiction and thus lack of standing, and bad faith. “There’s no evidence of the elements of the crime,” Mr. Hirsch says. “That’s the main thing.” The trooper didn’t know any occupation or business in which Mr. Hirsch might have been involved, saying he didn’t know. “They are acting on a presumption I am engaged in commerce, and there’s no evidence to prove it.”

Mr. Hirsch lays out travel-transportation distinction in a judicial notice filed with the chancery court, and the legal analysis is as follows.

Users of roadways fall in 1 of 2 classes

FACT

Re. two classes of users of public highways.

There are two distinct classes of users of public highways, namely, (1) persons “traveling” in their own private conveyance in the ordinary course of life and business, exercising their naturally inherent, free, unregulated liberty right, protected by the constitution, and (2) persons engaged in activities for profit affecting the public interest, and “driving” self-propelled instrumentalities of commerce comprehensively defined as “motor vehicles,” by regulable, taxable, permissive state granted privilege to transport people or goods in commerce on public highways.

SUPPORT

➤  “….. [T]o 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. State v. Ferrell, No.M2007-01306-CCA-R3-CD (Tenn.Crim.App. 08/07/2009).

➤  “We are of opinion that there is no ambiguity about the ordinary meaning of the expression ‘public highway.’ We think there can be no doubt that the common understanding of a public highway is such a passageway as any and all members of the public have an absolute right to use as distinguished from a permissive privilege of using same.” Standard Life Ins. Co. v. Hughes, 203 Tenn. 636, 315 S.W.2d 239, 1958 Tenn. LEXIS 229 (1958).

➤  “A citizen may have, under the Fourteenth Amendment, the right to travel and transport his property upon them by auto vehicle. But he has no right to make the highways his place of business by using them as a common carrier for hire. Such use is a privilege which may be granted or withheld by the state in its discretion, without violating either the due process clause or the equal protection clause.” Packard v. Banton, 264 U.S. 140, 144

➤  “Public highways. . . are open as a matter of right to the use of the public for the purposes of vehicular travel.” Buck v. Kuykendall, 267 U.S. 307, 314 (1925)

➤  The right to travel is an “unconditional personal right,” a right whose exercise may not be conditioned. Shapiro v. Thompson, 394 U.S. 618, 643; Dunn V. Blumstein, 405 U.S. 330, 342 (1972) No. 70-13; State v. Stroud, 52 S.W. 697, 698 (Tenn. 1899); (Also see 3 Kent, Comm. 432).

➤  “The business of using the public highways for profit, earned by transporting persons and property for hire, has been definitely excluded from the category of private or personal rights . . . . . .that the primary use of the state highways is the use for private purposes.” State v. Harris, 76 S.W.2d 324, 168 Tenn. 159 (1934)

➤  “Every member of the public has the right to use the public roads in a reasonable manner for the promotion of his health and happiness. . .” “A public road is a way open to all the people, without distinction, for passage and repassage at their pleasure.” Sumner County v. Interurban Transp. Co., 141 Tenn. 493, 213 S.W. 412, 1918 Tenn. LEXIS 112, 5 A.L.R. 765 (1919).

➤  “The right of the Citizen to travel upon the highway and to transport his property thereon in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain in the running of a stagecoach or omnibus. The former is the usual and ordinary right of the Citizen, a right common to all, while the latter is special, unusual, and extraordinary.” Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781. (Also see Hoover Motor Express Co. v. Fort, 167 Tenn. 628 *; 72 S.W.2d 1052 **; 1933 Tenn. LEXIS 71; Thompson v. Smith, 155 Va. 367, 377 (1930))

➤  “It is well established law that the highways of the state are public property; that their primary and preferred use is for private purposes, and that their use for purposes of gain is special and extraordinary, which, generally at least, the legislature may prohibit or condition as it sees fit.” Stephenson v. Binford, 287 U.S. 251, 264; Packard v.Banton, 264

U.S. 140, 144, and cases cited;Frost Trucking Co. v.Railroad Comm. U.S. 583, 592-593; Hodge Co. v. Cincinnati, 284 U.S. 335, 337; Johnson Transfer & Freight Lines v. Perry, 47 F. (2d) 900, 902; Southern Motorways v. Perry, 39 F. (2d) 145, 147; People’s Transit Co. v. Henshaw, 20 F. (2d) 87, 89; Weksler v.Collins, 317 Ill. 132, 138-139; 147 N.E. 797; Maine Motor Coaches v. Public Utilities, 125 Me. 63, 65 130 Atl. 866.

➤  “It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution. . . ‘Constitutional rights would be of little value if they could be . . . ‘indirectly denied’. . . .” Harman v. Forssenius, 380 U.S. 528, 540 (1965).

➤  “In any event,freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” „[T]he right to travel freely. . . it is a virtually unconditional unconditional personal right, guaranteed by the Constitution to us all.‰ United States v. Guest, 383 U. S. 745, 757-758 (1966)

➤  “The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment.” “Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood.” Kent v. Dulles, 357 U.S. 116, 125, 126 (1958) 481, 125

 “The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day; and under the existing modes of travel includes the right to drive a horse-drawn carriage or wagon thereon, or to operate an automobile thereon, for the usual and ordinary purposes of life and business.” Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 583, 71 A.L.R. 604, 610.

 “Personal liberty largely consists of the Right of locomotion — to go where and when one pleases — only so far restrained as the Rights of others may make it necessary for the welfare of all other citizens. The Right of the 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 the common Right which he has under his Right to life, liberty, and the pursuit of happiness. Under this Constitutional guarantee 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.” II Am.Jur. (1st) Constitutional Law, Sect. 329, p.1135

➤  “[P]leasures are not taxable as vocations and that business use of roads impose more wear on the people’s asset than their use for pleasure. Roadway use “for business purposes generally inflicts greater injury and detriment than their use for a pleasure; and a discrimination by taxing their use for pleasure, and leaving them untaxed for business purposes, is without reason or just cause, and is vicious.” Shannon’s compilation of the Tennessee Statutes, vol. 1, 1917.

➤  “The state legislature may properly enact reasonable regulations requiring licensing and registration of motor vehicles as it furthers the interests of public safety and welfare pursuant to its police power. 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, 2009 Tenn. Crim. App. LEXIS 629.

FACT

Re. the essential fact elements of “privilege.”

The essential fact elements of the term “privilege” are occupation and business for profit affecting the public interest (and not the ownership simply of property, or its possession or keeping it), and must be shown by evidence on the face of the record.

SUPPORT

➤  Griffin et al. v. Illinois, 76 S. Ct. 585, 351 U.S. 12 (U.S. 04/23/1956) No. 95. “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 privilege tax cannot be imposed upon anything or any act, unless it constitutes a business, occupation, pursuit or vocation. Such use for pleasure does not constitute a business, occupation, pursuit or vocation. Pleasure taking does not constitute a business, occupation, pursuit or vocation, in the sense of the definition of a taxable privilege; and therefore is not subject to privilege taxation.” Shannon’s Compilation of Tennessee Statutes, Vol. 1, 1917.

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

➤ “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

➤  “[T]he business of all such common carriers is declared to be a privilege.” Tenn. Code Ann. 65-19-101. Common carrier — Business declared a privilege. Tenn. Code Ann. § 67-4-1701. Privilege tax established — Collection.

➤  “[T]he business of operating as a motor carrier of property for hire along the highways of the state is one affected with the public interest. It further declares that the rapid increase of motor carrier traffic and the lack of effective regulation have increased the dangers and hazards on public highways and made more stringent regulations imperative to the end that

the highways may be rendered safer for public use, the wear and tear upon them reduced, discrimination in rates eliminated, congestion of traffic minimized, the use of the highways for transportation of property for hire restricted to the extent required by the necessities of the general public, and the various transportation agencies of the state adjusted and correlated ‘so that public highways may serve the best interest of the general public.’” Stephenson v. Binford, 287 U.S. 251 (1932).

FACT

“Motor vehicle” is special term of art and is comprehensively defined as an “instrumentality of commerce,” and is registered and taxed as a “privilege” according to its use.

SUPPORT

! “. . . commerce, in the constitutional sense,. . . embraces shipment. . . and. . . to carriers engaged in interstate commerce, certainly insofar as so engaged, and the instrumentalities by which such commerce is carried on – . . . which has been apparent ever since the decision in Gibbons v. Ogden, 9 Wheat. 1, and which has not since been open to question.. . It may not be doubted that the equipment [e.g. “motor vehicle”]. . . engaged, in. . . commerce,. . . are instruments of such commerce. From this it necessarily follows that such. . . are embraced within the governmental power of regulation. . . ” Interstate Commerce Commission v. Illinois Central Railroad Company, 215 U.S. 452 (U.S. 01/10/1910) No. 233

FACT

The Tennessee Code Annotated, Titles 55 and 65, and U.S.C.A. Title 49 are commercial in nature and deal with interstate and intrastate transportation regulations concerning motor vehicles/carriers.1

SUPPORT

See attached Transportation Administration Notice

1 Note: The right to travel in an automobile is not implicated and not enumerated as a “privilege of driving a motor vehicle” and has been excluded from the definition of self-propelled property used as instrumentalities of commerce requiring registration and payment of privilege taxation for state revenue.

For more on right to travel and administrative notice

 

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