Transportation – Driving – Travel
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Analysis on laws involving driver licensing, transportation, and a right to travel freely.
by Walter Kenaston
“The Florida State Railroad and Public Utilities Commission does not have power to fix intrastate rates to be charged by common carriers for the transportation of property owned by the United States government and for the transportation of household effects of military personnel between points within the state, and the application of Florida state statutes as to rates of carriage of such goods is precluded by the supremacy clause of the federal Constitution.” UNITED STATES of America v. CARTER, hn. 3, 121 So.2d 433 (June 17, 1960, S. C. Fla.)
Why is this important? It is because I believe the driver license issued these days are all federal. It is a fact that regulation of intrastate carriage in Florida was repealed by sunset in the early 1980’s.
“Sunset Act, insofar as it repealed regulation of intrastate motor carriers and the trucking industry, did not unconstitutionally deny carriers access to state courts.” Alterman Transport Lines, Inc. v. State, 405 So.2d 456 (1981)
So regulation of carriage must be interstate in nature, and thus under federal auspices, and also the DL’s that are issued are federal in nature, even if done in compliance with state law.
This can be seen by looking at the Learners’ Permits issued to those 15 to 16 years of age. The statutory provision for same at FS 322.1615 was not enacted until c. 96-414, § 5, Laws of Florida, 1996, effective July 1, 1996. I had my learner’s permit at age 15 many years ago. While I need to investigate further, there appears to have been no Florida law providing for a “Learners’ Permit,” but the District of Columbia had one starting back in 1925.
And it is not by State law but by federal law that the age at which one can obtain a “regular” driver’s license is reduced from age 21 to age 18.
The Adult Rights Law, Laws 1973, c. 73-21, § 743.07, reduces the age limit from 21 years to 18 years for drivers of common-carrier motor vehicles described in § 323.17. Op.Atty.Gen., 073-207
This, as it says, applies to common-carrier drivers, not those working in private carriage, as in chauffeurs.
It was 1963 Laws, Ch. 67-377, an Act to permit transportation of newspapers and suppliments, exempting such from provisions of F.S. 323.03(1)(e), 323.08(1) and (2), and 323.19, that brought those who might be using mere standard automobiles and small trucks who were common carriers under regulation. This has never been repealed, despite the fact that the other sections in the chapter where this was codified were repealed, and that this chapter now stands repealed via “sunset.” The original law was not. I believe that the only authority to make the common folk get a driver license for their
own automobiles lies in that unrepealed law, again, regulating common carriers.
I believe that the “Class E” DL is an inferior DL granted under federal auspices to federal “children” who have a lower grade of test to pass to get the Class E. I also think it is merely a DL given to those who have attained 16 years having had their Leaners’ Permit, making it a learner-type permit for adults (under federal law).
I believe the Carter case is all the excuse “they” need to say we are all federal “children” engaged in interstate common carriage who are going about federally contracted hauling/carriage for a “price” negotiated federally – free. (Slaves work for free, ehh?)
The Carter case is, I believe, the fourth important case in cracking the DL “nut” and I mention it along with the other three I believe important at the “Certificate of public convenience and necessity” heading/section of my traffic compilation.
FAC 15A-7.016 Persons Exempt From Requirements of Commercial Driver’s License Program; Noncommercial Driver’s
(1) The following persons are exempt from the requirement to obtain a commercial driver’s license:
* * *
(e) Drivers of straight trucks that are exclusively transporting their own tangible personal property which is not for sale.
* * *
(4) A person operating an authorized emergency commercial motor vehicle is required to have a valid class D driver’s license which contains the endorsement “E = Emergency Commercial Motor Vehicle. The “E endorsement is to be issued without additional charge.
Specific Authority 322.02(3) FS. Law Implemented 322.01(18), 322.53(2), (4) FS. History”œNew 4-7-91.
15A-7.016 Persons Exempt From Requirements of Commercial Driver’s License Program; Noncommercial Driver’s License Endorsement.
(1) The following persons are exempt from the requirement to obtain a commercial driver’s license:
(a) Legitimate farm to market operations by farmers and to those operators of a farm vehicle which is:
1. Controlled and operated by a farmer;
2. Used to transport either agricultural, horticultural or forestry products, farm machinery, farm supplies or both to or from farm or harvest place to the first place of processing or storage or from farm or harvest place directly to market;
3. Not used in the operations of a common or contract motor carrier; and
4. Used within 150 miles of the person’s farm.
(b) Military personnel driving military vehicles. This exemption applies to any active duty military personnel, and members of the reserves and national guard on active duty including personnel on full time national guard duty, personnel on part-time training and national guard military technicians (civilians who are required to wear military uniforms and are subject to the code of military justice);
(c) Drivers of authorized emergency vehicles as defined in s. 322.01(4), F.S. This exemption applies to drivers who operate emergency or fire equipment which is necessary for the preservation of life or property or the execution of emergency governmental functions performed under emergency conditions and are not subject to normal traffic regulations. These vehicles are equipped with audible and visual signals and are operated by a person in the employ of a volunteer or paid fire organization. Emergency equipment such as a fire truck, hook and ladder truck, foam or water transporter or other vehicles used only in response to emergencies are included;
(d) Drivers of recreational vehicles, as defined in s. 320.01, F.S. This exemption applies to drivers of recreational vehicles operated solely as a family/personal conveyance for recreational purposes;
(e) Drivers of straight trucks that are exclusively transporting their own tangible personal property which is not for sale.
(2) “Operated by a farmer in (1) above can include employees or family members of the farmer, as long as the vehicle is controlled by the farmer and conditions 2. through 4. are met, but not employees whose primary purpose of employment is the operation of motor vehicles.
(3) A person operating a farm commercial motor vehicle is required to have a valid class D driver’s license which contains the endorsement “F = Farm Commercial Motor Vehicle. The “F endorsement is to be issued without additional charge.
(4) A person operating an authorized emergency commercial motor vehicle is required to have a valid class D driver’s license which contains the endorsement “E = Emergency Commercial Motor Vehicle. The “E endorsement is to be issued without additional charge.
Specific Authority 322.02(3) FS. Law Implemented 322.01(18), 322.53(2), (4) FS. History”œNew 4-7-91.
Compiled, with comments, by Walter Kenaston;
Made possible only with the help of IAUE Aleim (the Lord God).
This information is provided for educational purposes that the people of Florida
might understand how they have been deceived and that they may learn how to
start to reclaim their God given rights.
Permission is granted to reproduce and distribute as is, without changes, and
only without charge except for the reasonable costs of reproduction.
Though much of this information focuses on Florida, most information and case cites are applicable in every state.
I have tried to give direct quotes where applicable; such quotes are “quoted” with the case cite following (in parentheses), with the source where I found the information/quote/cite following [in brackets]. Since most of the information has been the result of my research, I can vouch for the accuracy of the most material – with possibly some typographical errors; but some material has been taken from internet sources which I cannot vouch for – these I have preceeded with an asterisk (“*”). This compilation is also not properly organized nor complete: I make notes using two asterisks (“**”) to mark areas that need further research/attention.
Notes on Word Definitions
Notes on Laws & Amending –
The Right to Travel on Public Highways
– Superiority of use for travel
– New Uses or Methods of Use
Constitutional Right to Travel
What is “Regulation”?
Nature of Public Highways
Privilege of Using Highways for Business
Certificate of public convenience and necessity
Federal Regulation of “Driving”
Requirement for Driver’s License
Nature & Scope of Florida’s Traffic Laws
The MSO/MCO and the Security Interest
Registration of vehicles
Power of Courts
Service of Process
Power of Police Officers
Applicant – Webster’s New Universal Unabridged Dictionary (1983)
one who applies or makes application, as for employment, help, etc.; a petitioner; as, an applicant for charity
Applicant – Webster’s Unified Dictionary and Encyclopedia, International Illustrated Edition (1960)
One who applies.
Applicant – not defined in Bouvier’s (1856)
Applicant – Black’s 3rd
An applicant, as of letters of administration, is one who is entitled thereto, and who files a petition asking that letters be granted. Jerauld v. Chambers, 44 Cal. App. 771, 187 P. 33
Applicant – Black’s 6th
An applicant, as of letters of administration, is one who is entitled thereto, and who files a petition asking that letters be granted. For purposes of letters of credit, the customer in the credit transaction. Synonymous also with “account party.”
Automobile – Webster’s Unified Dictionary and Encyclopedia, International Illustrated Edition (1960)
A vehicle moved by power produced within it, and not limited to operation on rails; a motor car.
Automobile, a vehicle propelled by an engine within itself or by any other means of power in itself. It was formerly called horseless carriage. ***
Automobile – Black’s 3rd
A vehicle for the transportation of persons or property on the highways; carrying its own motive power and not operated upon fixed tracks. Blashfield’s Cyclopedia of Automobile Law, vol. 1, c. 1, sec. 1.
A wheeled vehicle propelled by gasoline, steam, or electricity. Stanlet v. Tomlin, 143 Va. 187, 129 S.E. 205, 208. A self-propelled vehicle suitable for use on a street or roadway. State v. Freels, 136 Tenn. 483, 160 S.W. 454; American-La France Fire Engine Co. v. Riordan (D.C.) 294 F. 567, 571. A vehicle designed mainly for the transportation of persons, equipped with an internal combustion, hydrocarbon vapor engine furnishing the motive power and forming a structural portion thereof. American-La France Fire Engine Co. v. Riordan (C.C.A.) 6 F.(2d) 964, 967.
Etymologically, the term might include any self-propelled vehicle, as an electric street car, or a motor-boat, but in popular and legal usage it is confined to a vehicle for the transportation or persons or property on terrestrial highways, carrying its own motive power and not operated upon fixed tracks. Bethlehem Motors Corporation v. Flynt, 178 N.C. 399, 100 S.E. 693, 694.
The term “automobile” is often defined to be synonymous with “motor vehicle.” State v. Ferry Line Auto Bus Co., 99 Wash. 64, 168 P. 893, 894.
Chauffeur – Compiled General Laws of Florida, s. 1280 (1927)
“Chauffeur” shall include any person operating any motor vehicle as an employee of the owner thereof: Provided, the term “chauffeur” shall not apply to a person using a motor driven vehicle as an incident to their employment in some other capacity.
Chauffeur – Laws of Florida, c. 20451, s. 13 (g) (1941)
Every person who is employed for the principle purpose of operating a motor vehicle, and every person who drives a motor vehicle when in use as a public or common carrier of persons or property.
Chauffeur – F.S. 322.01(7) (1951)
Every person who is employed for the principle purpose of operating a motor vehicle, and every person who drives a motor vehicle when in use as a public or common carrier of persons or property.
Chauffeur – F.S. 322.01(7) (1961)
Any person who operates a motor truck or truck tractor with a gross weight in excess of eight thousand pounds or width in excess of eighty inches, except the registered owner of any motor truck or truck tractor shall be exempted when transporting his own products. Any person who operates any motor vehicle transporting passengers for hire, or operates a bus transporting school children shall be required to hold a chauffeur’s license.
Chauffeur – Dictionary of Occupational Titles, 1965, Volume 1, Definition of Titles
(dom. ser.) 359.873. driver. Drives private car as ordered by owner or other passenger and performs other miscellaneous duties: Assists passengers to enter and leave car and holds umbrellas in wet weather. Keeps car clean, polished, and in operating condition, making minor repairs, such as fixing punctures, cleaning spark plugs, or adjusting carburetor. Frequently assists MAN-OF-ALL-WORK with heavy work. May groom and excerise pets.
Commerce – 49 U.S.C. 5102(1)
“commerce” means trade or transportation in the jurisdiction of the United States –
(A) between a place in a State and a place outside of the State; or
(B) that affects trade or transportation between a place in a State and a place outside of the State.
Driver – Webster’s New Universal Unabridged Dictionary (1983)
1. one who or that which drives. 2. One who drives an automobile, horse, locomotive, etc. * * *
Driver – Webster’s Unified Dictionary and Encyclopedia, International Illustrated Edition (1960)
One that drives; a chauffeur, coachman or the like; a mechanism for imparting motion to other pieces of a machine; mallet or heavy hammer; in golf, a wooden club used in driving from the tee.
Driver – Bouvier’s (1856)
One employed in conducting a coach, carriage, wagon, or other vehicle, with horses, mules, or other animals.
2. Frequent accidents occur in consequence of the neglect or want of skill of drivers of public stage coaches, for which the employers are responsible.
3. The law requires that a driver should possess reasonable skill and be of good habits for the journey; if, therefore, he is not acquainted with the road he undertakes to drive; 3 Bingh. Rep. 314, 321; drives with reins so loose that he cannot govern his horses; 2 Esp. R. 533; does not give notice of any serious danger on the road; 1 Camp. R. 67; takes the wrong side of the road; 4 Esp. R. 273; incautiously comes in collision with another carriage; 1 Stark. R. 423; 1 Campb. R. 167; or does not exercise a sound and reasonable discretion in travelling on the road, to avoid dangers and difficulties, and any accident happens by which any passenger is injured, both the driver and his employers will be responsible. 2 Stark. R. 37; 3 Engl. C. L. Rep. 233; 2 Esp. R. 533; 11. Mass. 57; 6 T. R. 659; 1 East, R. 106; 4 B. & A. 590; 6 Eng. C. L. R. 528; 2 Mc Lean, R. 157. Vide Common carriers Negligence; Quasi Offence.
Driver – Black’s 3rd
One employed in conducting or operating a coach, carriage, wagon, or other vehicle, with horses, mules, or other animals, or a bicycle, tricycle, or motor car, though not a street railroad car. See Davis v. Petrinovich, 112 Ala. 654, 21 So. 344, 36 L.R.A. 615; Isaacs v. Railroad Co., 7 Am. Rep. 418, 47 N.Y. 122.
Driver – Black’s 4th
One employed in conducting or operating a coach, carriage, wagon, or other vehicle, with horses, mules, or other animals, or a bicycle, tricycle, or motor car, though not a street railroad car. A person actually doing driving, whether employed by owner to drive or driving his own vehicle. (Wallace v. Woods 340 Mo. 452, 102 S.W.2d 91,97)
Driver – Black’s 6th
A person actually doing driving, whether employed by owner to drive or driving his own vehicle.
Driver – F.S. 316.003(10)
Any person who drives or is in actual physical control of a vehicle on a highway or who is exercising control of a vehicle or steering a vehicle being towed by a motor vehicle.
Driver – Dictionary of Occupational Titles, 1965, Volume 1, Definition of Titles
(dom. ser.) see CHAUFFEUR.
Driver – Florida Words & Phrases
See Davis v. Petrinovich, 21 So. 344
“For hire” – Compiled General Laws of Florida, s. 1280 (1927)
“For hire” as defined in this Chapter shall include all motor driven vehicles, or trailers hauled by a motor vehicle, in use for transporting persons, commodities or materials for compensation, or such motor vehicles as may be let or rented to another for consideration: Provided, that motor vehicles temporarily used by farmers for the transportation of agricultural or horticultural products from farms or grove to packing houses or to points of shipment by transportation companies shall not be held to be operating for hire: Provided, further, that motor vehicles used for transporting school children to and from school under contract with school officials shall not be deemed to be in use for hire.
“For hire” – Laws of Florida, c. 25418, s. 1(9)
“For Hire” means any auto transportation company engaged in the transportation of persons or property over the public highways of this state for compensation, which is not a common carrier or contract carrier but transports such persons or property in single, casual and non recurring trips. “For hire” carriage shall not be deemed to include charter carriage as herein defined and no “for hire” carriage of passengers shall be authorized by any permit as herein defined and issued by the Commission under the provisions of this chapter in motor vehicles of a greater passenger-carrying capacity than seven, including the driver or chauffeur.
Infraction – F.S. 318.13(3)
“Infraction” means a noncriminal violation which is not punishable by incarceration and for which there is no right to trial by jury or a right to court appointed counsel.
Highway – Black’s 3rd
An easement acquired by the public in the use of a road or way for thoroughfare. Bolender v. Southern Michigan Telephone Co., 182 Mich. 645, 148 N. W. 697, 700.
A free and public road, way, or street; one which every person has the right to use. Abbott v. Duluth (C. C.) 104 F. 837; Shelby County Com’rs v. Castetter, 7 Ind. App. 309, 33 N. E. 986 (Remaining cites omitted.)
The generic name for all kinds of public ways, whether carriage-ways, bridle-ways, foot-ways, bridges, turnpike roads, railroads, canals, ferrires or navigable rivers. (Numerous cites omitted.)
Highway refers to roadway or street which can be used for travel, as distinguished from way upon which road can be or is being constructed. Allen v. Jones, 47 S. D. 603, 201 N. W. 353; Town of Kenwood Park v. Leonard, 177 Iowa, 337, 158 N. W. 655, 659.
There is a difference in the shade of meaning conveyed by two uses of the word. Sometimes it signifies right of free passage, in the abstract, not importing anything about the character or construction of the way. Thus, a river is called a “highway;” and it has been not unusual for congress, in granting a privilege of building a bridge, to declare that it shall be a public highway. Again, it has reference to some system of law authorizing the taking of a strip of land, and preparing and devoting it to the use of travelers. In this use it imports a roadway upon the soil, constructed under the authority of these laws. Abbott.
* * *
A road to be used by the community at large for any purpose of transit or traffic. Ham. N. P. 239; Railway Co. v. State, 23 Fla. 546, 3 So. 158, 11 Am. St. Rep. 395.
* * *
One under the control of and kept by the public, established by regular proceedings for the purpose, or generally used by the public for twenty years, or dedicated by te owner of the soil and accepted by the proper authorities and for the maintenance of which they are responsible. State v. Gross, 119 N. C. 868, 26 S. E. 91. It includes roads, streets, alleys, lanes, courts, places, trails, and bridges, laid out or erected as such by the public, or, if laid out and erected by others, dedicated or abandoned to the public, or made such in actions for the partition of real property. Pol. Code Cal. § 2618; Patterson v. Munyan, 93 Cal. 128, 29 P. 250.
* * *
Law of the road. Black’s 3rd, under “LAW”
A general custom in America (made obligatory by statute in some states) for pedestrians and vehicles, when meeting in a street or road, to turn to the right in order to avoid danger of collision. See Riepe v. Elting, 89 Iowa, 82, 56 N. W. 285, 26 L. R. A. 769, 48 Am. St. Rep. 356; Wright v. Fleischman, 41 Misc. Rep. 533, 85 N. Y. S. 62; Decatur v. Stoops, 21 Ind. App. 397, 52 N. E. 623; Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65, 70.
Motor vehicle – Laws of Florida c. 14764 (1931)
The term “motor vehicle” shall include all vehicles or machines propelled by any power other than muscular used upon the public highways (but not over fixed rails) for the transportation of persons or property for compensation either as common carriers, private contract carriers or for hire carriers.
Motor vehicle – Laws of Florida c. 20451 (1941)
Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails. [See definition of “vehicle” for c. 20451.]
Motor vehicle – F.S.316.003(21)
Any self-propelled vehicle not operated upon rails or guideway, but not including any bicycle or moped. [See definition of “vehicle” for F.S. 316.]
Motor vehicle – F.S. 320.01(a)
An automobile, motorcycle, truck, trailer, semi-trailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular, but the term does not include traction engines, road rollers, such vehicles as run only upon a track, bicycles, or mopeds.
Motor vehicle – F.S. 322.01(26)
“Motor vehicle” means any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power, motorized wheelchairs, and motorized bicycles as defined in 316.003. [See definition of “vehicle” for F.S. 322.]
Operator – F.S. 163.566
(10) “Operator” means any person engaged in, or intending to engage in, the business of providing public transportation, but does not include a person engaged primarily in the transportation of children to or from school or a person or entity furnishing transportation solely for his or her or its employees or customers.
Passenger – Black’s 3rd
A person whom a common carrier has contracted to carry from one place to another, and has, in the course of the performance of that contract, received under his care either upon the means of conveyance, or at the point of departure of that means of conveyance. (Cites omitted.)
The above definition is not exhaustive. For one who goes to a railroad station to take the next train in a reasonable time before the time for the arrival of the train is a passenger, though he has not purchased a ticket, and the duties imposed by the relation of carrier and passenger are obligatory on the railroad. (Cites omitted.)
And a child about nine months old, who accompanies her mother, who is a passenger, is a passenger, though riding free. (Cites omitted.)
Railway mail clerks, required by Rev. St. U. U. ¤ 4000 to be carried by railroad without compensation, held to be “passengers.” (Cites omitted.)
When a person ceases to be a passenger depends upon the particular facts of each case. (Cites omitted.)
Passenger – Black’s 6th
In general, a person who gives compensation to another for transportation. Shapiro v. Bookspan, 155 Cal.App.2d 353, 318 P.2d 123, 126. The word passenger has however various meanings, depending upon the circumstances under which and in the context in which the word is used; sometimes it is construed in a restricted legal sense as refering to one who is being carried by another for hire; on other occasions, the word is interpreted as meaning any occupant of a vehicle other than the person operating it. American Mercury Ins. Co. v. Bifulco, 74 N.J.Super. 191, 181 A.2d 20, 22.
The essential elements of “passenger” as opposed to “guest” under guest statute are that the driver must receive some benefit sufficiently real, tangible, and substancial to serve as the inducing cause of the transportation so as to completely overshadow mere hospitality or friendship; it may be easier to find compensation where the trip has commercial or business flavor. Friedhoff v. Engburg, 82 S.D. 522, 149 N.W.2d 759, 761, 762, 763.
A person whom a common carrier has contracted to carry from one place to another, and has, in the course of the performance of that contract, received under his care either upon means of conveyance, or at the point of departure of that means of conveyance.
PURSUIT OF HAPPINESS – Baron’s Law Dictionary (pg. 386)
one of the “unalienable rights” of people enumerated in the Declaration of Independence, along with “life” and “liberty.” “The right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give them their highest enjoyment.” 111 U.S. 746, 757. Because the right is not set forth in the Constitution, it is not enforceable by the courts. However, the right to the pursuit of happiness is often raised in arguments against government regulations, because its mention in the Declaration of Independence gives it a degree of forcefulness.
Straight truck – F.S. 316.003 (70)
Any truck on which the cargo unit and motive power unit are located on the same frame so as to form a single, rigid unit.
Traffic – Webster’s Unified Dictionary and Encyclopedia, International Illustrated Edition (1960)
1. Business or trade, commerce. 2. Transportation. 3. The movement of vehicles on street or highway, as, the traffic is very heavy today.
Traffic – Bouvier’s (1856)
Commerce, trade, sale or exchange of merchandise, bills, money and the like.
Traffic – Black’s 1st
Commerce; trade; dealings in merchandise, bills, money, and the like.
Traffic – Black’s 3rd
Commerce; trade; sale or exchange of merchandise, bills, money, and the like. The passing of goods or commodities from one person to another for an equivalent in goods or money. Senior v. Ratterman, 44 Ohio St. 673, 11 N.E. 321; People v. Horan, 293 Ill. 314, 127 N.E. 673, 674; People v. Dunford, 207 N.Y. 17, 100 N.E. 433, 434; Fine v. Morgan, 74 Fla. 417, 77 So. 533, 538; Bruno v. U. S. (C.C.A.) 289 F. 649, 655.
Traffic includes the ordinary uses of the streets and highways by travelers. Stewart v. Hugh Nawn Contracting Co., 223 Mass. 525, 112 N.E. 218, 219; Withey v. Fowler Co., 164 Iowa, 377, 145 N.W. 923, 927.
Traffic – Black’s 4th
Commerce; trade; sale or exchange of merchandise, bills, money, and the like. The passing of goods or commodities from one person to another for an equivalent in goods or money. Senior v. Ratterman, 44 Ohio St. 673, 11 N.E. 321; Fine v. Morgan, 74 Fla. 417, 77 So. 533, 538; Bruno v. U. S. C.C.A.Mass., 289 F. 649, 655; Kroger Grocery and Baking Co. v. Schwer, 36 Ohio App. 512, 173 N.E. 633. The subjects of transportation on a route, as persons or goods; the passing to and fro of persons, animals, vehicles, or vessels, along a route of transportation, as along a street, canal, etc. United States v. Golden Gate Bridge and Highway Dist. Of California, D.C.Cal., 37 F. Supp. 505, 512.
Traffic -Black’s 6th
Commerce; trade; sale or exchange of merchandise, bills, money, and the like. The passing or exchange of goods or commodities from one person to another for an equivalent in goods and money. The subjects of transportation on a route, as persons or goods; the passing to and fro of persons, animals, vegetables, or vessels, along a route of transportation, as along a street, highway, etc.
Traffic – Florida Words & Phrases
(See Fine v. Moran, 77 So. 533, 538)
The word “traffic” is defined in Webster’s New International Dictionary as follows: “To pass goods and commodities from one person to another for an equivalent in goods or money; to buy or sell goods; to barter; trade.” The subjects of manufacturing; producing; storing; selling, and handling any commodity are matters properly connected with the subject or traffic or trade in that commodity.
Traffic ordinance – Florida Words & Phrases
See State ex rel. Szodomka v. Gruber et al., 10 So.2d 899, 901
Traffic regulations – Black’s 6th
Prescribed rules of conduct to promote the orderly and safe flow of traffic.
1. The act or business of moving passengers and goods. 2. The means of conveyance used. 3. Banishment, esp. of convicts to a penal colony.
Transportation – Bouvier’s (1856)
punishment. In the English law, this punishment is inflicted by virtue of sundry statutes; it was unknown to the common law. 2 H. Bl. 223. It is a part of the judgment or sentence of the court, that the party shall be transported or sent into exile. 1 Ch. Cr. Law, 789 to 796: Princ. of Pen. Law, c. 42.
Transportation – Black’s 3rd
The removal of goods or persons from one place to another, by a carrier. See Railroad Co. v. Pratt, 22 Wall. 133, 22 L.Ed. 827; Interstate Commerce Com’n v. Brimson, 154 U.S. 447, 14 Sup.Ct. 1125, 38 L.Ed. 1047; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 5 Sup.Ct. 826, 29 L.Ed. 158.
Under Interstate Commerce Act, (49 USCA sec. 1 et seq.), “transportation” includes the entire body of services rendered by a carrier in connection with the receipt, handling, and delivery of property transported, and includes the furnishing of cars. Pletcher v. Chicago, R. L. & P. Ry. Co., 103 Kan. 834, 177 P. 1, 2.
In a general sense transportation means merely conveyance from one place to another. People v. Martin, 235 Mich. 206, 209 N.W. 87.
In Criminal Law
A species of punishment consisting in removing the criminal from his own country to another, (usually a penal colony), there to remain in exile for a prescribed period. Fong Yue Ting v. U. S., 149 U.S. 698, 13 Sup.Ct. 1016, 37 L.Ed. 905.
Transportation – Black’s 4th
The removal of goods or persons from one place to another, by a carrier. Railroad Co. v. Pratt, 22 Wall. 133, 22 L.Ed. 827; Interstate Commerce Com’n v. Brimson, 14 S.Ct. 1125, 154 U.S. 447, 38 L.Ed. 1047; Gloucester Ferry Co. v. Pennsylvania, 5 S.Ct. 826, 114 U.S. 196, 29 L.Ed. 158.
Transportation – Black’s 6th
The movement of goods or persons from one place to another, by a carrier.
Transportation – 49 U.S.C. § 5102(12)
“transports” or “transportation” means the movement of property and loading, unloading, or storage incidental to the movement.
Transportation – Words and Phrases
See State v. Western Trans Co. (1950, Iowa) 43 N.W.2d 739 [The judge, after giving his conclusion, goes on to give examples of “transportation” – all involving the movement of persons or goods for hire.]
Traveler – Blacks 3rd
One who passes from place to place, whether for pleasure, instruction, business or health. Lockett v. State, 47 Ala. 45; 10 C.B.N.S. 429. The term is used to designate those who patronize inns; the distance which they travel is not material. Walling v. Potter, 35 Con. 185.
Traveler – Blacks 6th
One who passes from place to place, whether for pleasure, instruction, business or health.
Vehicle – Laws of Florida c. 20451 (1941)
Every device in, upon, or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.
Vehicle – F.S. 316.003(75)
Every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.
Vehicle – F.S. 322.01(42)
“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway or operated upon rails or guideway, except a bicycle, motorized wheelchair, or motorized bicycle.
Applicant: The common definition of “applicant” denotes “one who applies” for something, while the technical and legal meaning denotes – for driver licensing purposes – only those who are entitled to and who have applied for letters of administration. When the common man reads a technical use of the word “applicant” in a law or statute, he may inappropriately apply the common definition thereby misunderstanding the law or statute as applying to him.
Letters of administration are “authority granted by a court to the personal representative to act on behalf of the estate of the decedent”. (FS 731.201(22)) [Fla Jur 2d, Decedents’ Property, s. 527] Such personal representative must file an oath that such person will faithfully administer the estate of the decedent. (Fla Prob R 5.320) [Fla Jur 2d, Decedents’ Property, s. 525] Said personal representative also “must file a designation of place of residence, post-office address, and the name, place of residence, and post-office address of a resident in the county where the proceedings are pending as the personal representative’s agent for the service of process or notice, together with the written acceptance of the person so appointed. The designation by the personal representative and acceptance by the resident agent constitute the consent of the personal represenative filing it that service of process or notice upon the designated agent will be sufficient to bind the personal representative in any action against the representative, either in the personal representative’s representative capacity, or personally, if the personal action accrues in the administration of the estate.” (Fla Jur 2d, Decedents’ Property, s. 526)
Automobile: ‘An “automobile” is a motor vehicle.’ Jernigan v. Hanover Fire Ins. Co. of N.Y., 60 S.E.2d 847, 848, 235 N.C. 334. [Words & Phrases, Automobiles, pg. 640] ‘The word “automobile” in Motor Vehicle Act * * * requiring highest degree of care in operation * * *; such requirement being in derogation of common law, and therefore to be strictly construed¦’ Walinitz v. Werner, Mo.App., 241 S.W. 668, 669. [Words & Phrases, Automobiles, pg. 645] ‘The term “automobile” is the general name which has been adopted by popular use and approval, for all forms of self-propelling vehicles for use on hghways and streets for general freight and passenger service.’ Life & Casualty Service ins. Co. of Tennessee v. Roland, 165 S.E. 293, 294, 45 Ga.App. 467. [Words & Phrases, Automobiles, pg. 648]
Driver: The common definition of “driver” denotes anyone who is driving (in control of) a vehicle (conveyence). The technical meaning applies only to those who drive a vehicle used for transporting persons or property for hire. The common understanding of “driver” is not the technical one, so the common man may call himself a driver when in law he is not. See Davis v. Petrinovich, 21 So. 344.
Traffic: By all modern legal definitions “traffic” concerns the subjects of “transportation”. It does not include one simply on a public highway travelling. Black’s 3rd gives one definition of traffic as “Traffic includes the ordinary uses of the streets and highways by travelers.” But this definition was a departure from the commercial definition and was removed from Black’s 4th edition on and replaced with a commercial interpretation. Apparently the common definition had made its way into the legal dictionaries and needed to be removed to keep the legal definitions in accordance with original legal intent. The common, in contrast with the legal, definition includes all manners of [non-technical] vehicles (conveyences) on the highways and streets; thus the common man may consider himself to be under “traffic” laws when he is not.
Transportation: Transportation in the sense of “taking up of persons or property at some point and putting them down at another” (Caton v. Winslow Bros. & Smith Co., 34 N.E.2d 638, 642, 309 Mass. 150) is apparently of recent invention as Bouvier’s 1856 edition Law Dictionary only presents a meaning relating to punishment for crime. The commercial and criminal definitions are presented in Black’s 3rd, but only the commercial definition remains in Black’s 4th and later editions. The common man’s understanding that transportation is simply the “means of conveyance used“, while not strictly at odds with the legal definition, tricks people into thinking that they own a means of “transportation” when they in fact own a “household good”. ** TBD
Deliver distinguished from Transportation: “According to Webster’s International Dict., Century Dict., vol. 2, and Black’s Law Dict. 1184, there is a distinction between the words “transport” and “deliver”; the words being of entirely different origin and signification. To transport an article it must be received and retained by the person charged with the duty, while to deliver an article the person instrusted with the possession must part with it. The word “deliver” is compounded of “de” and “liverare,” “to set free; to set at liberty; to give over.” Revisal 1905 provides that any railroad, failing to transport within a reasonable time goods received, shall pay a penalty, and declares that it shall be considered that a railroad has transported freight within a reasonable time if it has done so within the ordinary time required. It is evident that the Legislature had in mind the distinction between duty to “transport” and to “deliver,” since to transport is the act of the carrier without the intervention or aid of the consignee, while delivery cannot be accomplished without the concurrence of the consignee, and the effect of the statute is to impose the penalty on a railroad for failing to reasonably “transport” goods, as distinguished from a failure to transport and deliver goods to consignee, and for a failure to perform the first the penalty is imposed, while for a failure to perform the second the consignee may sue for damages. Alexandre v. Atlantic Coast Line R. Co., 56 S.E. 697, 698, 144 N.C. 93, citing Bellows v. Folsom, 27 N.Y.Super.Ct. 43; United States v. McCready, 11 F. 225; Walker Bros. V. Southern R. Co., 49 S.E. 84, 127 N.C. 163; Gloucester Ferry Co. v. Pennsylvania, 5 S.Ct. 828, 114 U.S. 388; Hilliard v. Wilmington & W. R. Co., 51 N.C. 343; Chalk v. Charlotte, C. & A. R. Co., 85 N.C. 423; Coble v. Shoffner, 75 N.C. 42.” [Emphasis added.] [Words & Phrases (under “Transport; Transportation”)]
“Each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be amended or revised by reference to its title only; but in such case the act, as revised, or section, as amended, shall be re-enacted and published at length.” (Florida Constitution, Art. 3, s. 16) [Fine v. Moran, 77 So. 533, 538]
This constitutional provision “was designed to prevent the surprise or fraud on the legislators and on the people that might result from provisions hidden in the body of the statute and not indicated by its title. * * * Thus, where provisions in a statute constitute a broader or essentially different subject that is not properly connected with the stated subject of the act, such provisions are inoperative as violative of the constitution.” (Fla. Jur. 2d, Statutes, s. 62)
“The constitutional provision that statutes must embrace a single subject and matter properly connected therewith, which subject must be expressed in the title, applies to * * * all forms of legislative enactment”. (Fla. Jur. 2d, Statutes, s. 65)
“Two subjects of legislation cannot be germane where it is necessary to change the meaning of words to place them in the same class or category, and where provisions applicable to the one are incongruous when applied to the other.” (Beary v. Narrau, 37 So. 961, 962)
“But such amendment should be limited in its scope to the subject-matter of the section proposed to be amended. “In such case the introduction of any new substantive matter not germane or pertinent to that contained in the original sections cannot be regarded as an amendment thereto, but must be regarded as independent legislation upon a matter not expressed in the title of the act, and therefore void. The amendment of an act in general, or a particular section of an act, ex vi termini implies merely a change of its provisions upon the same subject to which the act or section relates.” State v. Sugar Refining Co., 106 La. 565, 31 South. 181.” (Beary v. Narrau, supra.)
“If, in legislating to amend sections expressed in the title, the lawmakers cannot alter the subject-matter of other sections not expressed therein, for a stronger reason they cannot ingraft in the sections to be amended provisos on a subject-matter not embraced in any section of the prior act.” (Beary v. Narrau, supra.)
“Where a court is confronted with a statute, a literal construction of which would render it unconstitutional, the court must adopt such a construction, when reasonably possible, as will save the statute and at the same time save every savable provision or term in it.” (Teche Lines, Inc. v. Danforth et al., 12 So. 2d 784, hn. 5)
“Where the words used have a definite and precise meaning, the courts have no power to go elsewhere in search of conjecture in order to restrict or extend the meaning. Black on Interpretation of Laws, 37. Courts cannot correct supposed errors, omissions, or defects in legislation. ‘The object of interpretation is to bring sense out of the words used, and not to bring a sense into them.’ Black on Interpretation of Laws, supra.” (Fine v. Moran, supra, 536)
“All laws should receive a sensible application. It will always, therefore, be presumed that the Legislature intended exceptions to its language, which would avoid results of this character [technical violation]. The reason of the law in such cases should prevail over its letter. * * * It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” (Teche Lines, Inc. v. Danforth et al., 12 So.2d 784, 786, quoting Boyd v. Coleman, 146 Miss. 449, 111 So. 600)
“The intention of the Legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. The court will not follow the letter of the statute, when it leads away from the true intent and purposes of the Legislature . . .” (Currary vs. Lehman, 47 So. 18, hn. 2.) [Quoted in Fla.Atty.Gen.Op. 041-79, February 20, 1941.]
Titles of laws cannot be “so worded as to mislead an ordinary mind as to the real purpose and scope of the enactment.” (Butler v. Perry, 66 So. 150, 240 US 328)
“The test of whether a title misleads is whether it would deceive the mind of an ordinary person used to the common meaning of language, not the mind of a precisionist used to technical refinements of terms. (Ison v. Zimmerman, 372 So. 2d 431)” [Fla. Jur. 2d, Statutes, s. 63]
Time of taking effect
The principle of class legislation derives from the Fourteenth Amendment to the United States Constitution and prevents legislation from embracing more than one class of people or persons. What constitues a class changes depending on what is being regulated.
§ 820. Material and substantial differences in regulated and unregulated classes
“The Fourteenth Amendment, in requiring equal protection of the laws, is not to be construed as introducing a factitious equality without regard to the practical differences that are best met by corresponding differences of treatment. The Supreme Court has held that, generally speaking, it is competent for a legislature to determine upon what differences a distinction may be made for the purpose of statutory classification between objects otherwise having resemblances, although, of course, such power cannot be exercised arbitrarily and the distinction made must have some reasonable basis. The general rule is well settled that a classification, to be valid, must rest upon material differences between the persons, activities, or things included in it and those excluded; furthermore, it must be based upon substantial distinctions. It is only when such distinctions exist as differentiate, in important particulars, persons or classes of persons from the body of the people that laws having operation only upon such particular persons or classes of persons are upheld as valid enactments. As the rule has sometimes been stated, the classification must, in order to avoid the constitutional prohibition, be founded upon pertinent and real differences, as distinguished from irrelevant and artificial ones. The legislature cannot take what might be termed “a natural class of persons,” split that class in two, and then arbitrarily designate the dissevered factions of the original unit as two classes and thereupon enact different rules for the government of each. By the same token, while a statutory discrimination between two like classes cannot be rationalized by assigning different labels to them, neither can two unlike classes be made indistinguishable by attaching a common label to them. Any law that is made applicable to one class of citizens only must be based on some substantial difference between the situation of that class and other individuals to which it does not apply, and must rest on some reason on which it can be defended.” 16B Am. Jur. 2d Constitutional Law § 820 (2005)
After the Supreme Court of the State of Florida found that an act of its legislature regulating together public and private carriers was constitutional, a habeas corpus proceding to the U. S. Supeme Court led to their holding that it was not:
“All carriers within the act, whether public or private, are put by the terms of the statute upon precisely the same footing. All must obtain certificates of public convenience and necessity upon like application and conditions. It is true that the statute does not in express terms demand that a private carrier shall constitute itself a common carrier, but the statute purports to subject all the carriers which are within the terms of its definition to the same obligations. Such a scheme of regulation of the business of a private carrier, such as the appellant, is manifestly beyond the power of the state.” Smith v. Cahoon, 283 U.S. 553 (1931)
This has never been over-turned. In addition, we have the Florida Supreme Court declaring in Stewart v. Mack that:
“Statutes relating to the powers of Railroad and Public Utilities Commission must be construed together, and have as their object the appropriate regulation of rail and motor transportation services. F.S.A. 323.01 et seq.” Stewart et al. v. Mack et al., 66 So.2d 811 (1953), hn. 1.
“Object of statute relating to the regulation of motor vehicles by the Railroad and Public Utilities Commission was to foreclose the inordinate use of public highways as a means of conducting carrier service for profit in cases where there is no showing of public convenience or necessity. F.S.A. 323.01 et seq.” Stewart et al. v. Mack et al., 66 So.2d 811 (1953), hn. 2.
We can therefore see that not only has the state of Florida regulated only commercial users of the rights of way, but that the state is prohibted – by the operation of equal protection / class legislation – from regulating private users through those same laws. The Florida statutes regulating motor vehicles cannot be used against private people, such legislation is “manifestly beyond the power of the state.”
“The right of a citizen to use the highways, including the streets of the city or town, for travel and to transport his goods, is an inherent right which cannot be taken from him.” Florida Motor Lines, Inc. v. Ward, hn. 7, 137 So. 163 [Fla Jur 2d, Highways, s. 121]
“The right of a citizen to travel on public highway is a common right which he has under his right to enjoy “life, liberty, and pursuit of happiness”, and the right to “travel”, which means the right to go from one place to another, includes the right to start, to go forward on the way, and to stop when the traveler’s destination has been reached, and also the right to stop on the way, temporarily, for a legitimate or necessary purpose when that purpose is an immediate incident to travel.” (Teche Lines, Inc. v. Danforth et al., 12 So. 2d 784, hn. 3)
“The right of the citizen to use the highways, including the streets of the city or town, for travel and to transport his goods, is an inherent right which cannot be taken from him, but it is subject to reasonable regulations in the interest of the public good. In degree this right of the citizen is superior to that of the common carrier by motorbus, dray, coach, taxi, or other device, the latter being controlled by legislative grant, or franchise which may be regulated or denied, and may be given to some and denied to others.” Florida Motor Lines, Inc. v. Ward, 137 So. 163, hn. 7
“The constitutional right of citizen to travel on public highways may be reasonably regulated by legislative acts in pursuance of police power of state, but the police power cannot justify the enactment of any statute which amounts to an arbitrary and unwarranted interference with or unreasonable restriction on those rights of citizens which are fundamental.” (Teche Lines, Inc. v. Danforth et al., 12 So. 2d 784, hn. 4)
“Statutes regulatory of highway traffic must have a practical or workable interpretation and not an arbitrary or unreasonable construction.” (Teche Lines, Inc. v. Danforth et al., 12 So. 2d 784, hn. 1)
*”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.” Kent v. Dulles, 357 US 116, 125.
*”The right to travel is a well-established common right that does not owe its existence to the federal government. It is recognized by the courts as a natural right.” Schactman v. Dulles 96 App DC 287, 225 F2d 938, at 941.
*”The state cannot diminish rights of the people.” Hertado v. California, 110 US 516*”Statutes that violate the plain and obvious principles of common right and common reason are null and void.” Bennett v. Boggs, 1 Baldw 60
*”The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Davis v. Wechsler, 263 US 22, at 24
*”Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda v. Arizona, 384 US 436, 491.
*”The claim and exercise of a constitutional right cannot be converted into a crime.” Miller v. US, 230 F 486, at 489.
*”There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights.” Sherer v. Cullen, 481 F 946
“The power of the sovereign over the streets of a city is limited. He cannot alien them or deprive the inhabitants of their use, because such use is essential to the enjoyment of urban property.” New Orleans v United States, 10 Pet 662, 9 L Ed 573. [8 U.S.Dig., Highways ¤ 8.]
Any temporary use of a highway or street that is rendered absolutely necessary from the necessities of trade or erection of buildings, that does not unnecessarily or unreasonably obstruct the same, is lawful. Indiana R. Co. v. Calvert, 10 L.R.A. (N.S.) 780, 168 Ind. 321, 80 N. E. 961. (L.R.A. Digest 1888-1918, Highways and Streets, 64.)
The streets and highways belong to the public. Hadfield v. Lundin, L.R.A.1918B, 909, 98 Wash. 657, 168 Pac. 516. (L.R.A. Digest 1888-1918, Highways and Streets, 65.)
The title to the streets being in the city as trustee for the public, no grant or permission can be legally given which will interfere with their public use. The right of the public to the use of the streets is absolute and paramount to any other. Lincoln Safe Deposit Co. v. New York, L.R.A. 1915F, 1009, 210 N. Y. 34, 103 N. E. 768. (L.R.A. Digest 1888-1918, Highways and Streets, 65.)
The citizens of a municipality have the right to the reasonable use of the streets not only on the surface but above the surface. Temple v. McComb City Electric Light & P. Co., 11 L.R.A. (N.S.) 449, 89 Miss. 1, 42 So. 874. (L.R.A. Digest 1888-1918, Highways and Streets, 65.)
The dedication of land for a street creates an easement which allows the municipality to make any legitimate public use of it which does not impair the right of passage or the right of ingress and egress to and from the adjoining property. Hobbs v. Long Distance Teleph. & Teleg. Co., 7 L.R.A. (N.S.) 87, 147 Ala. 393, 41 So. 1003. (L.R.A. Digest 1888-1918, Highways and Streets, 65.)
The ownership by a city of the fee of land in the street is impressed with a trust for the benefit of the whole people of the state, to keep them open for use as such. New York v. Rice, 28 L.R.A. (N.S.) 375, 198 N. Y. 124, 91 N. E. 283. (L.R.A. Digest 1888-1918, Highways and Streets, 65.)
A municipality holds its streets and its power to regulate and control them in trust for the public, and cannot put them to any use inconsistent with street purposes. McIllhinny v. Trenton, 10 L.R.A. (N.S.) 623, 148 Mich. 380, 111 N. W. 1083. (L.R.A. Digest 1888-1918, Highways and Streets, 65.)
A traveler lawfully using a public highway has the same rights to enjoy such use undisturbed as if he were the owner in fee simple. Smethurst v. Independent Cong. Church, 2 L.R.A. 695, 148 Mass. 261, 19 N. E. 387. (L.R.A. Digest 1888-1918, Highways and Streets, 65.)
Any and all of the public have an equal right to the reasonable use of a highway. Harold v. Jones, 3 L.R.A. 406, 86 Ala. 274, 5 So. 438. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
Public streets are for the use and benefit of all and no one has any exclusive right to privileges therein. Theobold v. Louisville, N. O. & T. R. Co., 4 L.R.A. 735, 66 Miss. 279, 6 So. 230. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
The right of parties upon the public ways and streets is a public right in which the whole community have an equal interest, with an equal right to complain of any infringement upon any such rights. Charlotte v. Pembroke Iron Works, 8 L.R.A. 828, 82 Me. 391, 19 Atl. 902. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
All members of the general public without regard to the place or position they occupy or the business they are engaged in, are entitled to the equal use and enjoyment of the public streets and places. Louiville R. Co. v. Louiville F. & Life Protective Asso. 43 L.R.A. (N.S.) 600, 151 Ky. 644, 152 S. W. 799. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
Highways are constructed and maintained at public expense, for public use by all persons alike, without limitation or restriction, save only that the use must conform to the well-established rules and regulations prescribed by law. Deputy v. Kimmell, 51 L.R.A. (N.S.) 989, 73 W. Va. 595, 80 S. E. 919. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
Every person whether an owner of the land or not, whether a citizen or stranger, has the right in common with the rest of the public, to travel all of the public highways. Hyde v. Minnesota, D. & P. R. Co., 40 L.R.A. (N.S.) 48, 29 S. D. 220, 136 N. W. 92. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
All persons have equal right to use the public streets and highways for purposes of travel by proper means, with due regard to the corresponding rights of others. Butler v. Cabe, L.R.A.1915C, 702, 116 Ark. 26, 171 S. W. 1190. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
Every citizen has a right to use public highways. Swift v. Topeka, 8 L.R.A. 772, 43 Kan. 671, 23 Pac. 1075. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
The permanent use of a public street for a private purpose cannot be authorized by a city. Hibbard S. B. & Co. v. Chicago, 40 L.R.A. 621, 173 Ill. 91, 50 N. E. 256. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
No individual or corporation can acquire any portion of a public street, for exclusive private use, to the exclusion of the public. Hibbard S. B. & Co. v. Chicago, 40 L.R.A. 621, 173 Ill. 91, 50 N. E. 256. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
A public street in a city is a public highway and its uses belong to the public generally and it cannot be said that such uses are limited to the municipality or to its citizens alone. Alabama Western R. Co. v. State ex rel. Garber, 19 L.R.A. (N.S.) 1173, 155 Ala. 491, 46 So. 468. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
The right of the public to use a street for purposes of travel extends to the portion set apart or used for sidewalks, as well as to the way for carriages, and, in short, to the entire width of the street upon which the land of the lot owner abuts. Chase v. Oshkosh, 15 L.R.A. 553, 81 Wis. 313, 51 N. W. 560. (L.R.A. Digest 1888-1918, Highways and Streets, 67.)
The public is entitled to the free and unobstructed use of the entire street and sidewalk for purposes of travel, subject only to the reasonable and proper control of the municipality. Vanderhurst v. Tholcke, 35 L.R.A. 267, 113 Cal. 147, 45 Pac. 266. (L.R.A. Digest 1888-1918, Highways and Streets, 67.)
The public has the right to the use of the entire sidewalk, in a public street, for the purposes of passage and other public purposes. Costello v. State, 35 L.R.A. 303, 108 Ala. 45, 18 So. 820. (L.R.A. Digest 1888-1918, Highways and Streets, 67.)
The public roads, free from any obstructions to travel, are solely, and from fence to fence, for the use of the traveling public. Lebanon Light, Heat & P. Co. v. Leap, 29 L.R.A. 342, 139 Ind. 443, 39 N. E. 57. (L.R.A. Digest 1888-1918, Highways and Streets, 67.)
The public is entitled to the full and free use of all the territory embraced within the limits of a highway, not only for actual passage, but for all purposes that are legitimately incident thereto. State v. Kean, 48 L.R.A. 102, 69 N. H. 122, 45 Atl. 256. (L.R.A. Digest 1888-1918, Highways and Streets, 67.)
A traveler may make use of any portion of the highway he chooses. Hubbard v. Bartholomew, 49 L.R.A. (N.S.) 443, 163 Iowa 58, 144 N. W. 13. (L.R.A. Digest 1888-1918, Highways and Streets, 67.)
*”The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived.” Chicago Motor Coach v. Chicago, 169 NE 221.
“Even the legislature has no power to deny a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience.” (Chicago Motor Coach Company et al. v. Chicago, 66 A.L.R. 834,838, 337 Ill. 200, 169 N. E. 22.)
“All persons, in the absence of legislative edict, are vested with the right to the use of the streets and highways for travel from one place to another in connection with their business, when such use is incidental to that business. This is an ordinary use of the streets and highways, and is frequently characterized as an inherent or natural right.” “Even the legislature has no power to deny a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience.” (Chicago Motor Coach Company et al. v. Chicago, 66 A.L.R. 834,842, 337 Ill. 200, 169 N. E. 22.)
“The distinction between ordinary use of the highways, which may not be denied, and extraordinary use thereof, which may be permitted or denied, has been shown in numerous opinions of this court, and by them it has become well-settled in this state that a city may, under the power of exclusive control granted to it by the Legislature, allow or deny any use of them which is not inconsistent with the public objects for which they are held, and may regluate such use and fix reasonable compensation to be paid therefor.” (Chicago Motor Coach Company et al. v. Chicago, 66 A.L.R. 834,843, 337 Ill. 200, 169 N. E. 22.)
“The ordinary use of a city’s streets by a citizen is an inherent right which cannot be taken from him by the city, and may only be controlled by reasonable regulation, but the right to use the streets for conducting thereon a private business is not inherent or vested, and can only be acquired by permission or license from the city, whose power to withhold such permission or license is an essential and necessary prerogative of municipal government.” (State v. Quigg, hn. 5, 114 So. 859.)
“The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highways 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 a citizen, a common right, a right common to all, while the latter is special, unusual, and extraordinary. As to the former, the extent of legislative power is that of regulation; but, as to the latter, its power is broader. The right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature.” (State v. Quigg, hn. 7, 114 So. 859.)
“The right of a citizen to travel upon the public highways and to transport his property thereon, either by horse-drawn carriage or wagon or automobile, is not a mere privilege which a city may permit or prohibit at will, but a common right which he has under his right to life, liberty, and the pursuit of happiness.” (Thompson v. Smith, hn 7, 71 A.L.R. 604, 154 S. E. 579)
“A city may, under its police power, regulate the right of a citizen to travel upon the public highways, but it may not arbitrarily or unreasonably prohibit or restrict such right, nor may it permit one and refuse to permit another of like qualifications, under like conditions and circumstances, to exercise such right.” (Thompson v. Smith, hn 8, 71 A.L.R. 604, 154 S. E. 579)
“Neither a petition for mandamus to compel the restoration of an automobile driver’s permit, revoked under an invalid ordinance, not the setting up of the invalidity of such ordinance as a defence to a charge of driving without a permit, is as complete and adequate as a suit for injunction against interference, under the color of such ordinance, with the lawful exercise of the right to drive an automobile on a city’s streets.” (Thompson v. Smith, hn 18, 71 A.L.R. 604, 154 S. E. 579)
The doctrine that “when the state or a city has the power to prohibit the doing of an act altogether, it has the power to permit the doing of the act upon any condition, or subject to any regulation, however arbitrary or capricious it may be; and it may lawfully delegate to executive or administrative officers an uncontrolled and arbitrary discretion as to granting and revoking permits or licenses to do such acts.” “But this doctrine has no application to permits issued for the purpose or regulating the exercise of the common right to operate a private automobile on the streets of a city in the usual and ordinary way to transport the driver’s person and property.” (Thompson v. Smith, 71 A.L.R. 604,610-611, 154 S. E. 579)
“Statute requiring contract carriers by motor to obtain permits, held not construable as prohibiting casual use for hire of roads by individuals not in business of carriage for hire. (Vernon’s Ann. Civ. St. Tex. Art. 911b.)” (Stephenson v. Binford, hn. 8, 53 F.(2d) 509.)
“A distinction must be observed between the regulation of an activity which may be engaged in as a matter of right, and one carried on by government sufferance or permission, since in the latter case the power to exclude altogether generally includes the lesser power to impose conditions, and may justify a degree of regulation not admissible in the former.” (Packard v. Banton, hn. 8, 264 U. S. 140, 44 Sup.Ct. 257.)
“The right to use the streets legitimately for transporting property is as secure and inviolate as the private rights of an abutting owner.” McClintock v. Richmond Brick Corp. 152 Va 1, 145 SE 425, 61 ALR 1033.
*”Regulations, fees, taxes, may not be applied to natural person using common highways as it is in derogation of common right of public to use highways as an avenue upon which vehicles for transportation of goods, passengers, freight and traffic of all kinds may be freely moved, having due regard for rights of others, while this, or other provisions of statute, should be fairly, liberally construed to promote the effect the evident purpose for which it was intended, care should be exercised not to unduly extend it’s effect.” Young v. Madison County, 115 N.W. 23
*”This right of the people in the [use of] streets and highways of the State, whether inside or outside the municipalities thereof, is a paramount right.” People’s GasLight and Coke Co. v. City of Chicago, 109 N.E. 2d 777,781
*”Our society is builded in part upon the free passage of men and goods, and the public streets and highways may rightfully be used for travel by everyone.” Hansen v. Hall, 202 Minn. 381, 383.
*”A highway is a passage, road and street which every person has a right to use.” Jewett v. State, Ohio, 22 O.L.A. 37
*”A highway includes all public ways which public generally has right to use for passage and traffic, and includes streets in cities, sidewalks, turnpikes and bridges.” Central Ill. Coal Mining Co. v. Illinois Power Co., 249 Ill. App. 199
*”Our court has stressed the basic right of the transient public and abutting property owners to the free passage of vehicles on public highways and the paramount function of travel as overriding all other subordinate uses of our streets.” State v. Perry, 269 Min. 204, 206
*”A highway is a public road, which every citizen of the state has a right to use for the purpose of travel.” Shelby County Com’rs v. Castetter, 33 N.E. 986, 987; 7 Ind. App. 309; Spindler v. Toomey, 111 N.E. 2d 715, 716.
*”The public have a right of free and unobstructed transit over streets, sidewalks and alleys, and this si the primary and appropriate use to which they are generally dedicated.” Pughv. City, 176 Iowa 593, 599.
*”A highway according to the common law, is a place in which all the people have a right to pass. A common street and public highway are the same, and any way which is common to all the people may be called a ‘highway’.” Skinner v. Town of Weathersfield, 63 A. 142, 143;78 Vt.410.
*”The court makes it clear that a license relates to qualifications to engage in profession, business, trade or calling; thus, when merely traveling without compenation or profit, outside of business enterprise or adventure with the corporate state, no license is required of the natural individual traveling for personal business, pleasure and transportation..” Wingfield v. Fielder 2d Ca. 3d 213 (1972)
*”No State entity has the power to allow or deny passage on the highways, byways, nor waterways…transporting his vehicles and personal property for either recreation or business, but by being subject only to local regulation, i.e., safety, caution, traffic lights, speed limits, etc. Travel is not a privilege requiring licensing, vehicle registration, or forced insurances.” Chicago Coach Co. v. City of Chicago, 337 Ill. 200, 169 N.E. 22
“The use of highways for purposes of travel and transportation is not a mere privilege, but a common and fundamental right, of which the public and individuals cannot be encroached upon by private individuals or corporations. Moreover, streets and highways are for the use of the public in general passage and traffic without distinction, and all persons have an equal right to use them for purposes of travel by proper means, and with due regard for the corresponding rights of others.” (25 Am Jur, Highways, § 163, pg. 457.)
“The public right to use the streets legitimately for transporting property is as secure and inviolate as the private rights of an abutting owner. McClinton v. Richlands Brick Corp., 152 Va 1, 145 SE 425, 61 ALR 1033.” (25 Am Jur, Highways, § 163, nt. 1, pg. 457.)
“The county court, which has title to the public highways in trust for the public, has no power, without legislative authority, to exclude any member of the public from reasonable use of the highways. Summer County v. Interurban Transp. Co. 141 Tenn 493, 213 SW 412, 5 ALR 765.” (25 Am Jur, Highways, § 163, nt. 2, pg. 457.)
“The public easement includes every kind of travel and communication for the movement or transportation of persons or property which is reasonable and proper in the use of a public highway, or of a particular portion thereof, with all means of conveyance which can be introduced with a reasonable regard for the safety and convenience of the public, and without inflicting upon the owner of the fee an injury differing in kind from that imposed by use and improvement for ordinary public travel, and embraces all public travel, not prohibited by law or by dedicatory restriction, on foot, in carriages, omnibuses, stages, sleighs, or other vehicles, including motor vehicles, as the wants and habits of the public demand. The public in not confined to the use of vehicles is use at the time when the streets or highways were established, but may use such other reasonable means of conveyance as may be discovered in the future, provided they do not exclude the proper use of the highways by other modes or kinds of vehicles, or tend to destroy it as a means of passage and travel common to all.” (25 Am Jur, Highways, § 165, pg. 459-460.)
The primary law of the highway is motion. Brandt v. Spokane & I. E. R. Co., 52 L.R.A. (N.S.) 760, 78 Wash. 214, 138 Pac. 871. (L.R.A. Digest 1888-1918, Highways and Streets, 69.)
The primary use of a street is confined to travel and transportation. Donovan v. Allert, 58 L.R.A. 775, 11 N. D. 289, 91 N. W. 441. (L.R.A. Digest 1888-1918, Highways and Streets, 69.)
Streets are primarily intended for the use of travelers and a municipal corporation has no power in the absence of express legislative authority to allow a street to be used for any other purpose. Augusta v. Reynolds, 69 L.R.A. 564, 122 Ga. 754, 50 S. E. 998. (L.R.A. Digest 1888-1918, Highways and Streets, 69.)
The paramount purpose of maintaining streets and alleys is for public travel, and all other uses must be subordinate thereto. Spencer v. Andrew, 12 L.R.A. 115, 82 Iowa 14, 47 N. W. 1007. (L.R.A. Digest 1888-1918, Highways and Streets, 69.)
Streets and highways are dedicated, secured, and maintained primarily for public transit, and must be so preserved. All other uses thereof must be subordinated or yield to the right of free and unobstructed passage. Pugh v. Crawford, L.R.A.1917F, 345, 176 Iowa 593, 156 N. W. 892. (L.R.A. Digest 1888-1918, Highways and Streets, 69.)
The paramount object in establishing and maintaining streets is for the purposes of public travel, but, subject to this, they may be lawfully used for other purposes, which are conducive to the public convenience and which tend to make them of greater utility and convenience to those who legally have a right to their use. Smith v.Jefferson, 45 L.R.A. (N.S.) 92, 161 Iowa 245, 142 N. W. 220. (L.R.A. Digest 1888-1918, Highways and Streets, 69.)
It is the duty of the municipal authorities having control of the highways to keep in mind that they are primarily for the passage of persons on foot and in vehicles, and, while permitting them to be used for other purposes, it should not be done in a manner which will prevent their use by the public or will render them unsafe or dangerous. McKim v. Philadelphia, 19 L.R.A. (N.S.) 506, 217 Pa. 243, 66 Atl. 340. (L.R.A. Digest 1888-1918, Highways and Streets, 69.)
As a general rule, an occupation of streets otherwise than for travel and transportation is presumptively inferior and subservient to the dominant easement of the public for highway purposes. Cincinnati Inclined Plane R. Co. v. City & Suburban Teleg. Asso., 12 L.R.A. 534, 48 Ohio St. 390, 27 N. E. 890. (L.R.A. Digest 1888-1918, Highways and Streets, 69.)
A municipality has no power to authorize such a use of a street, although it be a public one, as will destroy its usefulness as a public thoroughfare. State ex re. St. Louis Underground Service Co. v. Murphy, 34 L.R.A. 369, 134 Mo. 548, 31 S. W. 784, 34 S. W. 51, 35 S. W. 1132. (L.R.A. Digest 1888-1918, Highways and Streets, 69.)
The right of the public to use the streets for the purpose of passage by such means as it may see fit to employ is given when streets are granted by a plat of an addition to a city, but this right of passage does not include the right to permanently and exclusively appropriate any portion of the street to the continued exclusions of the remainder of the public. Jaynes v. Omaha Street R. Co., 39 L.R.A. 751, 53 Neb. 631, 74 N. W. 67. (L.R.A. Digest 1888-1918, Highways and Streets, 69.)
The people generally are at liberty to use highways for travel, transportation and communication, subject only to the condition that such use does not interfere with other lawful uses of the highway nor invade the rights of the owners of abutting lands, where the state has neither prescribed any special conditions limiting or regulating such use, nor delegated its power to control the highways. State ex rel. Bartlett v. Weber, 43 L.R.A. (N.S.) 1033, 88 Kan. 175, 127 Pac. 536. (L.R.A. Digest 1888-1918, Highways and Streets, 69.)
“”It is obvious that those who operate motor vehicles for the transportation of persons or property for hire enjoy a different and more extensive use of the public highways. * * * Such extraordinary use constitutes a natural distinction and a full justification for their separate classification and for relieving from the burden of the license tax those who merely employ the public highways for the transportation of their own property or employees.” Bacon Service Corporation v. Huss, 129 Cal. 21, 248 P. 235, 238.” (State v. Karel, 180 So. 3 at 8.)
A highway established for the general benefit of passage and traffic must admit of new methods of use whenever it is found that the general benefit requires them. Indiana Springs Co. v. Brown, 1 L.R.A. (N.S.) 238, 165 Ind. 465, 74 N. E. 615. (L.R.A. Digest 1888-1918, Highways and Streets, 68.)
The general power to regulte the use of streets is not confined to public uses known at the time of its dedication, but extends to new uses as they spring into existence. State ex rel. St. Louis Underground Service Co. v. Murphy, 34 L.R.A. 369, 134 Mo. 548, 31 S. W. 784, 34 S. W. 51, 35 S. W. 1132. (L.R.A. Digest 1888-1918, Highways and Streets, 68.)
(1911). Owners and operators of automobiles have the same right to use the streets and highways that owners and operators of other vehicles possess, and all alike must exercise reasonable care and caution for the safety of others. Farnsworth v. Tampa Electric Co., 62 Fla. 166, 57 So. 233. (2 Fla Dig, Highways, 10.)
“ The defects which vitiate these instructions are so obvious that extended discussion is not required. It was held in House v. Cramer 134 Iowa, 374, 112 N. W. 3, 10 L. R. A. (N. S.) 655, 13 Am. & Eng. Ann. Cas. 461, that “operators of automobiles have the same right to use the highways that drivers of horses or other vehicles possess, but they must excercise reasonable caution for the safety of others, and in dteremining the degree of care required the character of the machine, its speed, size, appearance, manner of movement, noise and the like may be taken into consideration.” Also, see note to this case on page 463 of 13 Am. & Eng. Ann. Cas., where a number of authorities will be found collected. It is said in Cunningham v. Castle, 127 App. Div. 580, text 586, 11 N. Y. Supp. 1057, 1061: “The automobile is not necessarily a dangerous device. It is an ordinary vehicle of pleasure and business. It is no more dangerous per se than a team of horses and a carriage, or a gun, or a sailboat, or a motor launch.” It was said in City of Chicago v. Banker, 112 Ill. App. 94, text 99: “The fact that an automobile as a comparatively new vehicle is beside the question. The use of the streets must be extended to meet the modern means of locomotion.” The discussion in Moses v. Pittsburg F. W. & C. R. R. Co., 21 Ill. 516, as to the right to use the streets will be found profitable. Also, see Brinkman v. Pacholke, 41 Ind. App. 662, test 666, 84 N. E. 762. As was said in the note in 13 Am. & Eng. Ann. Cas., referred to above: “Accordingly it has been generally held that the owner of an automobile has the same right as the owner of other vehicles to use highways or streets, and that like them he must exercise reasonable care and caution for the safety of others.” In fine, whatever may be our individual feelings toward the automobile, and we recognize the fact that some view it with less and some with more favor, it would seem to have come to stay with us, and we would hardly be warranted in classing it as “an undesirable citizen,” and we most assuredly cannot treat it as an outlaw.” Farnsworth v. Tampa Electric Co., 57 So 233, 237 (S.C.Fla. 1912)
“Automotive vehicles are lawful means of conveyance and have equal rights upon the streets with horses and carriages. (Chicago Motor Coach Company et al. v. Chicago, 66 A.L.R. 834,838, 337 Ill. 200, 169 N. E. 22.)
“Power conferred upon municipalities to regulate the use of the streets by motor vehicles does not include power to prohibit the use of the streets by them” (Chicago Motor Coach Company et al. v. Chicago, hn. 6, 66 A.L.R. 834, 337 Ill. 200, 169 N. E. 22.) “regulation is inconsistent with prohibition or exclusion.” (66 A.L.R. 838).
The public have the right to adopt any method upon of travel upon the public streets not calculated to render the streets unsafe to others. Chicago v. Collins, 49 L.R.A. 408, 175 Ill. 445, 51 N. E. 907. (L.R.A. Digest 1888-1918, Highways and Streets, 70.)
Highways are constructed for ordinary use, in an ordinary manner, and not for an unusual or extraordinary use either by crossing at great speed or by the passing of a very large and unusual weight. Com. V. Allen, 16 L.R.A. 148, 148 Pa. 358, 23 Atl. 1115. (L.R.A. Digest 1888-1918, Highways and Streets, 70.)
A citizen has an absolute right to choose his mode of conveyance provided he observes all of the “laws of the road.” Swift v. Topeka, 8 L.R.A. 772, 43 Kan. 671, 23 Pac. 1075. (L.R.A. Digest 1888-1918, Highways and Streets, 70.)
A distinction exists between streets and avenues of a park system to which a city has acquired title for such purposes and a street which has been simply designated a parkway by a park board with the consent of the city council; as, in the one case, the board has complete jurisdiction and power, not only to regulate, but to prohibit, general traffic; while in the other case it has no power to prohibit general traffic, but only power to regulate such traffic within a reasonable limit. State v. Rohart, 54 L.R.A. 947, 83 Minn. 257, 86 N. W. 93, 333. (L.R.A. Digest 1888-1918, Highways and Streets, 70.)
The legislature in the exercise of its police power, and general right to regulate the use of the highways of the state, may restrict, and even forbid, the use of such vehicles on the highways as are in fact dangerous to the general travelling public. Twilley v. Perkins, 19 L.R.A. 632, 77 Md. 252, 26 Atl. 286. (L.R.A. Digest 1888-1918, Highways and Streets, 70.)
A city has the right in the exercise of its police power, to enact such reasonable regulations for the safety of the public as are not in conflict with general laws, to regulate the use of vehicles on its public streets. While in doing this it may not arbitrarily discriminateagainst any species of vehicle, it may classify vehicles for the purpose of regulation in such a manner as is reasonable, in view of the character and manner of use and the danger to the public to be apprehended, and such classification must be upheld by the courts unless, it is manifestly unreasonable or arbitrary. Ex parte Cardinal, L.R.A.1915F, 850, 170 Cal. 519, 150 Pac. 348. (L.R.A. Digest 1888-1918, Highways and Streets, 70.)
Historic decisions: Right To Travel, see http://supct.law.cornell.edu/supct/cases/topic.htm.
“Although not explicitly mentioned in the Federal Constitution, the right freely to travel from one state to another, and to use the highways and other instrumentalities of the interstate commerce in doing so, is a basic right under the constitution.” United States v Guest, 383 US 745, 86 S Ct 1170, 16 L Ed 2d 239. [5 U.S.Dig, Constitutional Law, ¤ 101.5, Right of interstate or international travel.]
“The nature of the Federal Union and constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of the United States uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” Shapiro v Thompson, 394 US 618, 89 S Ct 1322, 22 L Ed 2d 600. [5 U.S.Dig, Constitutional Law, ¤ 101.5, Right of interstate or international travel.]
“The right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference.” Griffen v Breckenridge, 403 US 88, 91 S Ct 1790, 29 L Ed 2d 338. [5 U.S.Dig, Constitutional Law, ¤ 101.5, Right of interstate or international travel.]
“Freedom to travel throughout the United States, which includes the freedom to enter and abide in any state in the Union, is a basic right under the Constitution.” Dunn v Blumstein, 405 US 330, 92 S Ct 995, 31 L Ed 2d 274. [5 U.S.Dig, Constitutional Law, ¤ 101.5, Right of interstate or international travel.]
“Whereas the Constitution inhibits every state’s power to restrict travel across its own borders, Congress has power to exercise such type of control over travel across the borders of the United States.” Mathews v Diaz, 425 US 67, 96 S Ct 1883, 48 L Ed 2d 478. [5 U.S.Dig, Constitutional Law, ¤ 101.5, Right of interstate or international travel.]
“The right to travel is an unconditional personal right whose exercise may not be conditioned.” Dunn v Blumstein, 405 US 330, 92 S Ct 995, 31 L Ed 2d 274. [5 U.S.Dig, Constitutional Law, ¤ 101.5, Right of interstate or international travel.]
“The constitutional right of interstate travel is virtually unqualified.” Califano v Torres, 435 US 1, 98 S Ct 906, 55 L Ed 2d 65. [5 U.S.Dig, Constitutional Law, ¤ 101.5, Right of interstate or international travel.]
“The constitutionally protected right to travel within the United States does not mean that areas ravaged by flood, fire, or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area or the nation as a whole; the same is true of international travel.” Zemel v Rusk, 381 US 1, 85 S Ct 1271, 14 L Ed 2d 179. [5 U.S.Dig, Constitutional Law, ¤ 528.2 Right of travel.]
“But there are certain inherent rights which men do not surrender by entering into organized society, and of which they cannot be arbitrarily deprived by the state. They are briefly summarized in general terms in section 1 of the Constitution of this state as follows: ‘That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.’ They embrace all businesses that are legitimate in character, and are of such nature as to indicate that they are inherent in the individual claiming them.” (Taylor v. Smith, 140 Va. 217, 124 S. E. 259, at 263.)
“The right of a citizen to travel upon the highway and 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 stage coach or omnibus. The former is the usual and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual, and extraordinary. As to the former, the extent of legislative power is that of regulation; but, as to the latter, its power is broader. The right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature. This distinction, elementary and fundamental in character, is recognized by all the authorities:
“A distinction must be made between the general use, which all of the public are permitted to make of the street for ordinary purposes, and the special and peculiar use, which is made by classes of persons in the pursuit of their occupation or business, such as hackmen, drivers of express wagons, omnibusses, etc. Tiedeman on Municipal Corporations, ¤ 299.
“The rule must be considered settled that no person can acquire the right to make a special or exceptional use of a public highway, not common to all citizens of the state, except by grant from the sovereign power.” Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242; McQuillen, Municipal Corporations, 1620.” (Ex parte Dickey, 85 S. E. 781, 782.)
“Laws penalize right to travel if they deny person necessity of life, such as free medical care.” (Pottinger v. City of Miami, 810 F.Supp. 1551 (1992)) [6 Fla. D 2d-393, Const. Law]
“Compelling state interest” is not satisfied despite existence of substantial and desirable government interests. See William v. Rhodes, 393 U.S. 23, 31-34, 89 S.Ct. 5, 10-12, 21 L.Ed.2d 24 (1968). [From Pottinger v. Miami, at 1581]
Right of citizens to be free to travel may be restricted only for a compelling state interest. (Hall v. King, 266 So.2d 33) [6 Fla. D 2d-393, Const. Law]
“The department of transportation is directed to conduct an investigation and to determine, as provided under the applicable statute, safe speed limits on the state highway and the state park road system. And the department may, as provided under applicable statutes, limit the use of state highways and state park road systems as to the weight, load and size of vehicles, and enforce such limitations.” “The state road board is directed to prescribe, for municipal connecting roads, regulations for traffic thereon, including traffic signal lighting, minimum and maximum speed, and parking. Such regulations, when made and published or posted in the manner prescribed supercede all regulation relating to traffic made by the city or town. They also supercede any laws regulating traffic on such roads. They have the force and effect of law, their violation constituting a misdemeanor. And they are enforced by all law enforcement officers. (FS 335.05(5)” [Fla Jur 2d, Highways, sec. 126]
FS 355.05 was repealed in 1984, by Laws 1984, c. 84-309, s. 36.
There appears to have been no enactment to replace 335.05. If we rely on the authority of Florida Juris Prudence 2nd [that the authors would have noted a law and statute which replaced the repealed 335.05(5) had there been one], we can reasonably conclude there is no such new enactment and that enforcement of traffic laws comes only through the authority granted with the driver license.
Also, the provision that traffic signs should “have the force and effect of law, their violation constituting a misdemeanor”, was enacted by ch. 29965, titled “AN ACT to clarify and codify the Laws of the State relating to roads; * * *”. It appears to me this act could have violated the requirement that amendments to laws cannot broaden the scope of the legislation to include previously excluded subjects. Also, as it appears it only applied to those under the “Laws of the State”, as opposed to the “Laws of Florida”; it seems to have only applied to government employees.
“Municipalities may lawfully regulate the conduct of those keeping them open and available for movement of people and property, so long as legislation to this end does not abidge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature.” Schneider v Irvington, 308 US 147, 60 S Ct 146, 84 L Ed 155. [8 U.S.Rep., Highways ¤ 13.]
“Where a restriction of the use of highways is designed to promote the public convenience and the interest of all, it cannot be disregarded by the attempted exercise of some civil right, which in other circumstances would be entitled to protection under the Constitution.” Cox v New Hampshire, 312 US 569, 61 S Ct 762, 133 ALR 1396, 85 L Ed 1049. [8 U.S.Rep., Highways ¤ 13.]
“Although a statute may be enacted which prevents serious interference with normal usage of streets and parks, licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places are to be condemned.” Shuttlesworth v Birmingham, 394 US 147, 89 S Ct 935, 22 L Ed 2d 162. [8 U.S.Rep., Highways ¤ 13.]
“The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order, but it must not be abridged or denied.” Shuttlesworth v Birmingham, 394 US 147, 89 S Ct 935, 22 L Ed 2d 162. [8 U.S.Rep., Highways ¤ 13.]
“Vehicles and pedestrians have equal rights in the use of public streets, and each must exercise reasonable care to prevent collisions.” (Brown v. City of Wilmington, hn. 1, 4 Boyce 492, 90 Atl. 44).
“A distinction must be observed between the regulation of an activity which may be engaged in as a matter of right, and one carried on by government sufferance or permission, since in the latter case the power to exclude altogether generally includes the lesser power to impose conditions, and may justify a degree of regulation not admissible in the former.” Packard v. Banton, 264 U. S. 140, 44 Sup.Ct. 257
“It is a rule of law that one driving or operating a vehicle is bound to consider the lack of capacity of those in his way to care for their safety, when such incapacity is known or should have been known by him, and the law exacts greater care toward those who are unable to care for themselves, as children, blind persons and in fact drunken persons, when such incapacity is known or should have been known by the one driving or operating the vehicle.” Brown v. Mayor, etc. of City of Wilmington, 4 Boyce 492, 90 Atl. 44, at 46.
“A pedestrian and the operator of an automobile have each the right to pass and repass on city streets, but neither may do so negligently exercise the right as to injure the other, and each must regulate his own use of the street by observing ordinary care to avoid being injured or inflicting injury on the other.” (Harker v. Gruhul, hn. 4, 111 N. E. 457, 62 Ind App. 177.)
“The general princples governing interpretation and construction of police regulations generally are applicable to regulations governing use of highways.” State ex rel Parker v. Frick, hn. 4, 7 So.2d 152 (March 24, 1942, S. C. Fla.)
“The right of occupancy of the street by the public is a mere easement or right of passage.” (State ex rel. Harkow v. McCarthy (1936), 171 So. 314, 316 quoting Lutterloh v. Mayor, etc. of Cedar Keys, 15 Fla. 306, 308)
“It is said that a common-law dedication does not operate as a grant but by way of estoppel in pais. A dedication is regarded not as a transferring a right, but as operating to preclude the owner from resuming his right of private property or from any use inconsistent with the public use. (23 Am Jur 2d, Dedication, s. 56) Under a common-law dedication, the fee does not pass from the grantor, as the public acquires only a right of easement in trust, so long as the dedicated land is used for the purposes of the dedication. (Florida State Turnpike Authority v Anhoco Corp. (1958), Fla App D3 107 So 2d 51)” (Fla Jur 2d, Dedication, s. 24)
“The right to use a special facility * * * is not an inherent right in the public”. “[T]he right of the citizens to travel the public highways (when not exercised as a means of conducting private business thereon) is subject only to the police power and of the power of taxation, and is an inherent right which, in its very essence, is quite a difference from the right to use a special facility * * * erected under a franchise.” (Day v. City of St. Augustine (1932), 139 So. 880, 882)) [***]
“There are certain methods by which the public acquires the right to pass and repass over a way thus establishing a highway. Those methods are by prescription or long user as such; by statute or statutory proceedings in the exercise of the right of eminent domain; or by dedication to the public by the owner of the soil with the sanction of the public authorities.” * * * “The mere expenditure of public money upon the road under the agreement is not in itself sufficient to establish the highway.” (Couture v. Dade County (1927), 112 So. 75, 79) [***]
Extensive discussion of the rights of the public in public streets. McHarge v. Newcomer, 9 L.R.A.(N.S.) 298, 117 Tenn. 595, 100 S. W. 700. (L.R.A. Digest 1888-1918, Highways and Streets, 28.)
There is no substantial difference between streets in which legal title is in private individuals and those in which it is in the public as to the rights of the public therein. Montgomery v. Santa Ana & W. R. Co. 25 L.R.A. 654, 104 Cal. 186, 37 Pac. 786. (L.R.A. Digest 1888-1918, Highways and Streets, 28.)
The rights of the public in a street are precisely the same, whether the fee to the land is in the public or in the abutting landowner. Kellogg v. Cincinnati Traction Co. 23 L.R.A.(N.S.) 158, 80 Ohio 331, 88 N.E. 882. (L.R.A. Digest 1888-1918, Highways and Streets, 28.)
The public holds the title to streets and alleys in trust for the use to which they are dedicated when the fee simple vests in the public on the platting of an addition to a city. Jaynes v. Omaha Street R. Co., 39 L.R.A. 751, 53 Neb. 631, 74 N. W. 67. (L.R.A. Digest 1888-1918, Highways and Streets, 28.)
The rights of a municipality to the ownership of the fee of the streets are subject to the paramount right of the general public to the use of the streets and their control and improvement as the public interests may require in the discretion of the local municipal authorities. Chicago & N. W. R. Co. v. West Chicago Park, 25 L.R.A. 300, 151 Ill. 204, 37 N. E. 1079. (L.R.A. Digest 1888-1918, Highways and Streets, 28.)
A city holds its streets in trust for the benefit of the public, and cannot authorize their use for the sole and exclusive benefit of private individuals or corporations, to the detriment of the superior right of the public. People ex rel. Mather v. Marshall Field & Co., L.R.A. 1915F, 937, 266 Ill. 609, 107 N. E. 864. (L.R.A. Digest 1888-1918, Highways and Streets, 28.)
A municipality may determine the extent and manner of the public use of streets and may regulate the use by owners of the soil; but it cannot arbitrarily take away the property rights of such owners. Colegrove Water Co. v. Hollywood, 13 L.R.A. (N.S.) 904, 151 Cal. 425, 90 Pac. 1053. (L.R.A. Digest 1888-1918, Highways and Streets, 28.)
“The coporate authorities of a town have no right to appropriate the public streets to any other uses than that of travel or right of way to which they were dedicated and the convenience of the whole public; and they cannot lawfully obstruct the streets with public or private buildings; and any person whose property is especially injured thereby may have the aid of the courts of equity to restrain such improper appropriation.” Lutterloh vs. Mayor, &c, of Cedar Key, 15 Fla., 306. (Quoted in Garnett vs. The Jacksonville … River Railway Co., 20 Fla. 889, 890.)
FS 95.361 Roads presumed dedicated.–
(1) When a road, constructed by a county, a municipality, or the Department of Transportation, has been maintained or repaired continuously and uninterruptedly for 4 years by the county, municipality, or the Department of Transportation, jointly or severally, the road shall be deemed to be dedicated to the public to the extent in width that has been actually maintained for the prescribed period, whether or not the road has been formally established as a public highway. [¦]
FS 335.01 Designation and systemization of public roads.–
(1) All roads which are open and available for use by the public and dedicated to the public use, according to law or by prescription, are hereby declared to be, and are established as, public roads.
(2) Public roads shall be divided into four systems:
(a) The State Highway System;
(b) The State Park Road System;
(c) The county road system; and
(d) The city street system.
“National System of Interstate and Defense Highways”
The interstate highways are for the Department of Defense and are limited access highways.
Parkway: The term “parkway” as used in chapter 2 of this title, means a parkway authorized by an Act of Congress on lands to which title is vested in the United States. (23 USC 101(a))
Public road: The term “public road” means any road or street under the jurisdiction of and maintained by a public authority and open to public travel. (23 USC 101(a))
Note that section (b), following, says “It is hereby declared to be in the national interest to accelerate the construction of the Federal-aid highway systems, including The Dwight D. Eisenhower System of Interstate and Defense Highways, since many of such highways, or portions thereof, are in fact inadequate to meet the needs of local and interstate commerce, for the national and civil defense.” [Emphasis added.] Nowhere does the word “public” appear.
23 USC § 103. Federal-aid systems
- In General. – For purposes of this title, the Federal-aid systems are the Interstate System and the National Highway System.
- National Highway System. –
- Purpose. – The purpose of the National Highway System is to provide an interconnected system of principal arterial routes which will serve major population centers, international border crossings, ports, airports, public transportation facilities, and other intermodal transportation facilities and other major travel destinations; meet national defense requirements; and serve interstate and interregional travel. [Emphasis added.]
Nothing is said about public use. I suspect “travel” means that afforded by common carrier rather than private travel.
“State’s primary road system was not designed to create separate road systems within each county for the sole use, enjoyment and benefit of county’s residnets; rather, it was the intent of the statutes to establish a safe and efficient statewide system of primary roads for the use, benefit and enjoyment of all the state’s citizens, wherever they reside and wherever they may travel with the state. Sattler v. Askew, 295 So.2d 289 (1974)” (FSA 335.04, nt 3.)
“Chapter 316 [Florida Statutes] is not applicable to Florida turnpike which is subject to control by rules and regulations promulgated by department of transportation under provisions now contained in this section, and all prosecutions for violations of such rules and regulations governing traffic on the turnpike are commenced by use of uniform traffic complaint and pursued as directed by Chapter 316. Op.Atty.Gen., 072-173, May 19, 1972.” (FSA 338.239, nt. 2.)
“The public, by the establishment of a street, acquires the right to use it for public purposes by every appropriate means, whether or not those means are customary, or were even known at the time the street was established, and the right to utilize changed methods and new vehicles of transportation in the handling of local freight and local passengers includes any appropriate means of transportation which may be used for the public convenience.” McClintock v. Richmond Brick Corp. 152 Va 1, 145 SE 425, 61 ALR 1033. [25 Am Jur, Highways, § 165]
“One may transport his goods over the highway in wagons, automobiles, or other vehicles, loaded thereon or therein as he may deem best, provided that in so transporting them he uses the care that a prudent man would use–care commensurate with the dangers created by his undertaking.” Ryder v. Hayward (Sturtevant v. Hayward) 98 Vt 106, 126 A 491, 36 ALR 453. [25 Am Jur, Highways, § 165]
“The right to drive an automobile along a public highway is not superior to that to drive cows along the highway.” Bombard v. Newton, 94 Vt 354, 111 A 510, 11 ALR 1402. [25 Am Jur, Highways, § 165]
“Primarily the vehicular highways of the state are designed for the general public transportation and not for conducting thereon the business of transporting persons or property for compensation.” (Florida Motor Lines, Inc. v. State Railroad Commission, 132 So. 851, hn. 1)
“The statute regulating motor vehicles carriers for hire was designed merely to regulate those who operate motor vehicles for compensation and was not intended to apply to persons, firms, or corporations engaged in transporting their own goods over the public highways as a mere incident to their mercantile or private business. Acts 1931, c. 14764.” State ex rel. Fohl v. Karel, Sherrif, 180 So. 3, hn. 6
“Under statute providing for regulation of motor vehicle carriers, basis of regulation is not the character or tenure of ownership of vehicle, but the peculiar nature of the business conducted upon and over the public highways. Acts 1931, c. 14764.” State ex rel. Fohl v. Karel, Sherrif, 180 So. 3, hn. 9
“The right of a citizen to travel over the public highway and to transport his property in the ordinary course of life and business differs radically from the use of the public highway for profit. The latter is not an inherent right. It is a privilege which can be granted or withheld by the state, or, when granted, can be subjected to regulation and control by the state.” Seaboard Air Line Ry. Co. et al. v. Wells et al., Railroad Comrs 130 So. 587, hn 1 [Fla Jur 2d, Highways. S. 121] Therefore, a business conducted primarily on the public highways, not merely incidental use, is regulated.
“The state may permit, limit, and regulate the use of its public roads for transportation thereon for hire, whether intra or inter state, provided no unjust discrimination is practiced and no undue burden or interference is put on interstate commerce, and federal instrumentalities are not interfered with.” (Florida Motor Lines, Inc. v. State Railroad Commission, 132 So. 851, hn. 3)
“We are of the opinion that the plaintiff was not liable to this tax [internal revenue, 3% duty on gross], because he did not carry on or do an express business, within the meaning of the statute. * * * He did not run regular trips or over regular routes or ferries. * * * The words ‘express business,’ in the statute, must have the meaning given them in the common acceptation. An ‘express business’ involves the idea of regularity, as to route or time or both.” (Retzer v. Wood, Collector of Internal Revenue (1883) 109 U.S. 900, 901.)
*”…For while a citizen has the right to travel upon the public highways and to transport his property thereon, that right does not extend to the use of the highways…as a place for private gain. For the latter purpose, no person has a vested right to use the highways of this state, but it is a privilege…which the (state) may grant or withhold at its discretion…” State v. Johnson, 245 P 1073.
“The use of highways and streets for gain is special and extraordinary, and generally may be prohibited or conditioned, as the legislature deems proper.” Packard v Banton, 264 US 140, 44 S Ct 257, 68 L Ed 596; Stephenson v Binford, 287 US 251, 53 S Ct 181, 87 ALR 721, 77 L Ed 288. [8 U.S.Rep., Highways ¤ 14.]
“The state has power to prohibit the use of public highways in proper cases.” Frost v Railroad Commission of California, 271 US 583, 46 S Ct 605, 47 ALR 457, 70 L Ed 1101. [8 U.S.Rep., Highways ¤ 14.]
The privilege of using a public street is always to be regulated so as to protect the equal rights of others. Des Moines v. Keller, 57 L.R.A. 243, 116 Iowa 648, 88 N. W. 827. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
No person can acquire a right to make a special or exceptional use of a public highway, not common to all the citizens of the state, except by grant from the sovereign power. Dickey v. Davis, L.R.A.1915F, 840, 76 W. Va. 576, 85 S. E. 781. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
“No person has an inherent or natural right, however, to make the streets or highways his place of business. Such a use is generally characterized as an extraordinary use.” “Even the legislature has no power to deny a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience.” (Chicago Motor Coach Company et al. v. Chicago, 66 A.L.R. 834,842, 337 Ill. 200, 169 N. E. 22.)
“The use of the streets for purely private gain may not be given, even by the legislature, unless there be also in such use a public service.” “Even the legislature has no power to deny a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience.” (Chicago Motor Coach Company et al. v. Chicago, 66 A.L.R. 834,843, 337 Ill. 200, 169 N. E. 22.)
Municipalities hold the portions of the highways within their limits for public uses as agencies of the state, for the promotion of local comfort, convenience, and prosperity. “[I]t would be inconsistent with sovereign legislative power and control over the highways to infer from this agency legislative purpose to confer upon local municipalities power to deny any right of the public in them. Therefore such authority does not exist, unless it has been expressly or impliedly conferred.” (Ex parte Dickey, 85 S. E. 781, at 784.)
Using the paved roads as part of one’s business makes one subject to registration, from Harper et al. v. England (1936), 168 So. 403 at (pg. 406:)
“It also appears to be well settled that he who would shelter himself under an exemption clause must clearly show that he is entitled under the law to exemption, and the law is to be strictly construed as against the person claiming the exemption and in favor of the public. 17 R.C.L. 522; Northwest Auto Co. v. Hurlburt, 104 Or. 398, 207 P. 161; Wallace v. Board of Examination, 47 Or. 584, 86 P. 365. It is also held that under a registration law, such as that we have under consideration, the collection of a fee for registration is the rule and exemption is the exception to the rule. Therefore, he who claims the exemption bears the burden of establishing his right to it. 1 Cooley on Taxation (3d Ed.) 456; Camas Stage Co. v. Kozer, 104 Or. 600, 209 P. 95, 25 A.L.R. 27.
“So it is that the result in this case must be determined by answering the question whether or not the appellee is shown to come within the exception and, therefore, not required to register and pay the license tax for operating his automobiles on the public highways of the state of Florida. The exception under the terms of section 3 (17), chapter 16085, does not apply to one who engages in any trade, profession, or occupation in this state and it is contended by appellant that the exception contained in section 3 (17), supra, does not apply to the appellee because the appellant says that the business of cutting logs in Alabama and selling them and, in the furtherance of the sale, transporting them over the paved highways of Florida to deliver them to purchasers in Florida is exercising the privilege of using the roads of Florida in carrying on the business of the appellee.” —- (Harper et al. v. England (1936), 168 So. 403)
“The right of a citizen to travel and to transport his property over the public highway in the ordinary course of life and business differs radically from the use of the public highway to conduct a private business for profit. The latter is not an inherent right, but a privilege which may be granted or withheld by the state, or, when granted, may be subjected to regulation and control. (United States.–Ashbury Truck Co. v. Railroad commission (D. C.) 52 F. (2d) 263. Florida.–State ex rel. Pennington v. Quigg, 94 Fla. 1056, 114 So. 859; Seaboard Air Lines R. Co. v. Wells, 100 Fla. 1027, 130 So. 587. Illinois.–People ex rel. Johns v. Thompson, 341 Ill. 166, 173 N. E. 137. Iowa.–State ex rel. Railroad Comrs. V. Martin, 210 Iowa 207, 230 N. W. 540. Kentucky.–Slusher v. Safety Coach Transit Co. 229 Ky. 731, 66 A.L.R. 1378, 17 S. W. (2d) 1012. Massachusetts.–Morley v. Wilson, 261 Mass. 269, 159 N. E. 41, writ of certiorari denied in 276 U. S. 625, 72 L. ed. 738, 48 S. Ct. 320. Montana.–Willis v. Buck, 81 Mont. 472, 263 Pac. 982. New York.–Harris v. Equitable Surety Co., 131 Misc. 85, 226 N. Y. Supp. 263; New York State R. Co. v. Monroe Cab Corp., 134 Misc. 664, 236 N. Y. Supp. 6; Farrel v. Syracuse, 137 Misc. 472, 242 N. Y. Supp. 316 (business of public hackman affects public interest and is subject to regulation.) Texas.–Texas Motor Coaches v. Railroad Commission (Tex. Civ. App.) 41 S. W. (2d) 1074.)” [Babbits Motor Vehicle Law, 4th edition (1933), ¤ 197.]
“The operation of motor vehiclular carriers for profit on the public highways is a special use of them which tends to impede ordinary traffic and requires additional construction, maintenance, and repairs of the highways at public expense; thus furnishing additional reason for their regulation and control.” (Seaboard Air Line Ry. Co. v. Wells, 130 So. 587.)
“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 may prohibit or condition as it sees fit.” (Stephenson v. Binford, 287 U.S. 251, 77 L. Ed. 288.)
“A “franchise” is a special privilege conferred by the government on an individual or individuals and which does not belong to citizens of the county generally, of common right. State ex rel. Pacific Telephone & Telegraph Co. v. Department of Public Service, 142 P.2d 498, 535, 19 Wash.2d 200.” [Words and Phrases, Franchise.]
“”Franchises” are special privileges which are conferred by the government upon individuals and which do not belong to the citizens of country generally, of common right. People v. Willert, 93 P.2d 872, 878, 879, 37 Cal.App.2d Supp. 729.” [Words and Phrases, Franchise.]
“A “franchise” is the privilege of doing that which does not belong to the citizens generally by common right, and as to streets, it is the right to do something in the public highway which except for the grant would be a trespass. Utah Light & Traction Co. v. Public Service Commission, 118 P.2d 683, 689, 101 Utah 99.” [Words and Phrases, Franchise.]
“That company seeking bus franchise in New York City requested a “franchise,” and in its contract received a “terminable permit,” did not render petition invalid, since a terminable permit is a particular type of “franchise.” New York City Charter 1936, § 361 et seq. Loos v. City of New York, 9 N.Y.S.2d 760, 768, 170 Misc. 14, 104.” [Words and Phrases, Franchise.]
“Whether an instrument, ordinance or contract amounts to a “franchise” depends largely on manner of its performance in compliance with its terms. City of Wichita Falls v. Kemp Hotel Operating Co., Rex.Civ.App., 162 S.W.2d 150, 153, 154.” [Words and Phrases, Franchise.]
The Florida “driver license” is really a “certificate of public convenience and necessity” given as a privilege to carriers. State ex rel. Kelly v. Ramsey tells us that the people of Florida regulate and protect the use of highways through the use of certificates of public convenience and necessity. Diamond Cab Owners Ass’n v. Florida Railroad & Public Utilities Commission tells us that drivers are put on equal footing with the managers/operators of the carrier. State ex rel. Kohl v. Karel tells us that the Florida law regulating carriers, which requires the certificate of public convenience and necessity, does not apply to those who are not properly classified as carriers. And United States v. Carter tells us that the federal government is free to negotiate rates with common carriers for the movement of its property and that of military personnel (read: carrying property for free).
Another important case, I believe, is Travis v. Fry, where the Florida Supreme Court concludes that it does not matter how much one is paid per se to transport property (or if at all) if the transportation (with a large truck) was essential to the contract.
“The people of Florida have the right to make such laws as are necessary to regulate and protect the use of the public highways of Florida by motor vechicles operating for hire both as private contract carrier and as common carriers. It cannot be overlooked that the public highways of florida have been constructed by the people and represent heavy expenditures of money for the initial cost as well as their maintenance and general upkeep. It logically follows that the nature of the business done on the highways by carriers must be controlled or regulated so that the same may be protected for the enjoyment and use of the people of Florida who made their existence possible. Again in the case of Riley v. Lawson, supra, text page 527, 143 So. 622, citing the case of Southern Motorways, Inc. v. Perry, D.C., 39 F.2d 145, the Court held:
“* * * In that case it was held, and with that rule we agree, that when the public highways are made the place of doing business for compensation, the right to regulate the use of the highways by vehicles engaged in such purpose, is primarily to be exercised in the interest of the safety and convenience of the other users of the highway themselves, and for the conservation of the public highways. We are further agreed that the last class of regulation arises indepedent of the nature of the business done by the vehciles regulated.””
” (State ex rel. Kelley v. Ramsey (Fla. 1938), hn. 1/p. 887, 181 So. 885.)
“A taxicab operator was required to obtain from the State Railroad Commission a certificate of public convenience and necessity in order to transport in his cab over the public highways a group of college girls to the Easter holiday house parties at a university located in another city, notwithstanding that the operator had obtained a license to operate cab in the city from which he started. Acts 1931, c. 14764, s. 30.” (State ex rel. Kelley v. Ramsey (Fla. 1938), hn. 2, 181 So. 885.)
“The Florida State Railroad and Public Utilities Commission does not have power to fix intrastate rates to be charged by common carriers for the transportation of property owned by the United States government and for the transportation of household effects of military personnel between points within the state, and the application of Florida state statutes as to rates of carriage of such goods is precluded by the supremacy clause of the federal Constitution.” UNITED STATES of America v. CARTER, hn. 3, 121 So.2d 433 (June 17, 1960, S. C. Fla.)
“Statutory requirement of certificate of public convenience and necessity for exclusively interstate motor carrier operation constitutes mere requirement for registration (Acts 1931, c. 14764; Motor Carrier Act 1935, 49 U.S.C.A. s. 301 et seq.; Const.U.S. art. 1, s. 8, cl. 3).” (State ex rel. R. C. Motor Lines v. Florida Railroad Commission (Fla. 1936), hn. 1, 166 So. 840.)
“Vestiture of jurisdiction in Interstate Commerce Commission of exclusive jurisdiction to determine application for certificate of public convenience and necessity to engage in exclusively interstate motor carriage operation did not supercede provision of state statute requiring interstate motor carriers to register with State Railroad Commission and to pay to state its just mileage taxes (Acts 1931, c. 14764; Motor Carrier Act 1935, 49 U.S.C.A. s. 301 et seq.; Const.U.S. art. 1, s. 8, cl. 3).” (State ex rel. R. C. Motor Lines v. Florida Railroad Commission (Fla. 1936), hn. 2, 166 So. 840.)
“Applicant exclusively engaged in interstate commerce operation by private contract motor carrier held entitled to certificate of registration (Acts 1931, c. 14764; Motor Carrier Act 1935, 49 U.S.C.A. s. 301 et seq.; Const.U.S. art. 1, s. 8, cl. 3).” (State ex rel. R. C. Motor Lines v. Florida Railroad Commission (Fla. 1936), hn. 3, 166 So. 840.)
From Words & Phrases (Judicially Defined) – Certificate of Public Convenience and Necessity
A “certificate of public convenience and necessity for the operation of motor vehicles for hire intrastate,” is in the nature of a permit or license and is not property in any legal or constitutional sense, and is personal in its character and not transferable, and does not pass by succession. Application of Neylon, 38 N.W.2d 552, 556, 151 Neb. 587.
A “certificate of public convenience and necessity” is in the nature of a personal privilege or license, which may be amended or revoke by the power authorized to issue it, and the holder does not acquire a property right, and the number of certificates to be granted, over a particular route, may be limited so as to occasion as little inconvenience as possible to persons using the route and to insure the holder certain immunities from competition. State ex rel. Hutton v. City of Baton Rouge, 47 So.2d 665, 668, 217 La. 857.
“Certificate of public convenience and necessity” is mere license or permit, granted by Railroad Commission, to use state highways for stated purposes after determining not only whether additional commerce over them is needed to serve public convenience, but whether structure and preservation thereof permits and public safety authorizes such use of them. Railroad Commission of Texas v. Southwestern Greyhound Lines, Tex.Civ.App., 92 S.W.2d 296, 301, 302.
The Texas State Commission may prevent or permit operation of interstate motor freight carrier between named points on particular highways within state on consideration of the safety of the highway and of the public traveling thereon, but a permit granted on such considerations is not a “certificate of public convenience and necessity” which, based upon considerations of traffic needs, the State Commission is primarily charged with issuing or withholding for intrastate operation in accordance with such needs. Gulf Coast Motor Freight Lines v. U. S., D.C.Tex., 35 F.Supp. 136, 137.
“Statute pertaining to issuance of licenses for the operation of taxicab, and referring in part to “every such person owning, leasing, using or exercising dominion over motor vehicles operated in the transportation of persons or property over public highways for hire”, by use of the disjunctive, places the control, operation, or management of such motor vehicles on equal footing with the ownership thereof, and plainly shows the purpose of act was to regulate and control the person or persons, controlling, operating, managing, using or exercising dominion over such motor vehicles. F.S.A. ss. 323.01(7)(c), 323.05.” (Diamond Cab Owners Ass’n v. Florida Railroad & Public Utilities Commission (Fla. 1953), hn. 1, 66 So.2d 593.)
Compare: FS 322.01
(15) “Drive” means to operate or be in actual physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic.
(16) “Driver’s license” means a certificate which, subject to all other requirements of law, authorizes an individual to drive a motor vehicle. [Emphasis added.]
“Where a motor vehicle is being operated in hauling for compensation as defined by chapter 14764, Acts of 1931, not devoted “exclusively” to an operation exempted by section 30 of said chapter 14764, Acts 1931, from the requirement of a certificate or permit from the Railroad Commission to conduct such business or haulage for compensation, it is subject to the requirements of said act, and, absent a certificate or permit from the Railroad Commission, a prosecution will lie under said act for carrying on any of the operations therein described for which a permit or certificate from the Railroad Commission is required.” (State ex rel Coats v. Whitaker (Fla. 1936), 171 So. 521, 522.)
“Under section 30 of chapter 14764, Acts 1931, casual or irregular trips by motor vehicle (even from compensation) where the vehciles involved are not engaged in the business of for hire carriage, and are permitted by law to operate under a private license (although compensation is received) in so far as the motor vehicle license law is concerned, do not subject the owner or operator of such vehicles to the requirements of permits or certificates as imposed by chapter 14764, supra, for ordinary contract carriers. But said section 30 of chapter 14764, Acts 1931, does not excuse violations of the terms of said chapter 14764, supra, merely because the violations are casual and irregular in their occurance.” (State ex rel Coats v. Whitaker (Fla. 1936), 171 So. 521, 522.)
“If automobile trip was joint adventure between automobile owner and passengers as to which it was agreed that payments by passengers should be contribution to expense of trip, transaction would not come within statute requiring certificate of public convenience and necessity. Acts 1931, c. 14764).” (Coleman v. Achim (Fla. 1934), hn. 1, 153 so. 96.)
“Automobile owner holding himself out to individuals. or public from which individuals were gathered, as being ready, willing, and able to transport individuals in automobile for fixed fee, would be “private contract carrier,” within statute requiring certificate of public convenience and necessity (Acts 1931, c. 14764).” (Coleman v. Achim (Fla. 1934), 1hn. 2, 53 so. 96.)
“An application of the principle of law controlling this suit to the admitted statement of facts [petitioner as employee was hauling truck and trailer full of produce back to Pennsylvania for sale at store in Pennsylvania on infrequent trip, truck owned in common with other business] clearly shows that the affidavit and warrant under which petitioner is held fail to allege a criminal offense, and for this reason the petitioner is discharged from custody, and it is so ordered.” (State ex rel Fohl v. Karel, 180 So. 3 at 6.) [Explanation and emphasis added.]
“Evidently chapter 14764 [Laws of Florida] was aimed merely at those who operate vehicles for compensation, and was not intended to apply to persons, firms, or corporations engaged in transporting their own goods over the public highways as a mere incident to their merchantile or other private buisness. The cases of State v. Quigg, 94 Fla. 1056, 1057, 114 So. 859; Florida Motor Lines v. State Railroad Commission, 101 Fla. 1018, 132 So. 851, and State v. York, 90 Fla. 625, 106 So. 418, tend to support this position.” (State ex rel Fohl v. Karel, 180 So. 3 at 8.)
“”One who transports merely his own freight over the highway is not a carrier, private or otherwise. He may be a farmer or a manufacturer or a merchant or what not, but the business in which he is engaged is not the business of transportation. He is not a carrier unless he is engaged the business of transportation pf the persons or property for compensation. One, who transports merely his own goods, is of necessity engaged in some business other than transportation, and the transportation of goods is no more than an incident to such business. So, also, one, who transports the goods of another as a servant or agent of such other, is not engaged i the business of transportation, but in so doing is engaged in the business of his master or principal, whatever that business may be.” Holmes v. Railroad Commission, 197 Cal. 627, 242 P. 486, 490.” (State ex rel Fohl v. Karel (Fla. 1937), 180 So. 3 at 8.)
“The business of a carrier by motor vehicle, whether as a common carrier or as a contract carrier, is affected with a public interest and therefore within the scope of the act and the jurisdiction of rge Railroad Commission. Georgia Public service Commission v. Saye & Davis Transformer Company, 170 Ga. 873, 154 S.E. 439; Seaboard Air Line Railway Co. v. Wells, 100 Fla. 1027, 130 So. 587; Riley v. Lawson, 106 Fla. 521, 143 So. 619.” (State ex rel Fohl v. Karel (Fla. 1937), 180 So. 3 at 8.)
“The joint owners were merely using their own truck to transport their own goods, at their own expense, and as a mere incident to the conduct of their respective merchantile businesses. The legislative act in question does not purport to regulate partnerships as such or to place any greater burden of regulation upon them than it places on the individual. It is not the character or tenure of ownership, but the peculiar nature of the business conducted upon and over the public highways, that justifies the classification made by the statute for licensing purposes.” (State ex rel Fohl v. Karel (Fla. 1937), 180 So. 3 at 9.)
“In determining whether one is engaged in transporting property “for hire,” within meaning of the Motor Transportation Act, it is immaterial whether, under contract involving hauling and other work, compensation received for the actual hauling is more or less than that received for the other work. Comp.Gen.Lawa Supp. § 1335(1) et seq.” (Travis et al. v. Fry, 190 So. 793 (Fla. 1939), hn. 2.)
Old Chapter 323 (Florida Statutes) Repealed by Laws 1975, c. 75-109; Laws 1967, c. 76-168; Laws 1977, c. 77-434; Laws 1983, c. 83-84
323.02 Certificate or permit required.
No motor carrier shall operate any motor vehicle for the transportation of persons or property for compensation on any public highway in this state without first having obtained from the public service commission a certificate of public convenience and necessity or a permit as hereinafter provided or a certificate of registration of interstate commerce commission authority as hereinafter provided.
323.03 Common carriers; certificate of convenience required.
323.04 Private contract carriers; certificate of convenience required.
323.12 Speed laws to be observed.
No motor carrier, holding a certificate or permit, shall operate any motor vehicle on public highways in this state in excess of the speed limit permitted by the laws of this state. (A U-Drive-It concern is not subject to this section. Lawrence v. Goddard, 124 Fla. 250, 168 So. 13 (1936).) [FSA 323.13, nt. 1.)
323.17 Qualification of drivers.
No motor carrier shall entrust the operation of any motor vehicle authorized by certificate or permits of the commission to any driver for operation over state highways unless such driver be over the age of twenty-one years, in good and sound health, experienced with the operation of the vehicle entrusted to him and of proven temperate habits. (The Adult Rights Law, § 743.07, reduces the age limit from 21 years to 18 years for drivers of common-carrier motor vehicles described in this section. Op.Atty.Gen, 073-207, June 7, 1973.)
323.191 Transportation of newspapers and newspaper supplements at agreed rates. [This section was omitted from 1977 and 1981 Florida Statutes, omitted when Chapter 323 repealed in 1983.]
(1) Motor carrier common carriers holding certificates of public convenience and necessity issued by the commission may for compensation transport newspapers and newspaper supplements for rates or charges determined or agreed upon by the common carrier and the shipper or owner.
(2) Such common carriers shall not, with respect to cargo consisting of newspapers or newspaper supplements, be required to comply with the provisions of §§ 323.03(1)(e) and 323.08(1), (2).
(3) The provisions of § 323.19 shall not apply in cases of cargo consisting of newspapers or newspaper supplements.
(4) The provisions of this part shall not exempt or excuse any motor carrier from the payment of any road tax imposed by law.
“On July 1, 1980, chapter 323, Florida Statutes, was repealed. The law had provided for regulation of intrastate motor carriers by the Florida Public Service Commission (PSC). Since 1929, Florida had regulated the entry into, rates for and safety of the business of transporting persons or freight for hire over intrastate routes. The repeal of this regulation was pursuant to Florida’s “sunset review” process.” (Florida State University Law Review, Vol 8:681.)
“Direct * * *” Johnson Transfer & Freight Lines et al. v. Perry et al., 47 Fed.Rep.2d 900 (Jan. 24, 1931).
18 USC 31 Definitions:
”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 the transportation of passengers, passengers and property, or property or cargo.
The Employment and Training Administration of the U.S. Department of Labor produces the Dictionary of Occupational Titles. These will apply to definitions used by the U.S. Department of Transportation.
Types of ‘drivers’ from Dictionary of Occupational Titles (Fourth edition 1991), Alphabetical index of occupational titles:
Driver (agriculture) 404.131-010
DRIVER (auto. mfg.; automotive ser.) 919.683-014
driver (domestic ser.) 359.673-010
DRIVER (motor trans.) 913.663-018
driver helper (any industry) 905.687-010
DRIVER HELPER, SALES ROUTE (retail trade; wholesale tr.) 292.667-010
DRIVER, SALES ROUTE (retail trade; wholesale tr.) 292.353-010
DRIVERS’-CASH CLERK (motor trans.) 211.462-030
DRIVER’S LICENSE EXAMINER (government ser.) 168.267-034
DRIVER, STARTING GATE (amuse. & rec.) 919.683-030
DRIVER SUPERVISOR (motor trans.) 909.137-010
DRIVER-UTILITY WORKER (auto. mfg.; automotive ser.) 919.663-018
292.353-010 DRIVER, SALES ROUTE (retail trade, wholesale tr.) alternate titles: delivery-route truck driver; route driver; truck driver, sales route
Drives truck or automobile over established route to deliver and sell products or render services, collects money from customers, and makes change: Drives truck to deliver such items as beer, soft drinks, bakery products, dry cleaning, laundry, specialty foods, and medical supplies to customer’s home or place of business. * * *
359.673-010 CHAUFFEUR (domestic ser.) alternate titles: driver
Drives private car as ordered by owner or other passenger and performs other miscellaneous duties: Assists passengers to enter and leave car and holds umbrellas in wet weather. Keeps car clean, polished, and in operating condition. May make minor repairs, such as fixing punctures, cleaning spark plugs, or adjusting carburetor. May assist CARETAKER (domestic ser.) with heavy work. May groom and exercise pets.
404.131-010 SUPERVISOR, FEILD CROP FARMING (agriculture)
Supervises and coordinates activities of workers engaged in preparing fields and planting, cultivating, and havesting crop specialties, such as cotton, mint tobacco, and hops: * * * May drive farm machinery, such as tractor, baler, and self-propelled harvester. May examine machinery to ascertain maintenance, repair, and replacements, and supervise workers engaged in machinery-maintenance activities. May issue tools to workers. May be designated Driver (agriculture) when supervising cotton workers. May be identified with drop grown.
913.663-018 DRIVER (motor trans.) alternate titles: shuttle-bus driver; van driver
Drives minibus, van, or lightweight truck to transport clients, trainees, or company personnel: Drives wehicle from individual or central loading area to social services or rehabilitation center, training location, job site, or other destination according to assigned schedule. May assist disabled passengers into and out of vehicle. May secure passengers’ wheelchairs to restraining devices to stabilize wheelchairs during trip. May operate radio or similar devices to communicate with base station or other vehicles to report disruption of service. May clean and service vehicle with fuel, lubricants, and accessories. May keep records of trips and behavior of passengers. May perform other duties when not driving, such as custodial and building maintenance tasks.
919.663-018 DRIVER-UTILITY WORKER (auto. mfg., automotive ser.)
Demonstrates, and delivers to purchasers, new and reconditioned buses, trucks, tractors, fire engines, and other heavy vehicles. Picks up and delivers parts, using light truck.
919.683-014 DRIVER (auto. mfg.; automotive ser.) alternate titles: car driver
Drives completed motor vehicle off assembly line to specified repair, shipping, or storage area. May test performance of parts, such as lights, horn, and windshield wipers. May drive completed vehicle onto railroad freight car and secure vehicle for shipping. May drive customer’s vehicle to and from service area of repair shop and be designated Car Jockey (automotive ser.).
I have been informed that the actual driver license constitutes a trust with the State, your all-capital name (look up conspicuous in Black’s or FS 607.01401(4)) being the trust, with you signing your general capacity signature. Two options are to sign “non assumpsit – T.D.C.” or follow your signature with “ttee.”, the international abreviation for “trustee”. Trustees cannot be held liable for their actions regarding the trust. I have not confirmed this – and you would need to be prepared to argue this to the judge anyway.
“A license is merely a permit or privilege to do what otherwise would be unlawful, and it is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a
property right, nor does it create a vested right.” Prettyman Inc. v. Florida Real Estate Commission ex rel. Branham (1926) 109 So 442.
“We have said, and we reiterate, that a license is merely a privilege to do business and is not a contract between the authority granting it and the grantee, nor is it a property right. See syllabus by the court, No. 4, Prettyman Inc. v. Florida Real Estate Commission ex rel. Branham, 92 Fla. 515, 109 So. 442.” Mayo et al. v. Market Fruit Co. of Sanford, Inc. (1949) 40 So.2d 555.
“A license fee implies a privilege and cannot be imposed upon a right. Chicago v. Collins, 49 L.R.A. 408, 175 Ill. 445, 51 N. E. 907.” (L.R.A. Digest, License, ¤ 16.)
“A license, in order to be effectual, must confer authority to do that which, without the license, would be illegal. Banta v. Chicago, 40 L.R.A. 611, 172 Ill. 204, 50 N. E. 233.” (L.R.A. Digest, License, ¤ 16.)
“An ordinance which imposes a fee for the purposes of regulation and requires compliance with prescibed conditions in addition to payment of the fee, is a license proper, imposed by virtue of the police power. Schmidt v. Indianapolis, 14 L.R.A. (N.S.) 787, 168 Ind. 631, 80 N. E. 632.” (L.R.A. Digest, License, ¤ 16.)
“The party to whom a license is granted, takes it on such conditions as the licensing-granting power may see fit to impose. State v. Start Pub. Co. v. Associated Press, 51 L.R.A. 151, 159 Mo. 410, 60 S. W. 91.” (L.R.A. Digest, License, ¤ 30.)
There are many cases which uphold the requirement to have a driver license in order to drive a motor vehicle over the public highways, but it is already settled that the privilege involved is that of using the public highways for commercial purposes, not simply using the roads incidentally in the course of one’s private business or affairs.
While a state may not regulate the performance of a constitutional function:
“A state may not require a postoffice employee to cease driving a government motor truck in the transportation of mail over a post road until he shall obtain a license by submitting to examination before a state official and paying a fee.” (Johnson v. Maryland, hn. 2, 254 U. S. 51, 65 L. Ed. 126, 41 S. Ct. 16.) [ Babbits Motor Vehicle Law, 4th edition, 1933.]
¦ it may regulate federal employees generally:
“An employee of the United States doe not secure a general immunity from state law while acting in the course of his employment.” (Johnson v. Maryland, hn. 1, 254 U. S. 51, 65 L. Ed. 126, 41 S. Ct. 16.) [ Babbits Motor Vehicle Law, 4th edition, 1933.]
“In Com. v. Funk (1936) — Pa. –, 186 A. 65, it was held that permission to operate a motor vehicle upon the public highways was not embraced within the term “civil rights,” and that a license to do so was not a contract or a right of property in any legal or constitutional sense.” (108 ALR 1162.)
Those who are “citizens of the United States” appear not to have exactly the same rights in the states as state citizens, but have “privileges” (who may be required to have driver licenses):
“The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order, but it must not be abridged or denied.” Shuttlesworth v Birmingham, 394 US 147, 89 S Ct 935, 22 L Ed 2d 162. [8 U.S.Rep., Highways ¤ 13.]
“The fourteenth amendment to the Constitution of the United States does not destroy the power of the states to enact police regulations as to the subjects within their control, * * * and does not have the effect of creating a particular right in the citizens to use public property in defiance of the Constitution and laws of the state.” (Davis v. Massachusetts, 167 U. S. 43, 47, 17 Sup. Ct. 731, 733 (42 L. Ed. 71).) [Ex parte Dickey, 85 S. E. 781, at 783.]
“The term “chauffeur” has both a restricted and a general meaning, and in the former sense it applies to persons driving motor vehciles principally for salary or compensation. It is this restricted meaning that has generally been adopted by the statutes in defining the term “chauffeur.” As thus defined, an employee who receives compensation principally for services other than the operation of motor vehicles is not required to obtain a chauffeur’s license, although in performing such services the employee may incidentally operate a motor vehicle. Even under a statute that defines the term “chauffeur” to include every person operating a motor vehicle for hire or as an employee of the owner of the vehicle, it has been held that one who is not employed primarily as the driver of a motor vehicle, but merely operates a motor vehicle of the employer incidentally, to the purposes of the employment, is not required to obtain a chauffeur’s license. (State v. Depew, 175 Md. 274, 1 A.2d 626 (1938).” (7A Am Jur 2d, Automobiles, s. 116 Chauffeurs.)
“The requirement for obtaining a driver’s license for the exercise of the privilege of driving over the public highways, together with the correlative loss of the privilege under certain conditions, is a reasonable regulation of an individual right in the interest of the public good.” (Miami v. Aronovitz (1959, Fla) 114 So 2d 784; Smith v Gainsville (1957, Fla) 93 So 2d 105) [Fla Jur 2d, Autos., s. 106]
“[A] resident of Florida, [was] permitted by the laws of that state to operate a motor vehicle without a license, on July 17, 1931…” (State of Maine v. Chandler (Me. 1932), 161 Atl. 148, 82 ALR 1389, 1390.)
“We judicially know that as originally contemplated the drivers’ license requirement was enacted primarily as a source of revenue to finance the maintenance of the State Department of Public Safety.” (Miami v. Aronovitz, supra, at 787)
“There can be no doubt that in the regulation of the use of automobiles on the public highways the State has ample power to require motor vehicle operators to obtain drivers’ licenses. It likewise has the correlative power to impose reasonable restrictions on the use and enjoyment of the license.” (Smith v Gainsville (1957, Fla) 93 So 2d 105)
“The statutes of Florida provide for licensing automobiles in the name of the owner, or their operation only by the owner or under his authority in the case of nonresidents, and ¦** cite??
“[A]n employee who receives compensation principally for services other than the operation of motor vehicles is not required to obtain a chauffuer’s license, although in performing such services the employee may incidentally operate a motor vehicle.” (Des Moines Rug Cleaning Co. v. Automobile Underwriters, 215 Iowa 246, 245 N.W. 215 (1932)) [Am Jur 2d, Autos., S. 116, “Chauffeurs”]
It is a nonmoving violation to drive a commercial motor vehicle on the highways of this state with a driver license expired thirty days or less. (F.S. 322.03(3)(c))
“A resident of Florida who is required to possess a commercial driver’s license and who operates a commercial motor [vehicle] in the state without such license, is guilty of a misdemeanor of the first degree”. (FS 322.03(3)(b)) [Fla Jur 2d, Autos., s. 105]
“[T]he conviction for driving without a valid license is a civil infraction rather than a first degree misdemeanor.” (GOMEZ v. STATE, 4th District, Case Nos. 96-0296, 96-0297, Dec. 18, 1996.) [22 Fla. L. Weekly D603.] [The vehicle must not have been a commercial one.]
It is a violation of F.S. 322.03 to drive a motor vehicle on the highways of this state with a driver license expired more than four months. (F.S. 322.03(4)) (No penalty given.) [First act in history is c. 19551 (1939) was repealed; reenacted by c. 20451 (1941)]
It is an infraction punishable under s. 318.18 to drive a motor vehicle with a driver license expired for four months or less. F.S. 322.065(1)
“Driving without a valid operator’s license is a violation of section 322.34 [driving while license suspended, revoked, canceled, or disqualified], Florida Statutes (1989), and justifies an arrest.” (State v Jordan (1991) 590 So 2d 1118) [**] [revoked per s. 322.264 (habitual offender), **]
“Straight Trucks”: No commercial driver license is required to operate a recreational vehicle or a “straight truck” used to transport ones own property which is not for sale. (F.S. 322.53(2)(d) and (e)) And because all classifications of driver’s licenses (A through E, defined in F.S. 322.54) are commercial (just as the act’s title says), F.S. 322.53(5) must operate to clarify an exception to the provisions of traffic enforcement for commercial drivers licensed for class D or class E while driving recreational vehicles for private use, or while operating straight trucks transporting their own property which is not for sale. Interpreting F.S. 322.53(5) as requiring a Class D or Class E licenses to drive recreational vehicles or straight trucks for private use would strain against the plain intent of the Act, and violate the inherent right of citizens to travel on the public highways moving their own goods in the course of their private or business affairs as illuminated by Florida Motor Lines, Inc. v. Ward (137 So. 163), State ex rel. Fohl v. Karel, Sherrif (180 So. 3); and Seaboard Air Line Ry. Co. et al. V. Wells et al., Railroad Comrs (130 So. 587), and thus be unconstitutional. Reference FAC 15A, Driver License Exemptions (e), drivers of straight trucks to not need a commercial license. See also, Chapter VII A, § 859A, Secretary of State required to receive descriptions of straight trucks for the inhabitants of Florida; also Chapter 25035 § 12, page 78, 1949 Laws of Florida, Secretary of State required to keep two hundred copies of the 1947 Cumulative Supplement.
*”[She] assumed a legal identity other than a ‘freeman’ when she availed herself of the privilege of driving on the public thoroughfares. Having availed herself of that privilege, she does, indeed, have the duty to specifically perform in accordance with the laws of the state.” Molko v. Milton Birnbaum, L-35855, Decision on Motion for Preliminary Injunction, dated May 27, 1982 in the 3rd District Court in Canyon County, Idaho, PPP.
** It is obvious that the licensed activity of “driving an automobile/motor vehicle” is the privilege of using the highways for commerce, not their incidental use in one’s mercantile or private business or affairs which is every citizen’s right.
Various motor vehicle laws were passed by the State of Florida starting before 1921, resting on authority from the the State of Florida’s 1885 constitution.
Fla. Const. (1885) Art. XVI.
Section 30. The Legislature is invested with full power to pass laws for the correction of abuses and to prevent unjust discrimination and excessive charges by persons and corporations engaged as common carriers in transporting persons and property, or performing other services of a public nature; and shall provide for enforcing such laws by adequate penalties or forfeitures.
Art. XVI. Section 31. No railroad or other transportation company or common carrier in this State shall grant a free pass, or discount the fare paid by the public generally, to any member of the Legislature, or to any salaried officer of this State, and the Legislature shall prohibit the granting or receiving such free pass, or fare at a discount, by suitable penalties.
“In determining validity of regulation of business “affected with public interest”, quoted phrase means that occupation or industry when in operation affects health, safety and welfare of the people and that public is interested to such an extent that reasonable laws can be enacted for regulation thereof. Const. art. 16, sec 30.” McRae et al. v. Robbins et al., hn. 1, 9 So.2d 284 (1942).
“The extent to which an occupation or business may be regulated varies with different kinds of businesses, and Legislature can enact reasonable regulations for barber shops, beauty culture salons, fruit industries, hotels, drivers of automobiles and similar businesses, on the theory that they are “affected with a public interest”. Const. art. 16, sec. 30.” McRae et al. v. Robbins et al., hn. 2, 9 So.2d 284 (1942).
1905 Laws, Chapter 5437, May 11, 1905.
1914 Laws (statutes), Title 9, Chapter VII A, Section 859
Owners to file descriptions of vehicles with Secretary of State, pay fee. Owner provides horns and license tag with Arabic numerals.
1917 Laws, Acts, Chapter 7275, Section 9 et seq.
1921 Laws, Acts, Chapter 8410, Section 7
On August 20, 1926, the first version of the Uniform Vehicle Code (U.V.C.) was published by the U. S. Department of Transportation, National Highway Traffic Safety Administration. This was an attempt (by the U.S. D.O.T.) to set federal standards for the regulation of motor vehicles and drivers for interstate commerce. By examining the Statutes At Large, Volume 44, one finds the prior session (first) ran from December 7th, 1925 to July 3rd 1926, the last act of that session being aproved July 13th. The next (second) session started December 6th 1926 and ran to March 4th 1927, with acts being enacted as early as December 8th. Since Congress was not in session to pass the UVC, and also, being that an examination of the table of laws of the first sesion does not reveal the UVC, it appears it was published under authority of the U.S. D.O.T. It is therefore strictly United States (only, not U.S.A.) commercial law. Since that time it has been revised thirteen times. The states have adopted the U.V.C. into their statutes as a comparison between it and your State’s Traffic resgulation statutes will reveal, and as is claimed by the U.V.C. itself. (See Driver Licensing Laws Annotated.)
** Need 1927 Compiled General Laws, Section 1280
1929 Laws, Chapter 13701 (No. 137)
Changed section 1292 – plate size and form; repealed all conflicting laws.
Chapter 13700, Laws of Florida, effctive July 1st, 1929, regulated the use of the public highways for compensation.
AN ACT Providing for the Supervision and Regulation of Persons, Firms, Corporations and Associations Owning, Controlling, Operating or Managing Motor Vehicles Used in the Business of Transporting Persons or Property for Compensation Over the Public Highways of the State; Defining Auto Transportation Companies and Providing Supervision and Regulation Thereof by the Railroad Commission of the State of Florida and Providing for the Enforcement of the Provisions of This Act and for the Punishment of Violations Thereof and Imposing a Mileage Tax and Provising for the Disposition of the Revenue Raised by the Same; and Repealing All Acts Inconsistent with the Provisions of This Act.
“Chapter 13700, Laws of Florida, contemplates: (1) The conservation of the highways constructed by taxation and other public funds in the state for the use of the public for transportation purposes; (2) the safety of persons and property in the use of the highways; (3) a limited and regulated use of motor vehicles on the highways by persons and corporations engaged in the business of transportation for compensation on such highways only as the public convenience and necessity may require.” (Florida Motor Lines, Inc. v. State Railroad Commission, 132 So. 851, hn. 5)
“An intent of chapter 13700, Laws of Florida, is the permissive limited and not unjustly discriminating use of the highways in the business of transportation for hire, only as the public necessity and convenience may require, and only as such use does not duly impair the roads or the safety or their use by the public.” (Florida Motor Lines, Inc. v. State Railroad Commission, 132 So. 851, hn. 6)
“Laws 1929, c. 13700, applying to business of private motor carrier, operating under special contract for compensation upon public highways between fixed termini and over regular route, same scheme of regulation as to common carriers, was beyond power of state. Smith v. Cahoon, 51 S.Ct. 582, 283 U.S. 553, 75 L.Ed. 1264 (1931).” (FSA 323.01, nt. 1.)
Regarding section 10, c. 13700, Acts 1929:
“The Railroad Commissioners are statutory administrative officers who exercise only statutory authority. Their administrative authority, functions, and duties are not among “the powers of government” which are by the Constitution separated into legislative, executive, and judicial “powers,” and which must be exercised only by appropriate officers “properly belonging to” one of the three “departments of the government of the state of Florida.” The authority conferred by statute under section 30, article 16, Constitution, to prescribe just and reasonable rate, rules, and regulations for the service rendered by common carriers and others “performing other services of a public nature” is quasi legislative in its nature; but such authority as conferred and limited by the statute is not one of “the powers of the government of the state of Florida” that must be exercised only by the Legislature.” Florida Motor Lines, Inc., v. Railroad Commissioners, 129 So. 976 (1930) at 882.
“Railroad Commissioners are statutory administrative officers who exercise only statutory authority; administrative functions and duties of Railroad Commissionaers are not among “powers of government” seperated into three departments of government (Const. art. 2, art. 3, sec. 1, art. 4, secs. 1, 20, 28 and art. 5, sec. 1 as amended in 1914, and sec. 35, as amended in 1910; Acts 1929, c. 13700.” Florida Motor Lines, Inc., v. Railroad Commissioners, hn. 16., 129 So. 976 (1930).
1930 (?) Laws, (statutes), Chapter 138, Section 5565 et seq.
References 1917, 1916, and 1928 laws.
Another law in 1931 regulated motor carriers using the public highways for compensation through the Railroad Commission.
Laws of Florida 1931, Chapter 14764 – AN ACT Providing for the Supervision and Regulation of Persons, Firms, Corporations and Associations Owning, Controlling, Operating or Managing Motor Vehicles Used in the Business of Transporting Persons or Property for Compensation Over the Public Highways of the State; Providing for Regulations of Safety and Proper Operation Affecting the Use of Said Highways and the Preservation Thereof; Defining Auto Transportation Companies and Providing Supervision and Regulation Thereof by the Railroad Commission of the State of Florida, and Providing for the Enforcement of the Provisions of This Act and for the Punishment of Violations Thereof and Imposing a Mileage Tax and Providing for the Disposition of the Revenue Raised by the Same; and Providing Certain Exemptions; and Repealing All Acts Inconsistent With the Provisions of This Act.
Section 1. Definitions:
(a) The word “Commission” means the Railroad Commission of this State.
(b) The term “Corporation” when used in the Act means a corporation, a company, association, or joint stock association.
(c) The term “Person” means an individual firm or copartnership. [Notice the term “individual firm”.]
(d) The word “Certificate” means the Certificate of Public Convenience and Necessity authorized to be issued un[d]er the provisions of this Act.
(e) The word “Permit” means the permissive permit authorized to be issued under the provisions of this Act to those carriers operating over public highways with “for hire” tags in transporting persons or property for compensation other than those holding Certificates of Public Convenience and Necessity under the provisions of this Act.
(f) The term “Public Highway” means every public street, road, or highway in this State.
(g) The term “Motor Vehicle” shall include all vehicles or machines propelled by any power other than muscular usedupon the public highways (but not over fixed rails) for the transportation of persons or property for compensation either as common carriers, private contract carriers or for hire carriers.
(j) The terms “Trucks,” “Trailer,” “Semi-Trailer,” “Tractor”, and “For Hire” as used in this Act shall mean those terms as defined by Section 1280 Compiled General Laws of 1927.
Section 30. Recognizing and declaring that the transportation exempted in this section is casual, seasonal and not on regular routes or schedules, is slow moving, frequently in special equipment, and for comparatively short distances over the improved highways of the State, there shall be exempted from the provisions of this Act and from Commission jurisdiction and control, motor vehicles (other than those engaged in common carrier service) used exclusively in transportating children to and from schools; transportation companies engaged in taxicab service, or the operation of hotel buses to or from depots and hotels, serving the same town or city; and motor vehicles while engaged exclusively in transporting goods, wares, merchandise, horticultural, argicultural, and/or logs, lumber or other forest products, fish, oysters and shrimp, and dairy products, from the point of production of primary manufacture, or from the point of production to the point of assembling the same, or from either such point of production … (remainder omitted).
Nothing in this Act contained shall be construed or applied to require any private motor vehicle engaged in the transportation of goods, wares or merchandise belonging to the owner or operator of such vehicle to secure a permit or a certificate of Public Convenience and Necessity under the provisions of this Act or to become subject to regulation prescribed by this Act or by the Railroad Commission in respect to common, private contract or for hire carriage, or to pay the mileage tax provided by this Act. Casual or irregular trips by motor vehicles not engaged in the business of for hire carriage but operate under private liecense shall not subject such motor vehicles to the provisions of this Act so long as such motor vehicles may not lawfully be required to operate under for hire license tags.
See: State of Maine v. John P. Chandler, 161 Atl. 148, 82 A.L.R. 1389. “The respondent, a resident of Florida, permitted by the laws of that state to operate a motor vehicle without license, on July 17, 1931, while tourng in Maine, was arrested …”
1931 Laws, Chapter 14764, Section 30
(** Need) Amended by 1935 Act; Laws, Chapter 17115 (No. 344)
(** Need) 1931 Laws, Acts, extra session, Chapter 15625, Section 8
1935 Laws, Acts, Chapter 17114, Section 1
1935 Laws, Acts, Chapter 17115, Section 1 amends section 30 of Chapter 14764.
1937 Laws, Ch. 18026–(No. 320)
Act amended Ch. 14764, Sections 1 (definitions), 11 (vehicle specifications), and 16 (taxes)
1937 Laws, Ch. 18027–(No. 321)
Act amended Ch. 14764 Section 27 (Railroad operation of motor vehicles)
1937 Laws, Ch. 18028–(No. 322)
Act amended Ch. 14764 Section 30 (Exemptions)
1937 Laws, Ch. 18029–(No. 323)
Act amended Ch. 17115(must be 14764), Section 30
1939 Laws, Ch. 19551:
Act: Department of Public Safety created with Division of State Motor Vehicle Drivers’ Licenses; given authority to test applicants and issue licenses (s. 26); judges may also issue license, mentioned in section regarding fees (s. 33)
1940 Part, Permanent Cumulative Supplement
Sections 4151(615)-4151(661) repeat ch. 19551, ss. 1-50.
1941 Laws, Ch. 20451:
Act: Ch. 19551 repealed; reenacts it with minor changes; all laws or parts of laws in conflict are repealed.
1941 Florida Statutes, ch. 322 contain ch. 20451, 1941 law.
In 1939, Chapter 19551 (not shown) was passed to replace existing law regarding regulation of traffic through the Department of Highway Safety and Motor Vehicles and the Florida Highway Patrol. This law was repealed and reenacted by Chapter 20541 (below) with almost the same text, but – importantly – with the addition of “Applicants” to the title, bringing those entities into the scope of the law. It is apparent that while some of the definitions were changed in form, the same substance was intended, being the licensing and regulation of vehicles “for hire”. This is especially apparent when one observes that the Act did not show itself to expand the scope of previously licensed activity.
Laws of Florida 1941, Chapter 20451 – AN ACT to Provide State Public Safety; To That End To Create the State Department of Public Safety; To Prescribe Its Membership, Duties, Powers and Authority; To Provide for the Divisions of Such Department, For the Employees Thereof, and Duties and Compensation; To Provide for the Licensing of Chauffeurs and Other Operators of Motor Vehicles as Herein Defined; To Provide for the Supervision, Cancellation and Revocation of Such Licenses; To Provide for Certain Liabilities, Penalties and Punishment For Violations of This Act; to Provide for the Selection and Compensation of the Personnel of the Division of State Highway Patrol of Said Department and Their Duties; To Provide For Other Matters in Connection With Public Safety; and Making Certain Funds Available For the Purpose of Carrying Out the Provisions Hereof; and Repeal Chapter 19551, Laws of Florida, Acts of 1939, Relating to The State Department of Public Safety; To Provide for the Examination of Applicants.
Section 1. There is hereby created a Department of the State Government which shall be known and designated as the Department of Public Safety, under the control and administration of an executive Board composed of the Governor, the Secretary of State, the Attorney General, the Comptroller, the Treasurer, the Superintendent of Public Instruction, and the Commissioner of Agriculture. The headquarters of said Department shall be in the City of Tallahassee and the secretary of State is hereby directed to assign the Department suitable office room in the State Captiol or other State Building in Tallahassee.
Section 2. The Department of Public Safety shall consist of two Divisions as follows: (1) Division of the Florida Highway Patrol and (2) Division of State Motor Vehicle Driver’s Licenses.
Section 13. DEFINITIONS.–* * *
(a) VEHICLE: Every device in , upon, or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.
(b) MOTOR VEHCILES: Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.
(e) PERSON: Every natural person, firm, co-partnership, association or corporation.
(f) OPERATOR: Every person, other than a chauffeur, who is in actual physical control of a motor vehicle upon a highway.
(g) CHAUFFEUR: Every person who is employed for the principal purpose of operating a motor vehicle, and every person who drives a motor vehicle when in use as a public or common carrier of persons or property.
(k) DEPARTMENT: Any reference herein to Department shall be construed as referring to the Department of Public Safety, consisting of the Governor and the Members of the Cabinet, acting directly or through its duly authorized officers and agents.
Section 14. ADMINISTRATION.–The Department of Public Safety and its executive Board, which are otherwise created by the Act, are hereby charged with the administration and function of enforcement of the provisions of this Article. [¦]
This 1941 law created the Department of Highway Safety and Motor Vehicles (DHSMV) within the Executive branch which transferred the responsibility for licensing motor carriers and drivers to the DHSMV but did not alter the nature of the law – regulating the use of the public highways for hire. Chapter 20541 remains today as the basis for F.S. 322, Driver Licenses. The definitions from (section 13 of) the act are essentially in effect today in FS 322.01. Of noteworthiness, is that while the DHSMV was given authority in section 26 (not shown) to issue licenses, judges could also issue licenses as mentioned in section 33, which has not been repealed.
Additionally, the title of the 1941 law includes the phrase “To Provide for the Examination of Applicants” which brought “applicants”, that is, those who are entitled to letters of administration and who file a petition asking that letters be granted, under the motor vehicle laws. “Applicants”, being those acting under authority of a court who go about tending to an estate, can be properly included with motor carriers in that they are are agents operating under the authority of a court and use the highways for that business. (See F.S. 320.0104(1).)
But the phrase “Examination of Applicants” is deceptive in that it is “so worded as to mislead an ordinary mind as to the real purpose and scope of the enactment. (Butler v. Perry, 66 So. 150, 240 US 328) The test of whether a title misleads is whether it would deceive the mind of an ordinary person used to the common meaning of language, not the mind of a precisionist used to technical refinements of terms. (Ison v. Zimmerman, 372 So. 2d 431)” [Fla. Jur. 2d, Statutes, s. 63] The common meaning of the word “applicants” is radically different from the legal, technical meaning, so while the law and its title technically interpreted embrace the proper subject matter, the common man is deceived into thinking he is within the laws when he is not. This violates the spirit of protecting the public from deception caused by the technical use of words; it therefore appears be unconstitutional.
1945 Laws, Ch. 22838:
Amends 1941 Florida Statutes, ch. 322.21 (fees); increases fees, and what judges are allowed for service in issuing license
1945 Laws, Ch. 22858;
Amends 1941 Florida Statutes, chs. 322 and 323; technical corrections
1947 Laws, Ch. 24346:
Amends 1941 F.S., s. 322.18 (expiration and renewal), and amends ch. 22838 (1) and (4), 1945 (fees); judges still issue licenses; repeals all conficting laws
1947 Laws, Chapter 24346
1949 Laws, Chapter 25342, Section 27
1951 F.S. contains Chapter 323, Automobile Transportation Companies (based on 1931 law)
1953 Laws, Ch. 26869:
Amends F.S. various parts; s. 322.21 (fees) amended; judges still issue licenses
1959 Laws, Ch. 59-314: (Note change in form)
Amends F.S. s. 322.21 (4) increasing fees; judges still issue licenses
1961 Laws, Ch. 61-13:
Amends F.S. ss. 322.18 and 322.21; judges still issue licenses
1963 Laws, Ch. 67-377:
Act to permit transportation of newspapers and suppliments, exempting such from provisions of F.S. 323.03(1)(e), 323.08(1) and (2), and 323.19.
1963 Laws, Ch. 63-496:
Change title of F.S. chapter 323 to Motor Carriers; “automobile transporation companies” and “automobile transportation brokers” now called “motor carriers” and “transportation brokers”, respectively
1967 Laws, Ch. 67-242:
Amends F.S. ss. 322.18 and 322.21; judges are not mentioned in new sections; licenses renewed at highway patrol stations pr other authorized sub-agent location
1967 F.S.: (Note that all prior publications of the Florida Statutes were copyrighted by the “State of Florida”, this version and all subsequent ones lack the copyright)
F.S. ch. 322.43-.48 (Driver License Compact) appear
F.S. ch 323 called “Motor Carriers; Freight Forwarding Act”
The governmental reorganization act of 1969 (Ch. 69-106, Laws of Florida) created the DHSMV under the executive branch of government under the 1968 Florida constitution. It reads in part:
AN ACT relating to the executive branch of government; restructuring the executive branch of government and consolidating and reorganizing existing agencies into named departments pusuant to article IV of the state constitution; * * *
Section 2. Declaration of policy.–
- The state constitution contemplates the separation of powers within state government among the legislative, the executive and the judicial branches of the government. The legislative branch has the broad purpose of determining policies and programs and reviewing program performance. The executive branch has the purpose of executing the programs and policies adopted by the legislature and of making policy recommendations to the legislature. The judicial branch has the purpose of determining the constitutional propriety of the policies and programs and of adjudicating any conflicts arising from the interpretation or application of the laws.
- Within constitutional limitations, the agencies which comprise the executive branch should be consolidated into a reasonable number of departments consistent with executive capacity to administer effectively at all levels. The agencies in the executive branch should be integrated into one of the departments of the executive branch to achieve maximum efficiency and effectiveness as intended by section 6 of article IV of the state constitution.
Section 3. Definitions.–To provide uniform nomenclature throughout the structure of the executive branch, the following definitions shall apply in this and all future acts.
(2) “Department” means the principal administrative unit within the executive branch of state government.
Section 24. Department of highway safety and motor vehicles.–There is created a department of highway safety and motor vehicles.
- The head of the department of highway safety and motor vehicles is the governor and cabinet.
- The following divisions of the department of highway safety and motor vehicles are established:
- Division of the Florida highway patrol.
- Division of driver licenses.
- Division of motor vehicles.
- The department of motor vehicles, created under chapter 318, Florida Statutes, is transferred by a type three (3) transfer to the department of highway safety and motor vehicles.
- The depertment of public safety, created under chapter 321, Florida Statutes, is transferred by a type three (3) transfer to the department of highway safety and motor vehicles.
This shows that the DHSMV was continued under the executive branch under the 1968 constitution, and that the separation of powers within state government is retained and affirmed. Also note that the department of motor vehicles, created by old Chapter 318, and the department of public safety, were merged into the DHSMV. (Also see FS 20.24, and FAC 15-1001.)
1975 F.S. Ch. 323 contains, in addition to others, sections .031, .051, ,151, .19, .191, .20, .23, .27, and .33
1977 F.S. Ch. 323 is missing sections .031, .051, ,151, .19, .191, .20, .23, .27, and .33 (mentioned above)
F.S. ch. 322.49-.50 (Florida Nonresident Violator Compact Act of 1977) appear
F.S. ch 323 called “Motor Carriers and Freight Forwarder”
1981 F.S. Ch. 323 is missing sections .031, .051, ,151, .19, .191, .20, .23, .27, and .33 (mentioned above)
1983 Laws, Ch. 83-84
Repeals F.S. 323 sections, omitting sections .031, .051, ,151, .19, .191, .20, .23, .27, and .33 (same as mentioned above)
1989 Laws, Ch. 89-282:
Amends various sections of F.S. 322
F.S. ch 322.51-.66 (Uniform Classified Commercial Drivers’ License Act) appear
Today, Title XXIII of the Florida Statutes governs Motor Vehciles, within which are chapters: State uniform traffic control (Ch. 316), Disposition of traffic infractions (Ch. 318), Title certificates (Ch. 320), Highway patrol (Ch. 321), Drivers’ licenses (Ch. 322), Financial responsibility (Ch. 324), and Vehicle safety equipment and inspections (Ch. 325). The scope of Chapter 316, Florida Statutes, is clearly still limited to commercial use of the public highways.
F.S. 316.002 Purpose.–It is the legislative intent in the adoption of this chapter to make uniform traffic laws to apply throughout the state and its several counties and uniform traffic ordinances to apply in all municipalities. The Legislature recognizes that there are conditions which require municipalities to pass certain other traffic ordinances in regulation of municipal traffic that are not required to regulate the movement of traffic outside of such municipalities.[¦] [Emphasis added.]
There is no doubt that the term “traffic” refers to commerce and the subjects of transportation, and not to the mere use of the public highways for travel. Therefore, Chapter 316 of the Florida Statutes applies only to the use of the public highways for compensation. So also must all of Title XXIII, Florida Statutes.
The Uniform Classified Commercial Driver’s License Act, enacted in 1988, which defines the classes of driver licenses A through E (F.S. 322.54), governs ‘commercial’ drivers. (See Fla Jur 2d, Autos., s. 105.)
F.S. 322.51 Short title.–This act may be cited as the ‘Uniform Classified Commercial Driver’s License Act.’
F.S. 322.52 Conflict with other laws.–This act is a remedial law and should be liberally construed to promote the public health, safety, and welfare. To the extent that this act conflicts with the general driver’s licensing provisions, this act prevails. Where this act is silent, the general driver’s licensing provisions apply.
F.S. 322.53 License required; exemptions.–
- Except as provided in subsection (2), every person who drives a commercial motor vehicle in this state is required to possess a valid commercial driver’s license issued in accordance with the requirements of this chapter.
- The following persons are exempt from the requirement to obtain a commercial driver’s license:
- Drivers of authorized emergency vehicles;
- Military personnel driving military vehicles;
- Farmers transporting farm supplies or farm machinery within 150 miles of their farm, or transporting agricultural products to or from the first place of storage or processing or directly to or from market, within 150 miles of their farm;
- Drivers of recreational vehicles, as defined in s. 320.01; and
- Drivers who operate straight trucks, as defined in s. 316.003, that are exclusively transporting their own tangible personal property which is not for sale. [See Fohl v Karel.]
- Notwithstanding subsection (2), all drivers of for-hire commercial motor vehicles are required to possess a valid commercial driver’s license issued in accordance with the requirements of this chapter.
- A resident who is exempt from obtaining a commercial driver’s license pursuant to paragraph (b), paragraph (d), or paragraph (e) of subsection (2) may drive a commercial motor vehicle pursuant to the exemption granted in paragraph (b), paragraph (d), or paragraph (e) if he possesses a valid Class D or Class E driver’s license or a military license.
F.S. 322.54 Classification.–
[Contains driver license classifications A through E.]
Since the Act (s. 322.51 et seq) is for commercial driver’s licenses, all license, class D and class E included, must be commercial. Interpreting the Class D or Class E licenses as non-commercial would require that the Act, in addition to defining commercial driver’s licenses, also defined non-commercial one’s – a violation of Florida Constitution, Art. 3, s. 16, that “each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title”.
Motor vehicles are instrumentalities which are used to transport persons or property. (see Sherman v. Reserve Insurance Company, 350 So.2d 349, hn.2) [Fla. Jur 2d, Autos., s. 15] The dissenting opinion in Sherman expressed persuasion by Tapscott v. State Farm Mutual Automobile Ins. Co., 330 So.2d 475. However, the opinion in Tapscott, at 477, noted there was no claim in that case that the appellant “had abandoned her automobile as a means of transportation on the public streets and highways.” [Emphasis added.] This statement is obviously directed not at the common use of the highways but at privileged, commercial use.
In Proctor v. City of Coral Spring, 396 So.2d 771, at 772, the court held a zoning ordinance applicable to commercial vehicles as “unreasonable and unconstitutional as applied to pickup trucks. It restricts drivers of pickup trucks * * * even though the vehicle in question is not truly a commercial vehicle; i. e., without commercial markings of any nature and not used for commercial purposes.” The dissenting opinion cites City of Coral Gables v. Wood, 305 So.2d 261, and Henley v. City of Cape Coral, 292 So.2d 410 as authorities. But Wood was a duly licensed Florida attorney and therefore under the commercial regulations. And while the court in Henley v. City of Cape Coral upheld a parking ordinance applied to a commercial vehicle, it admitted “[w]e can readily imagine circumstances in which this ordinance may be unconstitutionally applied as for example to a station wagon which gives no outward appearance of being used in business”. There is therefore seen a distinction between vehicles used in commerce and those used for private purposes.
1a) Since Ch. 63-377, Laws 1963, did not merely modify statute but enacted law, are sections sections .031, .051, ,151, .19, .191, .20, .23, .27, and .33 of F.S. Chapter 323 still in effect, even though they do not appear in the present statutes?
1b) Could permits still be issued under the authority of the unrepealed sections of F.S. chapter 323?
2) Since the drivers license classifications were not enacted into law until 1989 (and did not appear in the Florida Statutes until the 1989 version), and since class A through E licenses were being issued from the Division of Drivers Licenses before that enactment, what was that license?
3) Licenses used to be renewed and issued at highway patrol stations (F.S. 322.18(6), 1975) and now that section reads as “driver’s license examination office” (1977 and after). Since that term is general in nature, do highway patrol stations still renew/issue these licenses?
4) There does not appear to be a penalty for “driving” a not-for-hire/private use automobile. Is there a law regulating this private activity?
5) Since it appears that the 1941 law regulating driving has never been repealed, is it still in force?
The manufacturer’s statement of origin (MSO), also called the manufacturer’s certificate of origin, is the best proof of ownership. (** cites?)
It appears the State Department of Revenue takes a security interest when it pledges to a Personal Guaranty by putting its stamp over that part of the Retail Installment Sale Contract – Security Agreement to buy the automobile, on the bottom of the reverse side (which section is only on the original of that form and not on the copies). The ‘signature/seal’ of an artificial person being its stamp. (** cites?) The State then acquires a “security interest” in your ‘motor vehicle’ – that you pay the Retail Installment Sale Contract for which it has just given its personal guaranty.
Chapter 679 of the Florida Statutes provide definitions relating to a “security interest”:
FS 679.105 Definitions and index of definitions.–
(1) In this chapter unless the context otherwise requires:
(a) “Account debtor” means the person who is obligated on an account, chattel paper, or general intangible;
(b) “Chattel paper” means a writing or writings which evidence both a monetary obligation and a security interest in or a lease of specific goods, but a charter or other contract involving the use or hire of a vessel is not chattel paper. When a transaction is evidenced both by such a security agreement or a lease and by an instrument or a series of instruments, the group of writings taken together constitutes chattel paper;
(c) “Collateral” means the property subject to a security interest, and includes accounts and chattel paper which have been sold;
(d) “Debtor” means the person who owes payment or other performance of the obligation secured, whether or not he or she owns or has rights in the collateral, and includes the seller of accounts or chattel paper. Where the debtor and the owner of the collateral are not the same person, the term “debtor” means the owner of the collateral in any provision of the chapter dealing with the collateral, the obligor in any provision dealing with the obligation, and may include both where the context so requires;
(e) “Deposit account” means a demand, time, savings, passbook, or like account maintained with a bank, savings and loan association, credit union, or like organization, other than an account evidenced by a transferable certificate of deposit that is an instrument within this article;
(f) “Document” means document of title as defined in the general definitions of chapter 671 (s. 671.201) and a receipt of the kind described in s. 677.201(2);
(g) “Encumbrance” includes real estate mortgages and other liens on real estate and all other rights in real estate that are not ownership interests;
(h) “Goods” includes all things which are movable at the time the security interest attaches or which are fixtures (s. 679.313), but does not include money, documents, instruments, investment property, accounts, chattel paper, general intangibles, or minerals or the like (including oil and gas) before extraction. “Goods” also includes standing timber which is to be cut and removed under a conveyance or contract for sale, the unborn young of animals, and growing crops;
(i) “Instrument” means a negotiable instrument (defined in s. 673.1041) or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment; however, the term does not include investment property;
(j) “Mortgage” means an instrument deemed such under chapter 697;
(k) An advance is made “pursuant to a commitment” if the secured party has bound himself or herself to make it, whether or not a subsequent event of default or other event not within the secured party’s control has relieved or may relieve him or her from his or her obligation;
(l) “Security agreement” means an agreement which creates or provides for a security interest;
(m) “Secured party” means a lender, seller, or other person in whose favor there is a security interest, including a person to whom accounts or chattel paper have been sold. When the holders of obligations issued under an indenture of trust, equipment trust agreement, or the like are represented by a trustee or other person, the representative is the secured party;
(n) “Transmitting utility” means any person primarily engaged in the railroad, street railway, or trolley bus business; the electric or electronics communications transmission business, including a telephone company; the transmission of goods by pipeline; the transmission or the production and transmission of electricity, steam, gas, or water; or the provision of sewer service.
The Retail Installment Sale Contract – Security Agreement with which we financed our automobiles is “chattel paper” which creates a security interest. The MSO is taken as collateral by the “secured party”.
FS 679.107 Definitions; “purchase money security interest.”–A security interest is a “purchase money security interest” to the extent that it is:
(1) Taken or retained by the seller of the collateral to secure all or part of its price; or
(2) Taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used.
History.–s. 1, ch. 65-254.
Note.–s. 9-107, U.C.C.
“[T]he holder of any security interest therein may demand and receive from the owner thereof the manufacturer’s statement of origin and may retain it as long as he holds the security interest.” FS 319.21(1) We all know the State grabs our MSO. Even though the MSO is required to be submitted when title is applied for (FS 319.23), only FS 319.21(1) provides that the MSO is retained, then returned when the securty interest terminates.
When the sales contract is paid, the security interest is normally terminated. (69 Am Jur 2s, Secured Transactions ¤ 529) [Fla Jur 2d, Secured Transactions ¤ 337]
The secured party has a duty to return collateral upon payment. “‘When the principal debt secured by the pledge has been paid, the pledgor is entitled at common law to possession of the property pledged¦’ (Pepper v Beville (1930) 100 Fla 97, 129 So 334)” [Fla Jur 2d, Secured Transactions ¤ 341]
For the holder of the MSO to release its security interest, file a ‘Demand for termination statement–By debtor’ (Fla Jur Forms ¤ 49:58).
Information on a motor vehicle may be obtained by getting for HSMV 86056 from a tag and title agency. Follow the instructions on this form to get the information on the motor vehicle.
(1912) The statute licensing motor vehicles is a revenue measure merely, and as there is no provision for examining the operators to test their efficiency, the possession or otherwise of a license can not bear upon the question of the skill of the operator. Atlantic Coast Line R. Co. v. Weir, 63 Fla. 69, 58 So. 641. (1 Fla. Dig, Automobiles, 1.)
“The legislature has a right, as the registration of automobiles is a privilege, to deny that privilege to aliens, and even a town ordinance denying to an alien a license to caryy passengers for hire is valid. (Morin v. Nunan, 91 N. J. L. 506, 103 Atl. 378.)” [Babbits Motor Vehicle Law, 4th edition (1933), ¤ 85.]
“The police power, and not the taxing power, is exercised in licensing the use of vehilces on the streets. Tomlinson v. Indianapolis, 36 L.R.A. 413, 144 Ind. 142, 43 N. E. 9.” (L.R.A. Digest, License, ¤ 73.)
“In licensing the use of vehicles on streets, the city is exercising its police, and not its taxing power. Desser v. Wichita, L.R.A. 1916D, 246, 96 Kan. 820, 153 Pac. 1194.” (L.R.A. Digest, License, ¤ 73.)
“The legislature may authorize a city to impose a tax for the privilege of using vehicles on its streets, which is to be expended in keeping them in repair. Ft. Smith v. Scruggs, 58 L.R.A. 921, 70 Ark. 549, 69 S. W. 679.” (L.R.A. Digest, License, ¤ 73.)
“Power to regulate the use of streets does not authorize the exaction of a license fee for their use by private vehicles. Chicago v. Collins, 49 L.R.A. 408, 175 Ill. 445, 51 N. E. 907.” (L.R.A. Digest, License, ¤ 73.)
Procedure RS-01 section D. Vehicle Information tells what information must be collected for the motor vehicle [partial]:
A description of the motor vehicle to be registered must include:
- The purpose for which the vehicle is to be used. If a vehicle is a body type of van, for proper registration the owner must provide information as to whether the use is a station wagon or truck. Classification of vans and similar type vehicles (ie. Blazers, Broncos, etc.) is based on the following criteria:
- If the vehicle has passenger seats in the back and is used for the primary purpose of transportation of passengers and their personal goods, the owner has the option of registering the vehicle as an automobile or truck.
- If the vehicle does not have a back passenger seat or is used primarily for the transportation of goods, then the vehicle must be registered as a truck.
Goods. – Black’s 6th (partial)
All things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities and things in action. Also includes the unborn of animals and growing crops and other identified things attached to realty as fixtures. U.C.C. s. 2-105(1). All things treated as movable for the purposes of a contract of storage or transportation. U.C.C. s. 7-102(1)(f). In context of U.C.C., includes used goods. Moore v. Burt Chevrolet, Inc., 39 Colo.App. 11, 563 P.2d 369, 370.
** Need to define: Passenger car, passenger automobile, motor coach pickup truck, heavy truck, trailer, semitrailer, recreational vehicle, motorcycle, etc., vehicles used as tools
“The foundation of the railroad commissioners’ judicial powers was founded in Const.1885, Art. 5, s. 35. Atlantic Coast Line R. Co. v. Carter, 66 So.2d 480 (1953).” (FSA Const Art. 5, s. 1, nt. 16.)
Fla. Const. (1885) Art. V. Section 35. No courts other than those herein specified shall be established in this State.
[May 27, 1897 amend.] Section 35. No courts other than herein specified shall be established in this State, except that the Legislature may clothe any railroad commission with judicial powers in all matters connected with the functions of their office.
[Nov. 8, 1910 amend.]Section 35. No Courts other than herein specified shall be established in this State, except that the Legislature may provide for the creation and establishment of such additional Judicial Circuits as may from time to time become necessary, and for the appointment by the Governor and confirmation by the Senate of additional Circuit Judges therefor, whose terms of office and general jurisdiction shall be the same as is herein provided for the Circuit Judges herein already provided for, and may clothe any Railroad Commission with judicial powers in all matters connected with the functions of their office.
“Exercise by railroad commission of quasi legislative or quasi judicial functions was subject to appropriate judicial review. Florida Motor Lines v. Railroad Commissioners, 100 Fla. 538, 129 So. 876 (1930)” (FSA Const Art. 5, s. 1, nt. 16.)
“Laws 1929, c. 13700, prescribing duties and conferring powers upon railroad commission required performance of quasi judicial functions by railroad commissioners. Florida Motor Lines v. Railroad Commissioners, 100 Fla. 538, 129 So. 876 (1930)” (FSA Const Art. 5, s. 1, nt. 16.)
“Laws 1929, c. 13700, prescribing duties and coferring powers, and requiring performance of quasi judicial powers was not illegal delegation of judicial powers. Florida Motor Lines v. Railroad Commissioners, 100 Fla. 538, 129 So. 876 (1930)” (FSA Const Art. 5, s. 1, nt. 16.)
“Railroad commission, within constitutional limits, could exercise judicial powers necessary to enforcement or performance of statutory duty, power, or function. Florida Motor Lines v. Railroad Commissioners, 100 Fla. 538, 129 So. 876 (1930)” (FSA Const Art. 5, s. 1, nt. 16.)
Traffic infractions are civil crimes not punishable by incarceration. (F.S. 318.13(3))
Magistrates/Traffic hearing officials cannot on their own hold people in contempt of court, but may file a motion for order of contempt. (F.S. 318.32(1)(a))
“No person belonging to one branch of government may exercise any powers appertaining to either of the other branches.” (Fla Const Art II, s. 3) [Fla Jur 2d, Courts, s. 17]
“One consequence of the separation of governmental powers is that no functions may be imposed on courts except those of a judicial nature. It follows that judges may not be vested with either legislative or executive powers.” (Burnett v Greene (1929) 97 Fla 1007, 122 So 570) [Fla Jur 2d, Courts, s. 17]
“Under the doctrine of separation of powers, which is embedded in both the state and federal constitutions, the judiciary has no power to make law, and in no case may it interfere with legislative prerogatives.” (Fla Jur 2d, Courts, s. 19)
“The power of any court is derived from the government which created it, and is limited to or by the instruments conferring such power. In this state, the ultimate source of all judicial power is the Constitution, statutory allocation of jurisdiction being limited to such as the constitution authorizes. Courts cannot assume jurisdiction not granted them by the constitution or by statute or which has been expressly denied.” (Fla Jur 2d, Courts, s. 26)
“Jurisdictional facts pleaded in good faith constitute the test for determining jurisdiction.” (Fla Jur 2d, Courts, s. 28 [State v Miami (1933) 113 Fla 280, 152 So 6])
“The defense of lack of jusidiction over the person is waived if not timely presented.” Green v Hood (1960, Fla App D2) 120 So 2d 223. [Fla Jur 2d, Actions, s. 100] However, jurisdiction over subject matter cannot be conferred by consent or agreement, nor can such lack be waived. (Fla Jur 2d, Actions, s. 101)
“[W]here a motion to quash service is overruled, the defendant may pursue his contention by appeal without submitting himself to the jurisdiction of the court for any purpose other than to challenge jurisdiction. Bowmall v Bowmall (1937) 127 Fla 747, 174 So 14.” (Fla Jur 2d, Actions, s. 103)
Presumptions of jurisdiction may be invoked in favor of courts of general jurisdiction, but not with regard to courts of limited jurisdiction. The facts on which the jurisdiction of courts of limits jurisdiction rests must appear in the record. (Fla Jur 2d, Courts, s. 29) The County Courts are classified as courts of limited jurisdiction. (Fla Jur 2d, Courts, s. 71)
It has been shown (above) that the licensing of drivers is done by executive agencies, and therefore courts for traffic infractions must be executive courts. Criminal traffic violations are outside the jurisdiction of traffic hearing officers and within that of judicial officers.
Even though it has been ruled that after certain traffic infractions were decriminalized that “county courts were to remain vested with jurisdiction over these matters” (Nettleton v. Doughtie, 373 So.2d 667, hn. 3), a ruling from Alachua County has not been overturned that “it is a violation of a separation of powers provision of the State Constitution for a judicial officer to sit as a hearing official in a noncriminal traffic infraction case.” (State v. Carr , 373 So.2d 657) And because the jurisdiction of “county courts shall be uniform throughout the state.” (Fla.Const. 5-6), a court being not merely a place but necessarily composed of officers with judicial powers (Fla Jur 2d, Courts, s. 1), no county judge outside of Alachua County can rule he has authority to sit as a traffic hearing official, because to do so would inflict non-uniformity of jurisdiction of County Courts. (An Alachua County judge might rule he has authority to hear a traffic infraction case, but that would probably then create an uncertainty on this issue in this state requiring clarification by the Supreme Court.) The county court which hears traffic infractions must therefore be one staffed by nonjudicial officers, and distinct from the court presided over by judges; it must be an executive court.
** Get cases:
If a court should render a judgement in a case where it has no jurisdiction, it would be void. (** Krivitsky v Nye (1944) 155 Fla 45, 19 So 2d 563; ¦) [Fla Jur 2d, Courst, s. 26]
Judges are not prohibited from exercising concurrent jurisdiction with a civil traffic hearing officer. (F.S. 318.32(2)) Upon the request of the defendant, the case shall be assigned to a county court judge regularly assigned to hear traffic matters. (F.S. 318.32(3))
Judges have the power to rule on the jurisdiction for executive courts. (State ex rel. Hardie v Coleman (1934) 115 Fla 119, 155 So 129) [Fla Jur 2d, Courts, s. 21]
The judiciary has no power to make law, and in no case may it interfere with legislative prerogatives. (Fla Jur 2d, Courts and Judges, s. 19)
A court must proceed in the administration of justice within the limitations of its power. [Courts, 30] (State ex rel. Dillman v Tedder (1936) 123 Fla 188, 166 So 590)
Judges cannot refuse to hear a case within their jurisdiction. [Courts, 30] (Newport v Culbreath (1935) 120 Fla 152, 162 So 340)
A court cannot improperly refuse to exercise jurisdiction once it is shown to exist; in all cases where refused without justification, the remedy of mandamus becomes available. (Fla Jur 2d, Courts, s. 29) Under the doctrine of forum non conveniens a court may decline to exercise jurisdiction over a transitory cause of action if the cause of action is not sufficiently related to the court’s forum; but it constitutes abuse of discretion by the party advancing said doctrine when no other forum appears on the record and is not advanced. (Fla Jur 2d, Courts, s. 29)
“Ordinarily, in an action purely in personam in which a personal judgement is sought, personal service of process on the defendant is required, and in any case, in the absense of a statute authorizing a substitutional method, service of process must be personal. (62 Am Jur 2d, Process ¤ 44)” [Fla Jur 2d, Process ¤ 26.]
“Generally, jurisdiction over the person of a nonresident ¦ can be acquired only by personal service of process ¦ unless he or she waives service of process by voluntary appearance or consents to or accepts some form of service other than personal service. Under this rule a personal judgement without personal service on a nonresident defendant who does not appear or otherwise waive such service is regarded as void as obtained without due process of law. (Gribbel v Henderson (1942) 151 Fla 712, 10 So 2d 734, other cites omitted)” [Fla Jur 2d, Process ¤ 26.]
“Defenses pertaining to lack of jurisdiction over the subject matter, lack of jurisdiction over the person, insufficiency of process, and insufficiency of the service of process may, at the option of the pleader, be made by motion rather than in the responsive pleadings. (Fla Jur 2d, Actions ¤ 65)” [Fla Jur 2d, Process ¤ 84.]
“A defendant who is not served with process may disregard the proceedings and subsequently raise the objection on an appeal from the decree or resist the execution of the decree as void. (Husley v Commercial Inv. Trust, Inc. (1931) 103 Fla 609, 138 So 766; Rorick v Stilwell (1931) 101 Fla 4, 133 So 609.)” [Fla Jur 2d, Process ¤ 84.]
FS 48.031 Service of process generally; service of witness subpoenas.–
(1)(a) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section. [Emphasis added.]
(b) Employers, when contacted by an individual authorized to make service of process, shall permit the authorized individual to make service on employees in a private area designated by the employer.
* * *
If one is outside the State, service is accomplished as provided in FS 48.194.
Those acts which subject persons to the jurisdiction of the state are listed in FS 40.193. This list is very limited.
Look up “tort”. At first blush, one may think violating a traffic ‘law’ may be a tort. But see also Title XLV, Florida Statutes (Chs. 766-773). Nowhere in Title XLV can I find violating a traffic ‘law’ being defined as a tort. And under the principle layed out in National Bank of Jacksonvill v. Williams et al. that “[t]he provisions of chapter 3747, Laws Fla. 1887 (* * *), not being included in the provisions of the Revised Statutes (sections 1727-1741) which cover the same subject-matter, are thereby repealed” (38 Fla. 305, 20 So. 931, hn. 2), no other definitions of torts can exist in the statutes. (I didn’t see any in a search either.)
FS 318.20 Notification; duties of department.–The department shall prepare a notification form to be appended to, or incorporated as a part of, the Florida uniform traffic citation issued in accordance with s. 316.650. The notification form shall contain language informing persons charged with infractions to which this chapter applies of the procedures available to them under this chapter. Such notification shall contain a statement that, if the official determines that no infraction has been committed, no costs or penalties shall be imposed and any costs or penalties which have been paid shall be returned. A uniform traffic citation that is produced electronically must also include the information required by this section.
History.–s. 1, ch. 74-377; s. 39, ch. 76-31; s. 8, ch. 86-154; s. 2, ch. 86-185; s. 48, ch. 96-350.
No statutory requirement existed prior to 1971 which required an operator or owner of a motor vehicle to have proof of financial responsibility or security in his immediate possession or in a motor vehicle when it is operated in the state. (FlAG 072-160)
Statutory requirement added in FS 316.646, violation of not having such proof as required by 627.733 with you is a non-moving violation. See FS 316.646.
A municipal police officer cannot enforce a violation of state drivers’ license laws. (FlAG 048-231, July 23, 1948)
Arrest authority of officer at scene of a traffic accident:
FS 316.645 Arrest authority of officer at scene of a traffic accident.–A police officer who makes an investigation at the scene of a traffic accident may arrest any driver of a vehicle involved in the accident when, based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of this chapter or chapter 322 in connection with the accident.
History.–s. 1, ch. 71-135; s. 1, ch. 76-31; s. 3, ch. 81-3; s. 5, ch. 83-218.
Note.–Former s. 316.017.
“It is a recognized principle of statutory construction that a statute directing a public officer to do a certain thing, and including provisions qualifying the doing of that thing, is generally to be read as requiring that such qualifications be satisfied before the authorized thing may be done. In Seaboard Air Line R. Co. v. Wells, 130 So. 587, 593 (Fla. 1930), the court stated that “where a statute says a thing ‘may’ be done by a public official which is for the public benefit, it is to be construed that it must be done.” In 2A Sutherland Statutory Construction s. 57.14, p. 435, it is stated:
“Where authority is granted to public officers to do a thing in a certain way, the manner of doing the thing is mandatory, or jurisdictional, and a limitation on the authority of the officer, even though the doing of the thing in the first place may be discretionary. (Emphasis supplied.)
“Also in Sutherland, at s. 57.17, p. 441, it is stated:
“Certain principles peculiar to statutory provisions involving grants of power or authority have eveolved for the determination of their mandatory or directory character. Under the general rule that grants of powers are strictly construed, such provisions are generally mandatory in the sense that the power granted can be exercised only in strict conformity with the statutory therefor. (Emphasis supplied.)
“In the frequently cited case of White v. Crandon, 156 So. 303, 305 (Fla. 1934), the Florida Supreme Court concisely stated this principle as follows: “The authority of public officers to proceed in a particular way or only upon specific conditions implies a duty not to proceed in any manner (other) than that which is authorized by law.” The court also stated, in Alsop v. Pierce, 19 So.2d 799, 805-806 (Fla. 1944), that “[w]hen the controlling law directs how a thing shall be done that is, in effect, a prohibition against its being done in any other way.”” (FlAG80-36, April 24, 1980.)
If Florida Juris Prudence 2nd can be considered authoritative, those who can enforce traffic laws are listed in sections 262-265 of volume 4A: the Florida Highway Patrol, the Divisions of Law Enforcement of the Game and Fresh Water Fish Commission, and the Division of Law Enforcement of the Department of Natural Resources each have authority to enforce all traffic laws of the state; university police officers have authority on property and in facilities under the State University System; Florida Marine Patrol Officers may detain and cite drivers for noncriminal traffic infractions [4a Fla Jur 2d, Autos. S. 262]; the sheriffs’s office may enforce all of the traffic laws [4A Fla Jur 2d, Autos. 263]; and police officer’s have authority to arrest any driver of a vehicle involved in an accident when, based on personal investigation, the officer has reasonable and probable grounds that the person committed a traffic offense (FS 316.645) [4A Fla Jur 2d, Autos. 264]. This implies that municipal police can only give a ticket unless there’s been an accident.
“Where the defendant revealed cocaine when emptying his pocket to show a police officer that he had no identification, the court granted the motion to supress. The court held an individual is not obligated to furnish a law enforcement officer with identification, absent special circumstances.” State of Florida v. wilson, 16 Fla Supp 2d 13.
** Approaching a vehicle with a gun ¦
Defendant was improperly convicted * * * where there was no evidence that the car moved or that the ignition was turned on, and where defendant simply ran off when her brother assailed the police officer for having placed defedant under arrest. Because the arresting officer had no evidence that defendant had committed even a misdemeanor in his presence, defensant’s arrest was unlawful and therefore * * * defendant had the common-law right to resist the unlawful arrest without resorting to the use of force. (Marshall v. State (1978, Fla App D2) 354 So 2d 107) [Fla Jur 2d, Autos., s. 94pp]
A search of a vehicle after the issuance of a traffic citation is a violation of the Fourth Amendment. (Knowles v. Iowa, 569 N. W. 2d 601)
The current traffic court rules have been promulgated by the Florida Supreme Court as an emergency matter:
“A Case of Original Jurisdiction.
Appended to this order is a compilation of rules to govern the practice and procedure in courts throughout the state handling traffic cases until the permanent rules are submitted by The Florida Bar for adoption.
The rules are promulgated as an emergency matter to govern the courts in the handling of traffic cases under the Florida Uniform Dispotition of Traffic Infractions Act, Chapter 74-377, Laws of Florida. This Act, which decriminalizes most traffic offenses, takes effect on Janurary 1, 1975.
All conflicting rules and statutes are hereby rescinded after 11:59 p. m., Eastern Standard Time, December 31, 1974.
It is so ordered.”
In re TRANSITION RULE 20, 306 So.2d 489 (Fla. S.C., Dec. 9, 1974.)
According to Rules of Criminal Procedure 3.170(c), “If a defendant stands mute, or pleads evasively, a plea of not guilty shall be entered.”
According to Rules of Civil Procedure 1.110(a), “Forms of action, and technical forms for seeking relief and of pleas, pleadings, or motions are abolished.” Therefore, as noted in that index, pleas have been abolished for civil cases.
“Magistrates shall be empowered to accept pleas from and decide the guilt or innocence of any person¦” FS 318.32(1)
In case the judge wants to keep people not directly invovled in a traffic case outside the hearing room:
“[I]n the absence of an applicable statute, rule, or principle of law requiring or authorizing a closed hearing, referee hearings conducted by authority of this Court must be open to the public. See Fla. R. Jud. Admin. 2.030(f).” The Florida Bar vs. Daniel E. Schramex, Supreme Court of Florida, Case No. 77,871, Tuesday, February 4, 1992.
The traffic citation is not admissible evidence in any trial. (F.S. 316.650(9))
The officer may indicate the applicable civil penalty established in FS 318.18. (F.S. 318.14(2))
Willfully refusing to accept and sign a summons is a misdemeanor. (F.S. 318.14(3))
Paying the fine indicates admission to the infraction. (F.S. 318.14(7))
Withholding adjudication for a traffic infraction is not considered a conviction. (F.S. 318.14(11))
Conveyance: ”means an instrument, including a conditional sales contract, affecting title to, or an interest in, property.” (49 USC 40102(a)(19))
Garage: “Broadly speaking, a garage is a place where motor vehicles can be sheltered, stored, replaired, cleaned, and made ready for use, although it may be given a more limited meaning for particular purposes. Primarily, a garage is a place, structure, or building where motor vehicles are stored and cared for. It is the modern substitute for the ancient livery stable. A public garage is a building in which, for compensation, motor vehicles are stored primarily for safe keeping, and not merely as an incident to being repaired. A private garage is a structure or building kept for storage of motor vehicles by the owners or certain other persons, but not the general public. (38 Am Jur 2d, Garages, s. 1)” [Fla Jur 2d, Garages, s. 1]
Guest: A guest is one who is riding for free, as opposed to a passenger who has paid or provided some other compensation for his ride. In both instances, it appears the “driver” is a driver for hire. One travelling about for pleasure with another managing an “automobile” would be a rider or friend. (** cites¦)
Pedestrian: Any person afoot. (Florida Model Traffic Ordinance, ch. 57-333, s. 2(32)) [This defines some person engaged in traffic on foot, perhaps lugging merchandise on the back or shoulder.]
Private road or driveway: Every road or driveway not open to the use of the public for the purposes of vehicular traffic. (ch. 57-333, s. 2(35))
Private street: “Literally speaking, this is an impossibility, for no way can be both private and a street. It may be one or the other, but not both. Greil v. Stollenwerck, 201 Ala. 303, 78 So. 79, 82.” Black’s 4th
“[A]n orally amended citation charging the defendant with the criminal offense of driving with a suspended license would be dismissed where no arrest warrant, sworn statement, or other complaint substantiating the offense was prepared and the traffic citation was not sworn to by the arresting officer or notarized by an authorized person.” (State v Olivia (1990, Dade City Ct) 42 Fla Supp 2d 221) [ Fla Jur 2d, Autos., s. 138]
“Evidence that motorist cited for traffic violation was incarcerated for 23 minutes during booking process, even though he had never been arrested and at all times had sufficient cash on hand to post bond pending court disposition of citation, was sufficient to support finding that municipality employing officer who cited motorist and county board of criminal justice, which operated facility in which motorist was incarcerated, had unconstitutionally deprived motorist of his right to liberty. 42 U.S.C.A. Sec. 1983.” Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 1
“Jury verdict of $25,000 in favor of motorist who was unconstitutionally deprived of his liberty when incarcerated during booking process following citation for traffic violation was not excessive in view of evidence of motorist’s back pain during period of incarceration and jailor’s refusal to provide medical treatment, as well as fact that motorist was clearly entitled to compensation for incarceration itself and for mental anguish that he had suffered from entire episode. 42 U.S.C.A. Sec. 1983.” Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 5
“A state can only act by its officers. Fitts v McGhee, 172 US 516, 19 S Ct 269, 43 L Ed 535” U.S.S.Ct.Dig, States ¤ 4.
“What the state may not do directly it may not do indirectly. Bailey v Alamaba, 219 US 219, 31 S Ct 145, 55 L Ed 191” U.S.S.Ct.Dig, States ¤ 4.
“To constitute the offense of inducing interstate transportation of woman for immoral purposes, givernment must prove beyond reasonable doubt that bus used for transportation was common carrier (18 USCA § 400).” Coltabellotta v. United States, 45 F.(2d) 117 (Nov. 10, 1930).
Federal Drivers Act – 28 USC 2679 (from USC Popular Name Table)
** Need references: Interstate banks can only make loans associated with interstate commerce¦