Constitution Club

1.  Is “driving” an activity that is commercial in nature?  Yes _____ No _____

CALIFORNIA COMMERCIAL CODE 
§9109. Classification of Goods: “Consumer goods”;  “Equipment”; “Farm Products”; “Inventory”

 Goods are 

 (1)  “Consumer goods” if they are used or bought for use primarily for personal, family or household purposes; 
 (2) “Equipment” if they are used or bought for the use primarily in business (including farming or a profession) or by a debtor who is a nonprofit organization or a government subdivision or agency or if the goods are not included in the definitions of inventory, farm products, or consumer goods.

California Code Comment 
By John A. Bohn and Charles J. Williams

Prior California Law

 1.  The classification of goods in this section is new statutory law.  The significance of this classification is described in Official Comment 1.

Although goods cannot belong to more than one category at any time, they may change their classification depending upon who holds them and for what reason.  Each classification is mutually exclusive but the four classifications described are intended to include all goods. 
Official Comment 2.


"The term ‘automobile’ is the generic name which has been adopted by popular approval for all forms of self-propelled vehicles for use upon the highways and streets for general freightand passenger service." 
Vol.1-2, Huddy, Cyclopedia of Automobile Law (1932), p. 140.

Title 18, United States Code, Sec. 31 
PART I - CRIMES 
CHAPTER 2 - AIRCRAFT AND MOTOR VEHICLES 
Sec. 31. Definitions

      When used in this chapter the term -

''Motor vehicle'' means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in thetransportation of passengerspassengers and property, or property or cargo;


CALIFORNIA VEHICLE CODE 
SECTION 15210(i)(4)

In the absence of a federal definition, existing definitions under this code shall apply.
"Section 465.4 Classification as Pleasure Cars or Commercial Vehicles
"A classification of motor vehicles, based on whether they are used for business or commercial purposes, or merely kept for pleasure or family use, a license being imposed in one case and not in the other, is a proper one. [27. La.--Gulf States Utilities v. Traigle, 1975, 310 So.2d. 78. Ohio.--Fisher Bros. Co. v. Brown, 146 N.E. 100, 111 Ohio St. 602. Or.--Kellaher v. City of Portland, 110 P. 492, 112 P. 1076, 57 Or. 575. Tenn.--Ogilvie v. Hailey, 210 S.W. 645, 141 Tenn. 392. Vt.--State v. Caplan, 135 A. 705, 100 Vt. 140.] "Thus a county ordinance levying a tax for the privilege of using the county roads, and fixing no license tax on an automobile used by the owner or his family for other than commercial purposes is not unreasonable and arbitrary in the imposition of the tax on vehicles used for commercial purposes. [28 Ala.--Hill v. Moody, 93 So. 422, 207 Ala. 325.]" 
Blashfield, AUTOMOBILE LAW AND PRACTICE 3d Ed (1998): 
Ch. 465 CLASSIFICATION OF MOTOR VEHICLES


2. Is the term “motor vehicle” a term used to describe a device or thing used in 
       commercial activity? Yes _____ No _____

DRIVER. One employed... 
Bouvier’s Law Dictionary, 1856

DRIVER-- one employed in conducting a coach, carriage, wagon, or other vehicle..." 
BOUVIER'S LAW DICTIONARY, (1914)p. 940.

DRIVER. One employed... 
Black’s Law Dictionary, 4th Ed, 1951

Corpus Juris Secundum §151. – Chauffeur or Operator 
distinction is recognized between an operator and a chauffeur under some licensing regulations, “chauffeur” referring to one who is paid for driving an automobile
60 C.J.S.  MOTOR VEHICLES §§ 150 - 151, p. 797 ( also see “Tests”(1) and (2))

The California Appellate Court in 1948 defined what types of licensing is required to operate a "motor vehicle:

"Section 250 . . . "(a) It is a misdemeanor  for any person to drive a motor vehicle upon a  highway unless he then holds a valid operator's or chauffeur's license . . . .."  . . . .driving privileges--of which the  license is but evidence (People v. Noggle (1935), 7 Cal.App.2d 14, 17, [45 P.2d 430, 432]) People v. Higgins (1948) 97 Cal.App.2d Supp. 938, 939, 941; 197 P.2d 417.
The foregoing court citation clearly shows that the “operator’s license” permits engagement in commercial activity.
 Section 1. (b) The word "operator" shall include all persons, firmsassociations and corporations who operate motor vehicles upon any public highway in this state and therebyengage in the transportation of persons or property for hire or compensation, but shall not include any person, firm, association or corporation who solely transports by motor vehicle persons to and from or to and from attendance upon any public school or who solely transports his or its own property, or employees, or both, and who transports no persons or property for hire or compensation...

 Section 2. Each operator of a motor vehicle within this state who transports or desires to transport for compensation or hire persons or property upon or over any public highway within this state shall apply to and secure from the board of equalization of the State of California a license to operate each and all of the motor vehicles which suchoperator desires to operate or which such operator from time to time may operate." 
 Stats. 1925, ch 412, p. 833. Approved by the Governor May 23, 1925.


CARRIERScontracts. There are two kinds of carriers, namely, common  carriers, (q.v.) who have been considered under another head; and private carriers. These latter are persons who, although they do not undertake to transport the goods of such as choose to employ them, yet agree to carry the  goods of some particular person for hire, from one place to another. 
     2. In such case the carrier incurs no responsibility beyond that of any other ordinary bailee for hire, that is to say, the responsibility of  ordinary diligence. 2 Bos. & Pull. 417; 4 Taunt. 787; Selw. N. P. 382 n.; 1  Wend. R. 272; 1 Hayw. R. 14; 2 Dana, R. 430; 6 Taunt. 577; Jones, Bailm. 
121; Story on Bailm, Sec. 495. But in Gordon v. Hutchinson, 1 Watts & Serg. 285, it was holden that a Wagoner Who carries goods for hirecontracts, the responsibility of a common carrier, whether transportation be his principal and direct business, or only an occasional and incidental employment
     3. To bring a person within the description of a common carrier, he must exercise his business as a public employment; he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire, as a business; not as a casual occupation pro hac vice. 1 Salk. 249; 1 Bell's Com. 467; 1 Hayw. R. 14; 1 Wend. 272; 2, Dana, R. 430. See Bouv. Inst. Index, b. t.

3.  Are you a “driver”, “operator, or “carrier”?  Yes _____ No _____

The activity licensed by state DMVs and in connection with which individuals must submit personal information to the DMV- the operation of motor vehicles-is itself integrally related to interstate commerce.

 ...state activities integrally related to commerce, and acted within its sphere of power to afford "security * * * to the rights of the people" by preventing the States from releasing personal information that they require individuals to submit as a condition of engaging in activity-owning and operating a motor vehicle-that is integrally related to commerce generally... 
JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., PETITIONERS v. CHARLIE CONDON, ATTORNEY GENERAL FOR THE STATE OF SOUTH CAROLINA, ET AL., 
In the Supreme Court of the United States, (Jan. 12, 2000) 
No. 98-1464 
[Emphasis added]

4.  When you use your car, are you engaged in the activity the DMV regulates? 
       Yes _____ No _____

Vehicle Code (1935),

"Section 4.: Pending Proceedings and Accrued Rights. No action or proceeding commenced before this code takes effect, and no right accrued, is affected by the provisions of this code, but all procedure thereafter taken therein shall conform to the provisions of this code so far as possible."


CALIFORNIA VEHICLE CODE (1998) 
Pending Proceeding and Accrued Rights

 4.     No action or proceeding commenced before this code takes effect, and no right accrued , is affected by the provisions of this code, but all procedure thereafter taken therein shall conform to the provisions of this code so far as possible.
Constitution of the State of California, 1849

Sec. 1.

All men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty: acquiring, possessing and protecting property: and pursuing and obtaining safety and happiness.
Sec. 10.
 The people shall have the right freely to assemble together,
Sec. 21.
 This enumeration of rights shall not be construed to impair or deny others, retained by the people.


CALIFORNIA VEHICLE CODE

 17451.  The acceptance by a nonresident of the rights and privileges conferred upon him by this code...

 17453.  The acceptance of rights and privileges under this code...


5.  Are the “rights and privileges” offered by the DMV  “accrued” rights? 
        Yes _____ No _____

DEFINITIONS AND SOURCES OF LAW.  22 - 22.2 
CIVIL CODE 
SECTION 22-22.2

22.  Law is a solemn expression of the will of the supreme power of the State.

22.1.  The will of the supreme power is expressed: 
   (a) By the Constitution. 
   (b) By statutes.

22.2.  The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.


6.   Is the VEHICLE  "CODE"  the law?  Yes  _____  No  _____  If, so, why didn't the     Legislature avoid any confusion or question by authorizing CIVIL CODE SECTION 22.1, to read in the following way?:

22.1    The will of the supreme power is expressed:
(a)     By the Constitution. 
(b)    By statutes. 
(c)     By the codes.
Constitution of the State of California, 1849 
Article III:  Distribution of Powers.
The powers of Government of the state of California shall be divided into three separate departments: the Legislative, the Executive, and Judicial; and no person charged with the exercise  of powers properly belonging to one of these departments, shall  exercise any functions appertaining to either of the others,  except in the cases hereinafter expressly directed or permitted.
7.   Do judges have discretion to expand the meaning of ANY code section by adding words the  Legislature elected to leave out?  Yes  _____  No  _____

 "[T]he Legislature, either by amending (section 1382) or otherwise, may not nullify a constitutional provision." 
Rost v. Municipal Court of Southern Judicial Dist., County of San Mateo (1960) 85 A.L.R.2d 974, 979 Headnote 5.

 “A state cannot impose restrictions on the acceptance of a license that will deprive the licensee of  his constitutional rights”. 
Ruckenbrod v. Mullins, 102 Utah 548, 133 P.2d. 325, 144 ALR 839

8.     Does the Legislature have the authority to enact legislation compelling the waiver of constitutionally secured rights in favor of acceptence of inferior government granted taxable and revocable privileges? Yes ____ No _____

“A license is in the general nature of a special privilege, entitling the licensee to do something that he would not be entitled to do without the license”. 
51 Am. Jur.2d., LICENSES AND PERMITS, PART ONE, GENERAL PRINCIPLES,  I. GENERAL, §1. Generally, p. 7.

9.   Are the unalienable rights and immunities secured by the Constitution “special privileges”?  Yes _____ No _____

10.  Predicated on the foregoing authorities, are you engaged in the activity the DMV regulates?  Yes ____ No _____

11.  Does the Legislature possess the authority to compel you to apply for and pay and annual fee for a license when you don't do what the license permits? 
Yes _____ No _____

12.  Does the Legislature possess the authority to compel you to transfer an interest in your private property to any agency of State government? 
Yes _____ No _____

 

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