Category Archives: The Great Communist State of Illinois

Government Regulators Target 11-year Old's Cupcake Business

This story http://www.bnd.com/2014/01/26/3021370/troy-11-year-old-turns-cupcakes.html about an industrious, entrapreunorial youngster caught the attention of the Madison County Health Department, inspiring the synaptic-challenged, bureaucratic buffoonery of nanny-state nincompoops to rear its empty head and threaten the child with a sundry of penalties if she does not procure proper permits, licenses, and pay corresponding fees. The story referencing the state-sponsored terrorist threats against a child of insufficient age, to understand legalese or comprehend the law, is here http://www.bnd.com/2014/01/27/3026205/stir-crazy-young-baker-needs-help.html

The story was encapsulated by this brilliant political cartoon, the artist-of-which, I must say, shares some of my DNA. Aside from the over-the-top bullying by the State, this is primarily a litmus test to see how far they can push us, in this case, tugging at our heart strings with an 11 year old girl who has beckoned the ire of the State.

Madison County Cupcake Regulatory Dipshits

A perusal of the county website,http://www.madisonchd.org/index.shtml, shows the chief administrator as:

Toni Corona, B.S., L.E.H.P.
Public Health Administrator
tmcorona@co.madison.il.us
(618) 296-6065

The Board of Health Members roster is here: http://www.madisonchd.org/board-of-health.shtml

Of course, the government does this all under the pretense that they are watching out for our safety; and such regulations are intended to prevent the spread of disease and injury from businesses who fail, or refuse, to implement prudent and reasonable precautions. This power, called the “police power” (which has nothing go do with police as we commonly refer to them) is regarded as in inherent power of the State to provide for the protection of the public health, safety, welfare, and morals. The police power is undefined, broad, and unlimited. It does not derive from any constitution. It’s powers are limited by the constitution, meaning it cannot cause you to be arrested or searched without constitutional limitations applying, but the scope of its legislation is so encompassing that it does need a constitution to bestow it. It is the inherent power of the State.

The purpose of this article is not to provide an in-depth analysis of the police power because first, the discussion on the validity of the State, sovereignty, natural rights, and consent, would need to be analysed. This article is a diatribe against a county regulatory board which has capriciously and zealously targeted a harmless 11 year-old girl with precocious baking abilities, and painting her as a threat to the public health in-need of governmental oversight in order to secure the confidence and soothe the minds of the fearful masses from contracting life-threatening pathogens or disease from the pre-pubescent, dough-flinging wench.

As with most bureaucratic buffoonery, the regulators will allege a violation, yet fail or refuse to cite which specific law is being broken. They will claim that you need a permit or license, or that you can’t do something, but never articulate the specifics supporting their claims. If we are to believe the Health Department’s claim, we need to find the law they refuse to cite. I found 3 possible laws/regulations which could possibly apply. The result of my research revealed the Cottage Food Preparation Act, which addressed ONLY food sold at farmer’s markets.

The first source would be the Madison County Zoning Ordinance – http://www.co.madison.il.us/planning/PDF/ZoningOrdinance.pdf

This would address the use of the home, as zoned, for baking.

The second source would be the Illinois Food Preparation Act – http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1584&ChapterID=35

And the third would be the Illinois Food Handling Regulation Enforcement Act. – http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1578&ChapterID=35

The most applicable and plausible regulation is the Food Handling Regulation Enforcement Act (410 ILCS 625/4), which allows for “Cottage food operation”.

If you want to understand legislation, there is no better resource than the House or Senate debates as to the intent and application of that Legislation. I researched what the County failed to define and found some very telling information. It is my contention that the law does NOT apply to Chloe, and others like her who are not corporate entities or otherwise dealing with hazardous foodstuffs being sold to the public.

My research and findings follow. In the mean-time, If I were Chloe, I would continue to do what I do and wait for the paper tiger to bare its fangs and let the chips fall where they may. I seriously doubt there would be any fines or penalties in her case.

Madison County Zoning Ordinance

http://www.co.madison.il.us/planning/PDF/ZoningOrdinance.pdf

PUBLIC HEALTH (410 ILCS 650/) Sanitary Food Preparation Act. ~ http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1584&ChapterID=35

PUBLIC HEALTH (410 ILCS 625/) Food Handling Regulation Enforcement Act. ~ http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1578&ChapterID=35

Cottage Food Preparation added by Public Act 097-0393 http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=097-0393&GA=97

SB0840 Enrolled  LRB097 04584 KTG 44623 b

Senate Transcripts

http://www.ilga.gov/search/LISGSApage.asp?target=SB0840&submit1=Go&scope=sentran97

5/3/2011 @ Page 47 This bill relates to food sold at Farmer’s Markets ~ http://www.ilga.gov/senate/transcripts/strans97/09700035.pdf

5/27/2011 @ Page 13 Voting on the Bill ~ http://www.ilga.gov/senate/transcripts/strans97/09700054.pdf

House Transcripts

5/23/2011 @ Page 34 through Page 43 Addresses food sold at Farmer’s Markets and discusses how home bakers are affected. THIS is the important discussion you want to read. In the discussion it states that the Amish are already allowed to sell bake goods, and the Bill does not affect them. On Page 37, it discusses specifically bake sales held by groups or churches and the determination is that it does not affect what they do, it just adds the definition of what a farmer’s market is. At the top of Page 38, Representative Dugan says, “We think… I think, Representative (speaking to Representative Eddy) they’re currently exempt under current law.” ~ http://www.ilga.gov/house/transcripts/htrans97/09700062.pdf

TEXT OF THE ILLINOIS COTTAGE FOOD PREPARATION PROVISION

(410 ILCS 625/4)
Sec. 4. Cottage food operation.
(a) For the purpose of this Section:
“Cottage food operation” means a person who produces or packages non-potentially hazardous food in a kitchen of that person’s primary domestic residence for direct sale by the owner or a family member, stored in the residence where the food is made.
“Farmers’ market” means a common facility or area where farmers gather to sell a variety of fresh fruits and vegetables and other locally produced farm and food products directly to consumers.
“Potentially hazardous food” means a food that is potentially hazardous according to the Federal Food and Drug Administration 2009 Food Code (FDA 2009 Food Code) or any subsequent amendments to the FDA 2009 Food Code. Potentially hazardous food (PHF) in general means a food that requires time and temperature control for safety (TCS) to limit pathogenic microorganism growth or toxin formation. In accordance with the FDA 2009 Food Code, potentially hazardous food does not include a food item that because of its pH or Aw value, or interaction of Aw and pH values, is designated as a non-PHF/non-TCS food in Table A or B of the FDA 2009 Food Code’s potentially hazardous food definition.
(b) Notwithstanding any other provision of law and except as provided in subsections (c) and (d) of this Section, neither the Department of Public Health nor the Department of Agriculture nor the health department of a unit of local government may regulate the service of food by a cottage food operation providing that all of the following conditions are met:
(1) The food is not a potentially hazardous baked
good, jam, jelly, preserve, fruit butter, dry herb, dry herb blend, or dry tea blend and is intended for end-use only. The following provisions shall apply:

(A) The following jams, jellies and preserves are
allowed: apple, apricot, grape, peach, plum, quince, orange, nectarine, tangerine, blackberry, raspberry, blueberry, boysenberry, cherry, cranberry, strawberry, red currants, or a combination of these fruits. Rhubarb, tomato, and pepper jellies or jams are not allowed. Any other jams, jellies, or preserves not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6.

(B) The following fruit butters are allowed:
apple, apricot, grape, peach, plum, quince, and prune. Pumpkin butter, banana butter, and pear butter are not allowed. Fruit butters not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6.

(C) Baked goods, such as, but not limited to,
breads, cookies, cakes, pies, and pastries are allowed. Only high-acid fruit pies that use the following fruits are allowed: apple, apricot, grape, peach, plum, quince, orange, nectarine, tangerine, blackberry, raspberry, blueberry, boysenberry, cherry, cranberry, strawberry, red currants or a combination of these fruits. Fruit pies not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6. The following are potentially hazardous and prohibited from production and sale by a cottage food operation: pumpkin pie, sweet potato pie, cheesecake, custard pies, creme pies, and pastries with potentially hazardous fillings or toppings.

(2) The food is to be sold at a farmers’ market.
(3) Gross receipts from the sale of food exempted
under this Section do not exceed $25,000 in a calendar year.

(4) The food packaging conforms to the labeling
requirements of the Illinois Food, Drug and Cosmetic Act and includes the following information on the label of each of its products:

(A) the name and address of the cottage food
operation;

(B) the common or usual name of the food product;
(C) all ingredients of the food product,
including any colors, artificial flavors, and preservatives, listed in descending order by predominance of weight shown with common or usual names;

(D) the following phrase: “This product was
produced in a home kitchen not subject to public health inspection that may also process common food allergens.”;

(E) the date the product was processed; and
(F) allergen labeling as specified in federal
labeling requirements.

(5) The name and residence of the person preparing
and selling products as a cottage food operation is registered with the health department of a unit of local government where the cottage food operation resides. No fees shall be charged for registration.

(6) The person preparing and selling products as a
cottage food operation has a Department of Public Health approved Food Service Sanitation Management Certificate.

(7) At the point of sale a placard is displayed in a
prominent location that states the following: “This product was produced in a home kitchen not subject to public health inspection that may also process common food allergens.”.

(c) Notwithstanding the provisions of subsection (b) of this Section, if the Department of Public Health or the health department of a unit of local government has received a consumer complaint or has reason to believe that an imminent health hazard exists or that a cottage food operation’s product has been found to be misbranded, adulterated, or not in compliance with the exception for cottage food operations pursuant to this Section, then it may invoke cessation of sales until it deems that the situation has been addressed to the satisfaction of the Department.
(d) Notwithstanding the provisions of subsection (b) of this Section, a State-certified local public health department may, upon providing a written statement to the Department of Public Health, regulate the service of food by a cottage food operation. The regulation by a State-certified local public health department may include all of the following requirements:
(1) That the cottage food operation (A) register with
the State-certified local public health department, which may include a reasonable fee set by the State-certified local public health department notwithstanding paragraph (5) of subsection (b) of this Section and (B) agree in writing at the time of registration to grant access to the State-certified local public health department to conduct an inspection of the cottage food operation’s primary domestic residence in the event of a consumer complaint or foodborne illness outbreak.

(2) That in the event of a consumer complaint or
foodborne illness outbreak the State-certified local public health department is allowed to (A) inspect the premises of the cottage food operation in question and (B) set a reasonable fee for that inspection.

(Source: P.A. 97-393, eff. 1-1-12.)

 

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Disecting the Illinois Drivers License Law – in progress….

I will try to make this as simple as possible, but you will have to pay very close attention and abandon everything you have previously believed regarding drivers licenses. Despite what you believe about what you “think” should be done to regulate others who use their vehicle for personal transportation, keep in mind that the government has not been endowed with general authority in requiring people to apply for, and possess, licenses for their private actions. There are words which you will need to pay close attention to, and not assume you know the meaning, since they have been specifically defined in the statutes. Words such as, “resident”, “natural person”, “State”, “licensee”, “drive, “motor vehicle”…etc. Do not automatically assume the words have the same meaning as your everyday usage. Do not automatically assume the definitions apply to you.

So, what does a driver’s license do? Well, by definition a license is permission to do something that is otherwise illegal.

http://legal-dictionary.thefreedictionary.com/license - The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a Trespass or a tort. The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.

Notice the word “privilege”. It is used throughout the statutes as well. You will often hear that “driving is a privilege”. In a sense, that is true, since driving is a specific activity and not necessarily what many of you do with your automobile.  Let’s look at what a privilege is:

http://legal-dictionary.thefreedictionary.com/privilege - privilege n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.

So, if privileges apply to a particular group or class of people, who are they? Well, first we have to look at just “who” can be regulated and what they are doing. This will fall under the state’s “police power“. What is the “police power”? It is the inherent power of the State to legislate for the healty, safety, welfare, and morals of its citizens.  It is primarily limited to businesses or professional occupations. Keep this in mind because I’ll refer back to it later.

 There are essentially two types of “persons”, residents and non-residents. We will first look at residents. A resident is defined thusly:

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

There are a couple of things to note. The use of the term “natural person” and “this State”. We know that corporations are considered persons under the law, and we assume that persons always includes people, but such is not the case. You must look at the object of the legislation and then at the definitions. A “person” may, in some cases depending on the legislation, mean only corporations. Likewise, “natural persons” to not mean only people. By the same token, “person” does not necessarily mean people. The Vehicle Code defines “person” as:

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation.
(Source: P.A. 76-1586.)

So, regarding “persons”, we have reference to natural persons, and corporate entities. Seeing as how they are hanging their hat on “natural persons”, we need to investigate how that is used throughout other laws.

Here are a couple of examples:

Under former clause 5 of ¶1 of former chapter 1 (now this paragraph) providing that the word “person” or “persons,” as well as all words referring to or importing persons, might extend and be applied to bodies politic and corporate as well as individuals, a dram shop license might be issued to a corporation as well as an individual. People, on Inf. of Healy v. Heidelberg Garden Co., 1908, 84 N.E. 230, 233 Ill. 290. Intoxicating Liquors

The word “parties” in the Venue Act (see, now, ch. 110, ¶501 et seq.) refers to and imports persons and includes corporations. Commercial Ins. Co. v. Mehlman, 1868, 48 Ill. 313, 95 Am.Dec. 543.

Corporations are included in the word “person” in the attachment law. Mineral Point R. Co. v. Keep, 1859, 22 Ill. 9, 74 Am.Dec. 124.

The term “natural person” or “natural persons,” used in the Banking Act (ch. 16 1/2 , ¶101 et seq.), extends to and applies to “bodies politic” and “corporate.” Fidelity Inv. Assn. v. Emmerson, 1924, 235 Ill.App. 518, reversed on other grounds 318 Ill. 548, 149 N.E. 530.

The word “company” in an act relating to the right to operate a street railway could not, under ¶1 of former chapter 1 (now this paragraph) be construed to include a natural person. Goddard v. Chicago & N.W. Ry. Co., 1903, 104 Ill.App. 526, affirmed 202 Ill. 362, 66 N.E. 1066.

The word “person” authorizes a recovery upon the complaint of a body politic or corporate. Durbin v. People, 1894, 54 Ill.App. 101.

A city was a “person” within Workmen’s Compensation Act, § 3 (ch. 48, ¶136, repealed), in view of ¶1 of former chapter 1 (now this paragraph). Smith v. City of Hamilton, 1924, 231 Ill.App. 482.

So, based on the foregoing, we cannot assume that a “natural person” necessarily means people in-general. It is reasonable to conclude that a natural person is a human being, but a human being acting as a representative for a corporation or having a duty as an officer of a corporation. Since you cannot impose a duty or obligation upon a incorporeal entity, like a corporation, you can upon an individual who is charged with executing the by-laws of the corpration. There must be a flesh-and-blood individual responsible for carrying forth the operations of the corporation.

If “persons” and “natural persons” may mean people, cities, corporations, how do we determine who is bound by the law? Let’s look at the definition further. A resident is distinguished by two means, the “natural person” and the “un-natural person”, aka, corporation. This illustrates what I have just explained above. However, pay attention to the location of residency. Natural persons reside in “this State” and corporations reside in the State of Illinois.

Natural Persons – (a) Every natural person who resides in this state shall be deemed a resident of this State.

Corporations not incorporated in the State of Illinois – (b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
Corporations Incorporated in the State of Illinois – (c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois

There are two things to note. Notice how in (a), there are two spellings of “this state”, one being with a lower case (s) state, and the other with an upper case (S) State. This is no accident, and when read actually makes no apparent sense. Here are a few ways to possibly interpret that phrase:

(a) Every human being who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in this state shall be deemed to be a resident of Illinois

(a) Every human being who resides in Illinois shall be deemed to be a resident of this State.

(a) Every human being who resides in this state shall be deemed to be a resident of Illinois

As you can see, it really makes no sense if “this state” and “this State” means the State of Illinois. So, what is “this (s)(S)tate”? In the case of natural persons, it is residency. In the case of corporations, it is their place of business or incorporation. If it applies to corporations the phrase “State of Illinois” is used, and in the case of natural persons it is “this state”.

We must determine what exactly a “state”/”State” is. I will prove that there is a state, other than the State of Illinois, which is used for the Illinois Vehicle Code. The Illinois Statutes define “State” differently in certain statutes.

(5 ILCS 70/1.14) (from Ch. 1, par. 1015)
 Sec. 1.14. “State,” when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words “United States” may be construed to include the said district and territories.
(Source: Laws 1945, p. 1717.)

5 ILCS 70/1.14 – § 1.14. “State,” when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words “United States” may be construed to include the said district and territories.

1. District of Columbia – The District of Columbia is a “state” within the proviso of ch. 110 1/2 , ¶6 (see, now, ch. 111, ¶5506), permitting certified public accountants holding certificates issued under laws of another “state” to practice in Illinois. Gore v. National Ass’n of Certified Public Accountants, 1924, 231 Ill.App. 38., 5 I.L.C.S. 70/1.14, IL ST CH 5 § 70/1.14

There are parts of the Illinois Compiled Statutes which have gone to lenghts to actually define “State”, or “this State”.

AIR TRANSPORTATION
(620 ILCS 5/) Illinois Aeronautics Act.
(620 ILCS 5/7) (from Ch. 15 1/2, par. 22.7)
http://033ffdb.netsolhost.com/mark/ilcs/ilcs3d5c4.html?ActID=1803&ChapterID=48
Sec. 7. “State” or “this State” means the State of Illinois; and “Department” means the Division of Aeronautics of the Department of Transportation of this State.
(Source: P.A. 81-840.)

We can infer from the use of state in other statutes that there is a difference between Illinois, and parts of the Unites States; meaning that things other than the several 50 states can be States. So far, we have determined that persons can be people or legal entities. We have also determined that, as far as the Vehicle Code is concerned, when referring to persons, the definition specifies “natural persons”, and that “natural persons” can be both people and legal enties. As an example, let’s look at another part of the Transporation Statutes, in this case, Roads and Bridges, and see how they define a “person”:

ROADS AND BRIDGES
(605 ILCS 5/) Illinois Highway Code.
(605 ILCS 5/2-216) (from Ch. 121, par. 2-216)
http://033ffdb.netsolhost.com/mark/ilcs/ilcs41783.html?DocName=060500050HArt.+2+Div.+2&ActID=1745&ChapterID=45&SeqStart=1100000&SeqEnd=3200000
Sec. 2-216. Person-Any person, firm, partnership, association, public or private corporation, organization or business or charitable trust.
(Source: Laws 1959, p. 196.)

I fail to find the term “natural person” used for the Illinois Highway Code. So, to what does that code apply? Does it apply to “this State”, or “the State of Illinois”?

(605 ILCS 5/1-103) (from Ch. 121, par. 1-103)
Sec. 1-103.
This Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction (1) of any department, board, commission or agency of this State other than the Department of Transportation or (2) of any municipal corporation other than a city, village or incorporated town.
(Source: P.A. 77-173.)

Now, this is telling in that the Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction of another agency of “this State” other than the Department of Transporation or of a municipal corporation other than a city, village, or incorporated town. It can also be worded to say, “This Code applies to all public highways in the State of Illinois except areas under the exclusive jurisdiction of something other than the Department of Transportation or a municipal corporation that is not a city, village, or town.” So, as far as the Illinois Highway Code is concerned, there are public highways in the State of Ilinois, and those under the exclusive jurisdiction of “this State”, or a municipal corporation other than a city, village, or incorporated town, which can include a municipal corporation of the Unites States which is also called a State, such as:

625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586

To complicate matters further, but to illustrate a dual and overlapping jurisdiction of state and federal authority, we will look at Illinois in another light, that being, as a federal territory:

DIVISION 1. SYSTEMS OF HIGHWAYS
http://033ffdb.netsolhost.com/mark/ilcs/ilcs4367d.html?DocName=060500050HArt.+2&ActID=1745&ChapterID=45&SeqStart=500000&SeqEnd=3200000
(605 ILCS 5/2-202) (from Ch. 121, par. 2-202)
Sec. 2-202. Highway-any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, or which has been or may be laid out and connect a subdivision or platted land with a public highway and which has been dedicated for the use of the owners of the land included in the subdivision or platted land where there has been an acceptance and use under such dedication by such owners, and which has not been vacated in pursuance of law. The term “highway” includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a “road”, while a highway in a municipal area may be called a “street”.
(Source: Laws 1959, p. 196.)

 Now, notice how there is a “Territory of Illinois” distinguished from “this State”. Illinois ceased being a territory with the Ordinance of 1818 when it was allowed statehood. However, the federal government has exclusive jurisdiction over its territories. Notice the “Source” date on the statute. It is 1959. There was no Illinois Territory in 1959, or was there? What exactly do they mean by Territory of Illinois? Let’s look at the definition of a “territory”:

http://legal-dictionary.thefreedictionary.com/territory
TERRITORY. Apart of a country, separated from the rest, and subject to a particular jurisdiction. The word is derived from terreo, and is so called because the magistrate within his jurisdiction has the power of inspiring a salutary fear. Dictum cat ab eo quod magistratus intra fines ejus terrendi jus habet. Henrion de Pansy, Auth. Judiciare, 98. In speaking of the ecclesiastical jurisdictions, Francis Duaren observes, that the ecclesiastics are said not to have territory, nor the power of arrest or removal, and are not unlike the Roman magistrates of whom Gellius says vocationem habebant non prehensionem. De Sacris Eccl. Minist. lib. 1, cap. 4. In the sense it is used in the constitution of the United States, it signifies a portion of the country subject to and belonging to the United States, which is not within the boundary of any of them.
     2. The constitution of the United States, art. 4, s. 3, provides, that “the congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States; and nothing in this constitution shall be construed, so as to preclude the claims of the United States or of any state.”
     3. Congress possesses the power to erect territorial governments within the territory of the United States; the power of congress over such territory is exclusive and universal, and their legislation is subject to no control, unless in the case of ceded territory, as far as it may be affected by stipulations in the cessions, or by the ordinance of 1787, 3 Story’s L. U. S. 2073, under which any part of it has been settled. Story on the Const. Sec. 1322; Rawle on the Const: 237; 1 Kent’s Com. 243, 359; 1 Pet. S. C. Rep. 511, 542, 517.
     4. The only organized territories of the United States are Oregon, Minnesota, New Mexico and Utah. Vide Courts of the United States.

This essentially says that a territory is separate from the rest of the country and subject to particular jurisdiction under the full control of Congress, including land ceded to the federal government and governed by stipulations. I posit, the stipulations are the accepting federal highway dollars for roads and other transportation uses, thereby subjecting the “highways” to the control of Congress, the area over which it legislates is referred to as, “this State”. I am speculating that when it comes to the drivers license, the State of Illinois does not have the right to license the use of roads under the jurisdiction of the United States, and any alleged violation for not possessing a license can be removed to federal court for lack of standing on the part of the state government.

Here is a sampling of how the federal monies are used over certain roads and the corresponding jurisdiction over those roads:

http://033ffdb.netsolhost.com/mark/ilcs/ilcs4c9b1.html?DocName=060500050HArt.+3&ActID=1745&ChapterID=45&SeqStart=3200000&SeqEnd=5200000
(605 ILCS 5/3-104.2) (from Ch. 121, par. 3-104.2)
Sec. 3-104.2. The Department, or the Department in cooperation with municipal corporate authorities or county authorities, is authorized to receive and expend, by agreement or otherwise, federal funds for the construction, reconstruction and improvement of public roads not on any Federal-aid system, being improved under the Federal Aid Road Act.
Any Federal-aid project as authorized in this Section may be undertaken jointly at the expense of the federal government and the State of Illinois, or jointly at the expense of the federal government, a municipality or municipalities, or a county or counties, or jointly at the expense of the federal government, the State of Illinois, a municipality or municipalities or a county or counties, or any of the above jointly with any other public or private entity or public utility.
The authority having jurisdiction over a public road not on any federal-aid system prior to its improvement as a federal-aid project shall continue to be responsible for maintenance, at its own expense.
For the purposes of this Section, “public road” means any road under the jurisdiction of and maintained by a public authority and open to public travel and which is not on a federal-aid system.
(Source: P.A. 84-298.) – (Notice how the term “State of Illinois” is used instead of “this State”)

I apologize if I have deviated from my original intent, but I feel that foundation is important in supporting my analysis. All of this will come together to help you realize that the drivers license laws, although initially under the control of the States as a valid exercise of their police power in licensing and regulating drivers (chaffeurs) who accept compensation for carrying on a business, has now, through federal encroachment, become a plenary object of congress and an agreement between the States and Federal Government to establish a murky jurisdiction. Remember, the Federal Government has no authority within the boundaries of a State without that sovereignty being waived or ceded to the Federal Government, and upon doing so, thereby creates an area of concurrent jurisdiction where a federal State is found within the boundaries of one of the several States. From this, grew the National Driver Register, mandatory seat-belt laws, sobriety checkpoints, and more.

I believe it can be further speculated, that the Governor of the State of Illinois violates his oath of office by acting as an ambassador/administrator for the Federal Government in binding the people to federal regulations without clear constitutional authority or mandate. The nail in the coffin is the Illinois Highway Safety Law. I will reference the law, the Governor’s role, and a telling phraseology of what “this State” is in relation to establishing a federal territory in the State of Illinois for the purpose of receiving federal highway funds, which then provide the nexus for federal regulations imposed upon the states.

(625 ILCS 5/Ch. 17 heading)
CHAPTER 17. ILLINOIS HIGHWAY SAFETY LAW
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(625 ILCS 5/17-101) (from Ch. 95 1/2, par. 17-101)
Sec. 17-101. Powers and duties of governor. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State is empowered to contract and to do all other things necessary in behalf of this State to secure the full benefits available to this State under the Federal Highway Safety Act of 1966, as amended, and in so doing, to cooperate with Federal and State agencies, agencies private and public, interested organizations, and with individuals, to effectuate the purposes of that enactment, and any and all subsequent amendments thereto. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. To that end he shall coordinate the activities of the Secretary of State and the State Board of Education and of any and all departments and agencies of this State and its subdivisions, relating thereto.
(Source: P.A. 81-1508.)

 Let’s analyze this statute line-by-line.

1. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State – The duties and responsibilities of the Governor of Illinois are conferred only by the Constitution of Illinois. The laws do not confer duties and responsibilities. His office is a Constitutional office and the duties and responsibilities are found in the Constitution of Illinois. I would argue that this statute is unconstitutional. The question is, what, exactly, are the duties and responsibilities conferred upon the Governor by “the laws of this State”, which is a federal territory or federal municipal corporation under the jurisdiction imposed by the Federal Highway Safety Act of 1966.

2. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. – This wording is very suspect, as how did the Governor become the “official of this State”, and where to the responsibilities for dealing with the Federal Government arise in the Illinois Constitution? Since the Governor is a creature of the Constitution, and his duties and obligations are Constitutinal in-nature, let’s look to the Constitution for any “offical of this State” designation or responsibility to the Federal Government:

Illinois Constitution
Article 5, SECTION 8. GOVERNOR—SUPREME EXECUTIVE POWER
http://www.ilga.gov/commission/lru/Ilconstitution.pdf
The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.
This is the first of several sections setting forth the powers of the Governor. This section states the powers that are most general. The Illinois Supreme Court has commented that this provision does not empower the Governor to establish new legal requirements by executive order or otherwise; as to persons not under his jurisdiction, he may only execute and enforce existing law.
The Governor does have control over agencies under him through his power to remove subordinates and his authority (recognized under Article 13, section 2) to establish ethical standards for agencies under him. – I see no obligation to the Federal Government imposed by the Illinois Constitution. I see no designation for “official of this State”, or any other such designation.

 What I think we have established, or have othewise made a very strong argument for or raised serious questions to, is the object and intent of the Drivers License laws, the proper jurisdiction involved, and whether this is a State law or Federal Law.

 As I said, this may have began with a proper exercise of the police power of the State in legislating for the health, safety, welfare, and morals of its Citizens, but has become something more invasive and encroaching. The issue is not whether we agree with the laws, or whether they serve any compelling state interest or protect public safety, it is by what authority do these laws exist? I’m going to go back to some of the earliest motor vehicle legislation and quote verbatim from that legislation, showing that in the beginning, the only objects of regulation were those using motor vehicles in the pursuit of a pecuniary benefit.

Smith’s Illinois Revised Statutes – 1921
Page 1720
MOTOR VEHICLES
AN ACT in relation to motor vehicles and to repeal a certain act therein named. [Approved June 30, 1919]
Page 1725
228. Chauffers – Regulations – License – Fees, etc.]
§27. An application for a license to operate motor vehicles as a chauffer, who is hereby defined to mean any person operating a

motor vehicle as a mechanic or employee, and who directly or indirectly receives pay or any compensation whatsoever
Page 1726
for any work or services in connection with the operation of a motor vehicle or the transportation of passengers or merchendise with a motor vehicle for hire or for pecuniary profit, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority….
(Last paragraph on left column of page)
No person shall operate or drive a motor vehicle as a chauffer upon a public highway of this State, unless such person shall have complied in all respects with the requirements of this section: Provided, however, that a non-resident chauffeur who has registered under the provisions of the law in force in the city, state, foreign country or province, territory or Federal district, of his residence, substantially equivalent to the provisions of this section shall be exempt from license hereunder, while temporarily sojouring within this State, only to the extent that under the laws of the city, state, foreign country or province, territory or Federal district of his residence like privileges are granted to persons duly licensed and registered as chauffeurs under the laws of this State, and who are residents of this State.
230. Chauffeur or operator must be licensed.]
§29. No person or corporation shall employ, as a chauffeur or operator of a motor vehicle, any person not specially licensed as aforesaid.

Smith-Hurd
Illinois Revised Statutes
With cross references
1923
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1925
Essentially the save verbiage.

Cahill Illinois Revised Statutes
Keyed to Annotated Statutes
1927
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1929
Essentially the save verbiage.

Illinois Revised Statutes
With cross references
1925
State Bar Association Edition
Chap. 95 1/2 section 33 Page 2125
32b. Licenses of chauffeurs for 1938.]
§26b. All the provisions of law in force prior to the passage of this amendatory Act relating to the licensing and regulation of chauffeurs shall remain in full force and effect with respect to all chaiffeurs licensed for the year 1938. The provisions of this amendatory Act relating to the licensing and regulation of chauffeurs shall not apply to chauffeurs so licensed for the year 1938. Added by act filed July 12, 1938. L.1938, First Sp.Sess., p.39.
S.H.A. 95 1/2 Section 32b; J.A. 85.032(2).
33. Chauffeurs – License – Application – Examination – Fee – Age – Form of license-school bus and vehicle of common carrier- Record in office of Secretary of State-Non-resident chauffeurs-Renewal of licenses.]
§27. An application for a license to operate a motor vehicle as a chauffeur, who is hereby defined to mean any person whose principal occupation is that of operating a motor vehicle as a mechanic or employee, or who directly or indirectly receives pay or any compensation whatsoever for any work or services in connection with the operation of a motor vehicle for the transportation of passengers or merchendise for hire, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority. Provided, however, that no person shall be held to be a chauffeur, and subject to the provisions hereof, who operates a motor vehicle incidentally to some other and principal occupation and where such motor vehicle is so perated solely in furtherance of such other and principal occupation and is not used for the transportation of passengers or merchendise for hire; and, provided, further, that no person shall b eheld to be a chauffeur and subject to the provisions hereof who operates a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States or who operates a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway; and, provided, further, that any garage which repairs or services motor vehicles and operates a service car shall have at least one licensed chauffeur who insofar as it is possible, shall take care of all testing and outside service work.

Chap. 95 1/2 section 33 Page 2126
34a. License as chauffeur or operator required – Exemptions.]
§28a. On and after May 1, 1939 in the case of operators and on and after January 1, 1939 in the case of chauffeurs, no person except those herinafter expressly exempted, shall drive any motor vehicle upon a highway in this State, unless such person has a valid license as an operator or chauffeur under the provisions of this Act, an operator being hereby defined to mean any person, other than a chauffeur, who is in actual physical control of a motor vechicle upon a highway. Any person holding a valid chauffeur’s license hereunder need not procure an operator’s license. Provided, however, that the following persons are exempt from the requirements of this section:
1. Any person while operating a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States;
2. Any person while driving or operating a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway;
3. A non-resident of this State who is at least fifteen years of age and who has in his immediate possession a valid operator’s license issued to him in his home State or Country, may operate a motor vehicle in this State only as an operator;
4. A non-resident who is at least eighteen years of age and who has in his immediate possesion a valid chauffeur’s license issued to him in his State or Country may operate a motor vehicle in this State either as an operator or chauffeur except that any such person must be licensed as a chauffeur hereunder before accepting employment as a chauffeur from a resident of this State;
5. Any non-resident who is at least fifteen years of age, whose home State or Country does not require the licensing of operators, while operating a motor vehicle as an operator only, for a period of not more than 90 days in any calendar year, if in the home State or Country of such non-resident.
The provisions of this section granting exemptions to non-residents shall be operative only when under the laws of this State, foreign country or province, territory or federal district of such non-resident, like exemptions and privileges are granted to licensed resident operators and chauffeurs of this State. Added by act filed July 12, 1938. L.1938, First Sp. Sess., p.39

This is where “Operators” came to be and to require licenses. This is the beginning of the “drivers license”.

Given the foregoing, let’s look at the current law and see just “who” is required to have a driver’s license:

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

Who, is exempt?

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(625 ILCS 5/6-102) (from Ch. 95 1/2, par. 6-102)
    Sec. 6-102. What persons are exempt. The following persons are exempt from the requirements of Section 6-101 and are not required to have an Illinois drivers license or permit if one or more of the following qualifying exemptions are met and apply:
        1. Any employee of the United States Government or any member of the Armed Forces of the United States, while operating a motor vehicle owned by or leased to the United States Government and being operated on official business need not be licensed;
        2. A nonresident who has in his immediate possession a valid license issued to him in his home state or country may operate a motor vehicle for which he is licensed for the period during which he is in this State;
        3. A nonresident and his spouse and children living with him who is a student at a college or university in Illinois who have a valid license issued by their home State.
        4. A person operating a road machine temporarily upon a highway or operating a farm tractor between the home farm buildings and any adjacent or nearby farm land for the exclusive purpose of conducting farm operations need not be licensed as a driver.
        5. A resident of this State who has been serving as a member of the Armed Forces of the United States outside the Continental limits of the United States, for a period of 90 days following his return to the continental limits of the United States.
        6. A nonresident on active duty in the Armed Forces of the United States who has a valid license issued by his home state and such nonresident’s spouse, and dependent children and living with parents, who have a valid license issued by their home state.
        7. A nonresident who becomes a resident of this State, may for a period of the first 90 days of residence in Illinois operate any motor vehicle which he was qualified or licensed to drive by his home state or country so long as he has in his possession, a valid and current license issued to him by his home state or country. Upon expiration of such 90 day period, such new resident must comply with the provisions of this Act and apply for an Illinois license or permit.
        8. An engineer, conductor, brakeman, or any other member of the crew of a locomotive or train being operated upon rails, including operation on a railroad crossing over a public street, road or highway. Such person is not required to display a driver’s license to any law enforcement officer in connection with the operation of a locomotive or train within this State.
    The provisions of this Section granting exemption to any nonresident shall be operative to the same extent that the laws of the State or country of such nonresident grant like exemption to residents of this State.
    The Secretary of State may implement the exemption provisions of this Section by inclusion thereof in a reciprocity agreement, arrangement or declaration issued pursuant to this Act.
(Source: P.A. 96-607, eff. 8-24-09.)

The power to license rests with the legislature, and their exercise of the police power. I believe the State of Illinois exceeds its police power authority in the current drivers license laws because it does not serve to protect the citizens from a threat to the health, safety, welfare, or morals; and is equally violative of the equal protection clause of the 14th Amendment in excluding some from complying with the licensing requirements. There can be no exclusion for some where the compelling state interest does not differentiate between classes of individuals in carrying forth the provisions of the law. In the case of Mahony v. Township of Hampton, 539 Pa. 193, 651 A.2d 525 (1994), Mahony argued that the government could not be exempt from one ordinance and he be obligated to it. By those under number 1. above being exempt with no rational basis in driver competency, I believe it is violative of the equal protection clause and an invalid exercise of the police power when causing some to be licensed and not others. In-fact, it can be said that the state fails in exercising its police powers because people now can renew their licenses without having to take a competency road test or exam every time their license expires. Theoretically, driver competency can diminish over this time and the state, thereby, places drivers “legally” upon the road who pose an articulable danger to other drivers.

…..More to come……….

 

TABLE OF AUTHORITIES/DEFINITIONS/CASES CITED

Illinois Vehicle Code Definitions:

(625 ILCS 5/1-154.1) (from Ch. 95 1/2, par. 1-154.1)
Sec. 1-154.1. Operate. To ride in or on, other than as a passenger, use or control in any manner the operation of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-154.2) (from Ch. 95 1/2, par. 1-154.2)
Sec. 1-154.2. Operator. Every person who operates or is in actual physical control of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-115.8)
Sec. 1-115.8. Drive. To drive, operate, or be in physical control of a motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-116) (from Ch. 95 1/2, par. 1-116)
Sec. 1-116. Driver.
Every person who drives or is in actual physical control of a vehicle.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-209.5)
Sec. 1-209.5. Transportation. The actual movement of property or passengers by motor vehicle, together with loading, unloading, and any other accessorial or ancillary service provided by the carrier in connection with movement by motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133) (from Ch. 95 1/2, par. 1-133)
Sec. 1-133. Interstate or Interstate Commerce.
Transportation between 2 or more States or transportation originating in one State and passing into or through other States for delivery in another State, and which is not intrastate.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-133.05)
Sec. 1-133.05. Interstate carrier of property. Any person who is engaged in the transportation of property only by motor vehicle in whole or in part in interstate or foreign commerce in this State either with or without authority issued from the Interstate Commerce Commission.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133.1) (from Ch. 95 1/2, par. 1-133.1)
Sec. 1-133.1. Interstate highway. Any highway which is now, or shall hereafter be, a part of the national system of interstate and defense highways within this State.
(Source: P.A. 85-830.)

(625 ILCS 5/1-134) (from Ch. 95 1/2, par. 1-134)
Sec. 1-134. Intrastate or Intrastate Commerce.
Transportation originating at any point or place within this State and destined to any other point or place within this State, irrespective of the route, highway or highways traversed, and including transportation which passes into or through another State before delivery is made within this State, and including any act of transportation which includes or completes a pickup within Illinois for delivery within Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-145) (from Ch. 95 1/2, par. 1-145)
Sec. 1-145. Motor carrier.
An operator of For-Hire vehicles pursuant to the Illinois Motor Carrier of Property Law.

(625 ILCS 5/1-122.5) (from Ch. 95 1/2, par. 1-124)
Sec. 1-122.5. For-hire. The operation of a vehicle for compensation and subject to federal regulation by the Interstate Commerce Commission or to state regulation by the Illinois Commerce Commission and those vehicles governed by Chapters 8 and 9 under this Code and regulated by the Secretary of State.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-153) (from Ch. 95 1/2, par. 1-153)
Sec. 1-153. Not-For-Hire.
Operation of a commercial vehicle in furtherance of any commercial or industrial enterprise but not For-Hire.
(Source: P.A. 76-1586.)

(625 ILCS 5/8-101) (from Ch. 95 1/2, par. 8-101)
Sec. 8-101. Proof of financial responsibility – Persons who operate motor vehicles in transportation of passengers for hire.
(a) It is unlawful for any person, firm or corporation to operate any motor vehicle along or upon any public street or highway in any incorporated city, town or village in this State for the carriage of passengers for hire, accepting and discharging all such persons as may offer themselves for transportation unless such person, firm or corporation has given, and there is in full force and effect and on file with the Secretary of State of Illinois, proof of financial responsibility provided in this Act. – (Source: P.A. 76-1586.)

(625 ILCS 5/1-207) (from Ch. 95 1/2, par. 1-207)
Sec. 1-207. Traffic.
Pedestrians, ridden or herded animals, vehicles, streetcars and other conveyances either singly or together while using any highway for purposes of travel.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-217) (from Ch. 95 1/2, par. 1-217)
Sec. 1-217. Vehicle. Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.
For the purposes of this Code, unless otherwise prescribed, a device shall be considered to be a vehicle until such time it either comes within the definition of a junk vehicle, as defined under this Code, or a junking certificate is issued for it.
For this Code, vehicles are divided into 2 divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those vehicles which are designed for carrying more than 10 persons, those designed or used for living quarters and those vehicles which are designed for pulling or carrying property, freight or cargo, those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division, and those motor vehicles of the First Division used and registered as school buses.
(Source: P.A. 92-812, eff. 8-21-02.)

(625 ILCS 5/1-146) (from Ch. 95 1/2, par. 1-146)
Sec. 1-146. Motor vehicle. 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, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles. For this Act, motor vehicles are divided into two divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those motor vehicles which are designed for carrying more than 10 persons, those motor vehicles designed or used for living quarters, those motor vehicles which are designed for pulling or carrying freight, cargo or implements of husbandry, and those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division.
(Source: P.A. 96-125, eff. 1-1-10.)

(625 ILCS 5/1-157) (from Ch. 95 1/2, par. 1-157)
Sec. 1-157. Passenger car.
A motor vehicle of the First Division including a multipurpose passenger vehicle, that is designed for carrying not more than 10 persons.
(Source: P.A. 78-343.)

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

(625 ILCS 5/6-112) (from Ch. 95 1/2, par. 6-112)
Sec. 6-112. License and Permits to be carried and exhibited on demand. Every licensee or permittee shall have his drivers license or permit in his immediate possession at all times when operating a motor vehicle and, for the purpose of indicating compliance with this requirement, shall display such license or permit if it is in his possession upon demand made, when in uniform or displaying a badge or other sign of authority, by a member of the State Police, a sheriff or other police officer or designated agent of the Secretary of State. However, no person charged with violating this Section shall be convicted if he produces in court satisfactory evidence that a drivers license was theretofor issued to him and was valid at the time of his arrest.
For the purposes of this Section, “display” means the manual surrender of his license certificate into the hands of the demanding officer for his inspection thereof.
(Source: P.A. 76-1749.)

(625 ILCS 5/1-138) (from Ch. 95 1/2, par. 1-138)
Sec. 1-138. License to drive.
Any driver’s license or any other license or permit to operate a motor vehicle issued under the laws of this State including:
1. Any temporary license or instruction permit;
2. The privilege of any person to drive a motor vehicle whether or not such person holds a valid license or permit.
3. Any nonresident’s driving privilege as defined herein.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-138.1) (from Ch. 95 1/2, par. 1-138.1)
Sec. 1-138.1. Licensee. A person licensed or required to be licensed under Sections 5-101, 5-102, 5-201 and 5-301 of this Code.
(Source: P.A. 83-1473.)

(625 ILCS 5/5-101) (from Ch. 95 1/2, par. 5-101)
Sec. 5-101. New vehicle dealers must be licensed.
(625 ILCS 5/5-102) (from Ch. 95 1/2, par. 5-102)
Sec. 5-102. Used vehicle dealers must be licensed.
(625 ILCS 5/5-201) (from Ch. 95 1/2, par. 5-201)
Sec. 5-201. Transporters must apply for in-transit plates.
(625 ILCS 5/5-301) (from Ch. 95 1/2, par. 5-301)
Sec. 5-301. Automotive parts recyclers, scrap processors, repairers and rebuilders must be licensed.

(625 ILCS 5/1-110) (from Ch. 95 1/2, par. 1-110)
Sec. 1-110. Cancellation of driver’s license.
The annulment or termination by formal action of the Secretary of a person’s driver’s license because of some error or defect in the license or because the licensee is no longer entitled to such license, but, with the exception of Sections 6-107, 6-108 and 6-201, the cancellation of a license is without prejudice and application for a new license may be made at any time after such cancellation.
(Source: P.A. 86-1450.)
(625 ILCS 5/6-107) (from Ch. 95 1/2, par. 6-107)
Sec. 6-107. Graduated license.
(625 ILCS 5/6-108) (from Ch. 95 1/2, par. 6-108)
Sec. 6-108. Cancellation of license issued to minor.
(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.

ARTICLE II. CANCELLATION, SUSPENSION, OR
REVOCATION OF LICENSES AND PERMITS

(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.
(a) The Secretary of State is authorized to cancel any license or permit upon determining that the holder thereof:
(SEE FULL CITATION)

(625 ILCS 5/6-202) (from Ch. 95 1/2, par. 6-202)
Sec. 6-202. Non-residents and Unlicensed Persons-Revocation and Suspension-Reporting Convictions.
(a) The privilege of driving a motor vehicle on highways of this State given to a nonresident hereunder and the privilege which an unlicensed person might have to obtain a license under this Act shall be subject to suspension or revocation by the Secretary of State in like manner and for like cause as a drivers license issued hereunder may be suspended or revoked.
(b) The Secretary of State is authorized, upon receiving a report of the conviction in this State of a nonresident driver of a motor vehicle of any offense under the laws of this State relating to operation, custody or ownership of motor vehicles, to forward a copy or abstract of such report to the motor vehicle administrator of the State wherein the person so convicted is a resident.
(c) (Blank.)
(d) This section is subject to the provisions of the Driver License Compact.
(Source: P.A. 96-962, eff. 7-2-10.)

(625 ILCS 5/6-206)
(Text of Section from P.A. 96-1551)
Sec. 6-206. Discretionary authority to suspend or revoke license or permit; Right to a hearing.
(a) The Secretary of State is authorized to suspend or revoke the driving privileges of any person without preliminary hearing upon a showing of the person’s records or other sufficient evidence that the person:
(SEE FULL CITATION)

(625 ILCS 5/6-209) (from Ch. 95 1/2, par. 6-209)
Sec. 6-209. Notice of Cancellation, Suspension or Revocation – Surrender and Return of License. The Secretary of State upon cancelling, suspending or revoking a license or permit shall immediately notify the holder thereof in writing and shall require that such license or permit shall be surrendered to and retained by the Secretary of State. However, upon payment of the reinstatement fee set out in subsection (g) of Section 6-118 at the end of any period of suspension of a license the licensee, if not ineligible for some other reason, shall be entitled to reinstatement of driving privileges and the return of his license if it has not then expired; or, in case it has expired, to apply for a new license.
(Source: P.A. 81-462.)

(625 ILCS 5/6-212) (from Ch. 95 1/2, par. 6-212)
Sec. 6-212. Court Review. The provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Secretary of State hereunder.
(Source: P.A. 82-783.)

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-115.6)
Sec. 1-115.6. Domiciliary. A person who is domiciled.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586.)

 

OTHER NOTES AND SOURCES

S.H.A. ch. 95½, §§ 6-101 et seq.
Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).
11 De Paul L.Rev. 125 (1961)

References 

§ 97. Nature and Effect of License; Transfer

Legal Encyclopedias

C.J.S., Motor Vehicles § 159
A license to operate a motor vehicle is a mere privilege.
A license to operate a motor vehicle on the public highways is a mere privilege and is not a property right. [Foot Note 38]

While the Illinois Driver Licensing Law no longer provides for chauffeur’s licenses, as discussed supra § 93, the licensing of chauffeurs was a grant, personal to the applicant, did not extend to anyone else, [Foot Note 39] and a chauffeur’s license was not transferable. [Foot Note 40]
    [Foot Note 38] See 1947 Op.Atty.Gen. 115.

    [Foot Note 39] Use by son of father’s license

    Boy under age of eighteen years, ineligible to obtain a chauffeur’s license, has no legal right to operate father’s taxicab, although father has a chauffeur’s license.—See 1926 Op.Atty.Gen. 507.

    [Foot Note 40] See 1916 Op.Atty.Gen. 910.
END OF SECTION
Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 9. Crimes and Prosecutions
B. Particular Offenses

Correlation Table  References 

§ 425. Driving without Driver’s License

Legal Encyclopedias

C.J.S., Motor Vehicles § 639(1)
It is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit.
Under the Illinois Vehicle Code, [Foot Note 97] and under some municipal ordinances, [Foot Note 98] it is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit. [Foot Note 99]

It is essential for a conviction of failure to have a driver’s license when operating a motor vehicle that there be proof beyond a reasonable doubt that the defendant was driving the automobile at the time in question. [Foot Note 1]
CUMULATIVE SUPPLEMENT

Cases:

Driver’s arrest outside jurisdiction of arresting officer was within officers statutory authority to arrest, where officer observed driver commit traffic infraction forming sufficient basis for stop while within officer’s jurisdiction and formed initial suspicion that driver was driving with suspended license while driver was within officer’s jurisdiction. People v. Schaefer, 343 Ill. App. 3d 159, 277 Ill. Dec. 600, 796 N.E.2d 686 (2d Dist. 2003).
[END]
4 Ill. Law and Prac. Automobiles and Motor Vehicles § 91

Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 4. Licensing and Regulation of Drivers
A. In General

References 

§ 91. General Considerations
AutomobilesKey Symbol130, 136, 145

Legal Encyclopedias

C.J.S., Motor Vehicles §§ 146 et seq.

Forms

Modern Legal Forms, Automobiles
No person except those expressly exempted may drive a motor vehicle on an Illinois highway unless he has a valid license or permit.
Under the Illinois Driver Licensing Law, which is part of the Illinois Vehicle Code of 1969, effective July 1, 1970, and which regulates the privilege of operating motor vehicles on the highways, no person except those expressly exempted shall drive any motor vehicle on a highway in the State of Illinois unless he has a valid license or permit, or a restricted license or permit, issued under the Act. [Foot Note 1]

The Secretary of State is charged with the administration of the Act and may make and enforce rules and regulations relating to its administration. [Foot Note 2]

The failure of a driver to have a license has no logical relevance to the issues of negligence or contributory negligence. [Foot Note 3]

Local regulations. Within constitutional limitations, municipalities may regulate and license drivers of motor vehicles to the extent that authority has been delegated by the General Assembly; [Foot Note 4] but any person licensed as a driver under the Driver Licensing Law may not be required by any city, village, incorporated town or other municipal corporation to obtain any other license to exercise the privilege thereby granted. [Foot Note 5]

Under the Cities and Villages Act, municipalities have the power to license, tax, and regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen, and all others pursuing like occupations, and to prescribe their compensation; [Foot Note 6] and motor trucks, motor driven commercial vehicles, and motor vehicles which are used for public hire are excepted from the prohibition of a municipal tax or license fee. [Foot Note 7]

The City of Chicago has the right to enact ordinances restricting the use of its streets as a place of business by taxicab drivers unless they are properly licensed. [Foot Note 8] It has been held that an ordinance which compels a person who uses his automobile for his private business and pleasure only to submit to an examination and to take out a license imposes a burden on one class of citizens in the use of the streets not imposed on the others, and that it is beyond the power of a municipality and void. [Foot Note 9]

In any event an ordinance which is unreasonable and arbitrary is invalid. [Foot Note 10]

Driver’s license medical review. A Driver’s License Medical Advisory Board has been established within the Office of Secretary of State, to establish standards for determining the degree to which a person’s medical condition constitutes a limitation to the person’s ability to operate a motor vehicle or causes the person to be a driving hazard. Cases shall be referred to the Board by the Secretary, for medical evaluation of the person under review, and to determine what medical conditions exist that may impair the individual’s ability to operate a motor vehicle safely. [Foot Note 10.5]

Driver’s duty to report medical condition. Every driver shall report to the Secretary any medical condition that is likely to cause loss of consciousness or any loss of ability to safely operate a motor vehicle within 10 days of the driver becoming aware of the condition. [Foot Note 10.10]
    [Foot Note 1] S.H.A. ch. 95½, §§ 6-101 et seq.

    S.H.A. ch. 95½, ¶¶6-101 et seq., is now 625 ILCS 5/6-101 et seq., recodified effective January 1, 1993.

    See 1958 Op.Atty.Gen. 218; 1961 Op.Atty.Gen. 16.

    Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).

    People v. Frye, 1983, 4 Dist., 447 N.E.2d 1065, 69 Ill.Dec. 630, 113 Ill.App.3d 853 (possession of valid license at any time is prima facie proof that holder must have driven upon highways of state as predicate for application of implied consent statute).

    [Foot Note 2] S.H.A. ch. 95½, § 6-211.

    S.H.A. ch. 95½, ¶6-211, is now 625 ILCS 5/6-211, recodified effective January 1, 1993.

    Revocation of driving school license

    Perez v. Edgar, 1982, 436 N.E.2d 639, 62 Ill.Dec. 613, 106 Ill.App.3d 981.

    [Foot Note 3] Perry v. Richerson, 1954, 122 N.E.2d 75, 3 Ill.App.2d 338.

    [Foot Note 4] Power conferred by charter

    City of Chicago Charter, § 1, cls. 7, 9, 66, delegating police power to the city, and giving power over its streets, authorized it to pass Code Ordinances 1911, § 2696, prohibiting the use of automobiles in the transportation of passengers or merchandise by a person not competent who has not been examined and licensed.—City of Chicago v. Kluever, 1913, 100 N.E. 917, 257 Ill. 317.

    [Foot Note 5] S.H.A. ch. 95½, § 6-101(c).

    S.H.A. ch. 95½, ¶6-101(c), is now 625 ILCS 5/6-101(c), recodified effective January 1, 1993.

    [Foot Note 6] S.H.A. ch. 24, § 11-42-6.

    S.H.A. ch. 24, ¶11-42-6, is now 65 ILCS 5/11-42-6, recodified effective January 1, 1993.

    [Foot Note 7] S.H.A. ch. 24, § 8-11-4.

    S.H.A. ch. 24, ¶8-11-4, was amended in 1983 (provision deleted).

    Ordinance requiring license

    Cities and villages may adopt ordinances not inconsistent with Motor Vehicle Law requiring all persons operating cars for public hire or commercial purposes to secure a license so to do.—See 1914 Op.Atty.Gen. 1131.

    [Foot Note 8] City of Chicago v. Dorband, 1939, 18 N.E.2d 107, 297 Ill.App. 617.

    People v. Thompson, 1922, 225 Ill.App. 567.

    [Foot Note 9] City of Chicago v. Banker, 1904, 112 Ill.App. 94 (Chicago ordinance of June 30, 1902).

    [Foot Note 10] Ambulance driver

    Portion of ordinance prohibiting issuance of ambulance attendant-driver’s license to any person at any time after conviction of crime involving use of deadly weapon, traffic in narcotic drugs, infamous crime against nature, incest or rape did not bear any relationship to public health or safety, was unreasonable and arbitrary and was invalid as to ambulance attendant-driver who owned ambulance service and had been convicted of armed robbery 17 years prior to application for license.—Roth v. Daley, 1970, 256 N.E.2d 166, 119 Ill.App.2d 462.

    [Foot Note 10.5] S.H.A. ch. 95½ ¶¶6900 et seq. is now 625 ILCS 5/6-900 et seq., recodified in 1993.

    S.H.A. ch. 95½, ¶¶6-900 et seq., added in 1992.

    [Foot Note 10.10] 625 ILCS 5/6-116.5, added in 1996.
IL-LP AUTOS § 91

END OF SECTION

C.J.S., Motor Vehicles §§ 146 et seq.

60 C.J.S. Motor Vehicles § 262

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary  Correlation Table 

§ 262. Generally

License regulations apply to the driver of a motor vehicle, and must be complied with by all coming within the terms of such regulations.
Generally, by virtue of statutory provisions or regulations, only persons who hold licenses as chauffeurs or operators may lawfully operate or drive motor vehicles upon the public highways.[Foot Note 1] Where the operator of a private commercial carrier is obligated by law to obtain a commercial driver’s license, this requirement applies to all persons regularly engaged as operators of such carriers.[Foot Note 2] In some jurisdictions, a person who operates a motor vehicle for hire must obtain a special license,[Foot Note 3] but if a vehicle is operated for purposes other than furnishing transportation for hire no special license is required.[Foot Note 4]

Where every operator is required to obtain a license, the license is personal to the particular person who operates the motor vehicle and must be obtained by, and issued to, him or her.[Foot Note 5] Therefore, a corporation or partnership which owns or controls a motor vehicle is not entitled to a license to operate it.[Foot Note 6]

Where statutorily provided that no person may operate a motor vehicle for hire or as a chauffeur unless specially licensed so to do, an owner who is licensed merely as an operator, and not as a chauffeur, is not authorized to operate his or her automobile for hire.[Foot Note 7] However, a person holding a license as a commercial operator or chauffeur is not required to have an ordinary operator’s license.[Foot Note 8]

Unless expressly exempted, state officers and employees come within the requirements of licensing provisions broad enough in their terms to include such persons.[Foot Note 9] A municipality operating busses running through another city is required to comply with reasonable regulations concerning the qualifications of drivers of such busses.[Foot Note 10]
Steering towed car.

A person steering a disabled motor vehicle which is being towed by another car is not operating or driving a motor vehicle within the meaning of a statutory provision requiring an operator or driver to be licensed.[Foot Note 11]
    [Foot Note 1] Tex.—Leatherman v. Starkey, 356 S.W.2d 151 (Tex. Civ. App. Amarillo 1962), writ refused n.r.e., (Oct. 6, 1962).

    Intent to change residence as affecting residence, see C.J.S., Domicile §§ 14 to 17.

    License not required for driver on unfinished road

    W.Va.—State v. Boyles, 112 W. Va. 125, 163 S.E. 814 (1932).
    No operating or driving where vehicle not started

    N.Y.—Ricciardi v. McMahon, 163 Misc. 659, 299 N.Y.S. 440 (City Ct. 1937).
    Intention to change residence

    D.C.—Bush v. District of Columbia, 78 A.2d 234 (Mun. Ct. App. D.C. 1951).

    [Foot Note 2] Driver employed by railroad

    Miss.—Lumpkin v. Birdsong, 212 Miss. 616, 55 So. 2d 230 (1951).

    [Foot Note 3] Operation for hire construed

    R.I.—State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

    [Foot Note 4] R.I.—State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

    [Foot Note 5] N.H.—Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

    Legal name requirement valid

    U.S.—Forbush v. Wallace, 341 F. Supp. 217 (M.D. Ala. 1971), judgment aff’d, 405 U.S. 970, 92 S. Ct. 1197, 31 L. Ed. 2d 246 (1972).

    [Foot Note 6] N.H.—Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

    Registration of the vehicle in corporate or partnership name, see § 168.

    [Foot Note 7] Mass.—Griffin v. Hustis, 234 Mass. 95, 125 N.E. 387 (1919).

    [Foot Note 8] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 9] Mo.—City of St. Louis v. Carpenter, 341 S.W.2d 786, 87 A.L.R.2d 1219 (Mo. 1961).

    [Foot Note 10] Ohio—Cleveland Ry. Co. v. Village of North Olmsted, 130 Ohio St. 144, 4 Ohio Op. 31, 198 N.E. 41, 101 A.L.R. 426 (1935).

    [Foot Note 11] Ohio—City of Toledo v. Burks, 100 Ohio App. 127, 60 Ohio Op. 104, 136 N.E.2d 150 (6th Dist. Lucas County 1955).
END OF SECTION
60 C.J.S. Motor Vehicles § 256

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary  Correlation Table 

§ 256. Purpose

Motor vehicle operators and chauffeurs are generally licensed by the state in the interest of public safety.
Generally, the purposes of requiring chauffeurs and operators to be licensed are to insure the competency of the operators of motor vehicles and to regulate the use of this means of rapid transit on the public highways, in the interest of public safety.[Foot Note 1] It is also the purpose of such licensing to furnish a further guaranty that proper use of the vehicle will be made,[Foot Note 2] and that it will be operated in compliance with applicable statutory provisions.[Foot Note 3] The purpose of requiring the operator of a motor vehicle to report changes of address to the commissioner of motor vehicles is identification of drivers and the facilitation of communication with them.[Foot Note 4]
    [Foot Note 1] Nev.—State, Dept. of Motor Vehicles and Public Safety v. Miles, 111 Nev. 681, 895 P.2d 1316 (1995).

    [Foot Note 2] State may make and enforce regulations reasonably calculated to promote care

    Neb.—Russell v. State, Dept. of Motor Vehicles, 247 Neb. 885, 531 N.W.2d 212 (1995).

    [Foot Note 3] N.H.—Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

    Purpose of requirement that epilepsy patients be disclosed to licensing authority

    U.S.—Harden v. Allstate Ins. Co., 883 F. Supp. 963 (D. Del. 1995).

    [Foot Note 4] Conn.—State v. Baltromitis, 5 Conn. Cir. Ct. 72, 242 A.2d 99 (App. Div. 1967).
END OF SECTION
60 C.J.S. Motor Vehicles § 257

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary  Correlation Table 

§ 257. Right to operate as privilege
AutomobilesKey Symbol130, 132 to 136, 143
The right to operate a motor vehicle is, generally, a privilege, not a right.
A license is, generally, merely a personal privilege,[Foot Note 1] which may be revoked.[Foot Note 2] Where a license is deemed a personal privilege, it is not a vested right,[Foot Note 3] nor is it considered a natural right[Foot Note 4] or a civil right.[Foot Note 5] A driver’s license is also not a contract or property right[Foot Note 6] in any legal or constitutional sense.[Foot Note 7] Neither is it a right of such a nature that it may be sold or assigned.[Foot Note 8] The payment by the licensee of the required fees upon the issuance to him or her of the operator’s license does not convert the privilege granted into a property right.[Foot Note 9]

In some jurisdictions, however, while still recognizing that a license is a personal privilege, a license is deemed in the nature of a right.[Foot Note 10] In other jurisdictions, a license is both a personal privilege and a property right.[Foot Note 11] In still other jurisdictions, a license to operate a motor vehicle is more of a property interest.[Foot Note 12] A license may also be determined to be a vested property right in the individual.[Foot Note 13]
    [Foot Note 1] La.—State v. Jackson, 764 So. 2d 64 (La. 2000).

    Highway driving a privilege, not a right

    Ill.—People v. Jung, 192 Ill. 2d 1, 248 Ill. Dec. 258, 733 N.E.2d 1256 (2000).
    Privilege not constitutionally guaranteed

    N.D.—North Dakota Dept. of Transp. v. DuPaul, 487 N.W.2d 593 (N.D. 1992).
    Conditional privilege

    Va.—Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).
    Important and valued privilege

    Vt.—Bolio v. Malloy, 126 Vt. 424, 234 A.2d 336 (1967).
    Limited right

    Pa.—Com. v. Vivio, 209 Pa. Super. 90, 224 A.2d 777 (1966).
    Qualified right

    Mo.—Blydenburg v. David, 413 S.W.2d 284 (Mo. 1967).

    [Foot Note 2] Mont.—Nelson v. Driscoll, 1999 MT 193, 295 Mont. 363, 983 P.2d 972 (1999).

    Revocation or suspension of license, generally, see §§ 290to 293.

    [Foot Note 3] Cal.—O’Connor v. Superior Court, 90 Cal. App. 3d 107, 153 Cal. Rptr. 306 (1st Dist. 1979).

    Not right entitled to protection against governmental interference or restriction

    Colo.—People v. Zinn, 843 P.2d 1351 (Colo. 1993).

    [Foot Note 4] Kan.—State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000).

    Not absolute right

    Ohio—Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

    [Foot Note 5] Tex.—Allen v. State, 410 S.W.2d 52 (Tex. Civ. App. Houston 1966).

    [Foot Note 6] Ohio—Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

    [Foot Note 7] Cal.—Department of Motor Vehicles v. Superior Court, 58 Cal. App. 3d 936, 130 Cal. Rptr. 311 (1st Dist. 1976).

    [Foot Note 8] N.Y.—City of Rochester v. Falk, 170 Misc. 238, 9 N.Y.S.2d 343 (City Ct. 1939).

    [Foot Note 9] Kan.—State v. Finley, 198 Kan. 585, 426 P.2d 251 (1967), opinion withdrawn on other grounds on reh’g, 199 Kan. 615, 433 P.2d 414 (1967).

    License fees, see §§ 281to 283.

    [Foot Note 10] N.D.—State ex rel. Hjelle v. A Motor Vehicle Described as a 1973 Brockway Tractor License No. 237342, Serial No. 79629, Trailer SN No. 75-2531-LB-150, 299 N.W.2d 557 (N.D. 1980).

    Nonfundamental right

    Va.—Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).

    [Foot Note 11] Pa.—Com., Dept. of Transp., Bureau of Traffic Safety v. Quinlan, 47 Pa. Commw. 214, 408 A.2d 173 (1979).

    [Foot Note 12] W.Va.—Abshire v. Cline, 193 W. Va. 180, 455 S.E.2d 549 (1995).

    Substantial right

    N.Y.—Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
    Real value

    N.Y.—Schutt v. MacDuff, 205 Misc. 43, 127 N.Y.S.2d 116 (Sup 1954).

    [Foot Note 13] N.Y.—People v. Emmanuel, 82 Misc. 2d 298, 368 N.Y.S.2d 773 (City Crim. Ct. 1975).

    Substantial property interest that may not be deprived without due process of law

    N.Y.—Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
    Basis of change in view from privilege to vested property right

    N.Y.—People v. McAnarney, 28 Misc. 2d 778, 210 N.Y.S.2d 340 (County Ct. 1961).
END OF SECTION

60 C.J.S. Motor Vehicles § 260

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
2. Power to License

Topic Summary  Correlation Table 

§ 260. State

Within constitutional limits, a state legislature may require drivers of motor vehicles on the public highways to be licensed and may impose reasonable conditions under which the license is to be issued.
The granting or withholding of licenses to operators of motor vehicles is a method of exercise of the state’s regulatory power over public highways.[Foot Note 1] The state legislature, under this power, has control of the licensing of those who, as chauffeurs or operators, drive such vehicles.[Foot Note 2] In the absence of constitutional restrictions, it may require that, before a person is entitled to operate or drive a motor vehicle upon the public highways, he or she must obtain a license as a chauffeur or operator and pay a prescribed license fee.[Foot Note 3]

In the exercise of this power, the legislature may classify the persons to whom the prescribed regulations will apply, provided such classification is not unreasonable and arbitrary.[Foot Note 4] Thus, the legislature may reasonably distinguish between individuals on the basis of maturity and judgment, physical capacity or ability, and similar matters which would affect the competency of a person to safely operate a motor vehicle upon the highway.[Foot Note 5] The state may prescribe the conditions under which the privilege of operating such vehicles may be granted[Foot Note 6] and exercised.[Foot Note 7] The legislature may reserve this power exclusively to the state[Foot Note 8] in order to establish, throughout the state, a uniform system regarding the licensing of chauffeurs and operators.[Foot Note 9] The legislature may also vest exclusive authority to issue licenses in a state board or commission.[Foot Note 10] Additionally, a legislature may be authorized to enact a statutory provision granting state courts the right to issue judicial driving permits.[Foot Note 11]
    [Foot Note 1] N.C.—Smith v. Walsh, 34 N.C. App. 287, 238 S.E.2d 157 (1977).

    Purpose

    Ohio—City of Kettering v. Baker, 42 Ohio St. 2d 351, 71 Ohio Op. 2d 322, 328 N.E.2d 805 (1975).

    [Foot Note 2] Mich.—Nicholas v. Secretary of State, 74 Mich. App. 64, 253 N.W.2d 662 (1977).

    [Foot Note 3] U.S.—Wood v. Wm. B. Reilly & Co., 40 F. Supp. 507 (N.D. Ga. 1941).

    Persons subject to license regulations, generally, see §§ 262to 264.

    License fees, generally, see §§ 281to 283.

    [Foot Note 4] Cal.—Ex parte Stork, 167 Cal. 294, 139 P. 684 (1914).

    Taxicab license

    Wash.—Tarver v. City Commission In and For City of Bremerton, 72 Wash. 2d 726, 435 P.2d 531 (1967).

    [Foot Note 5] Wash.—State v. Scheffel, 82 Wash. 2d 872, 514 P.2d 1052 (1973).

    Qualifications or eligibility for license, generally, see §§ 268to 271.

    [Foot Note 6] S.D.—Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351 (1969).

    Reasonable regulation

    U.S.—Quetawki v. Prentice, 303 F. Supp. 737 (D.N.M. 1968).

    [Foot Note 7] N.Y.—People v. Frank, 61 Misc. 2d 450, 305 N.Y.S.2d 940 (Sup 1969).

    [Foot Note 8] Tex.—Ball v. City of McKinney, 286 S.W. 341 (Tex. Civ. App. Dallas 1926), writ refused, (Nov. 10, 1926).

    [Foot Note 9] N.Y.—Boord v. Wallander, 195 Misc. 557, 89 N.Y.S.2d 796 (Sup 1949), judgment modified on other grounds, 277 A.D. 253, 98 N.Y.S.2d 1 (1st Dep’t 1950), judgment aff’d on other grounds, 302 N.Y. 890, 100 N.E.2d 177 (1951).

    [Foot Note 10] Neb.—Johnston v. Department of Motor Vehicles, 190 Neb. 606, 212 N.W.2d 342 (1973).

    Duty as to medically suspect drivers

    La.—Fowler v. Roberts, 526 So. 2d 266 (La. Ct. App. 2d Cir. 1988), writ denied, 531 So. 2d 278 (La. 1988) and writ granted, 531 So. 2d 257 (La. 1988) and judgment aff’d, 556 So. 2d 1 (La. 1989).
    Control over other governmental agencies

    Cal.—Yeoman v. Department of Motor Vehicles, 273 Cal. App. 2d 71, 78 Cal. Rptr. 251 (4th Dist. 1969).

    [Foot Note 11] Ill.—People v. Inghram, 118 Ill. 2d 140, 113 Ill. Dec. 65, 514 N.E.2d 977 (1987).
END OF SECTION
60 C.J.S. Motor Vehicles V Refs.

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs

Topic Summary  Correlation Table 

Research References
Drinking/Driving Litigation Criminal and Civil (2d ed.) (DRNKDRIVING)

A.L.R. Library

West’s A.L.R. Digest, AutomobilesKey Symbol129 to 145
A.L.R. Index: Automobiles and Highway Traffic; Certificates of Title; Driver’s Licenses; Driving While Under the Influence of Drugs; Guest Statute; Passengers; Pedestrians; Reckless Driving; Speed and Speeding; Traffic Offenses and Violations
Denial Of Accused’s Request For Initial Contact With Attorney—Drunk Driving Cases, 109 A.L.R. 5th 611
Admissibility, In Motor Vehicle License Suspension Proceedings, Of Evidence Obtained By Unlawful Search And Seizure, 23 A.L.R. 5th 108
Validity And Application Of Statute Or Regulation Authorizing Revocation Or Suspension Of Driver’s License For Reason Unrelated To Use Of, Or Ability To Operate, Motor Vehicle, 18 A.L.R. 5th 542
Automobiles: Necessity Or Emergency As Defense In Prosecution For Driving Without Operator’s License Or While License Is Suspended, 7 A.L.R. 5th 73
Validity, Construction, Application, And Effect Of Statute Requiring Conditions, In Addition To Expiration Of Time, For Reinstatement Of Suspended Or Revoked Driver’s License, 2 A.L.R. 5th 725
Automobiles: Validity And Construction Of Legislation Authorizing Revocation Or Suspension Of Operator’s License For “Habitual”, “Persistent”, Or “Frequent” Violations Of Traffic Regulations, 48 A.L.R. 4th 367
Construction And Effect Of Statutes Which Make Parent, Custodian, Or Other Person Signing Minor’s Application For Vehicle Operator’s License Liable For Licensee’s Negligence Or Willful Misconduct, 45 A.L.R. 4th 87

Treatises and Practice Aids

Nichols Drinking/Driving Litigation: Criminal and Civil (2d ed.) §§ 7:1 to 7:25, 8:1 to 8:5, 9:14, 9:27, 11:1, 11:16 to 11:19, 11:30, 11:37

END OF SECTION
60 C.J.S. Motor Vehicles § 263

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary  Correlation Table 

§ 263. Chauffeur or operator
AutomobilesKey Symbol129, 130, 132 to 137
A distinction is sometimes recognized between an operator and a chauffeur, as “chauffeur” often refers to one who is paid for driving an automobile.
In some jurisdictions, a distinction is made between a chauffeur and an operator. An operator is any person, other than a chauffeur, who operates or drives a motor vehicle.[Foot Note 1] A person need not be a chauffeur in order to secure a chauffeur’s license.[Foot Note 2] The fact that a driver holds such a license does not necessarily make such driver a chauffeur, unless he or she receives pay for the services.[Foot Note 3] Therefore, one who holds a chauffeur’s license, but is not a chauffeur, and who drives upon the highway may be just an operator.[Foot Note 4]

The term chauffeur has a general meaning, as well as a restrictive meaning.[Foot Note 5] In the general sense, a chauffeur is one who operates and propels,[Foot Note 6] or drives and operates,[Foot Note 7] or manages the running of,[Foot Note 8] an automobile. In a more restricted sense, a chauffeur is a person who drives an automobile for hire.[Foot Note 9] Chauffeur may also have different meanings, dependent on the terms of the statutory provision in which it appears.[Foot Note 10] As used in regulations requiring a person who desires to operate a motor vehicle as a chauffeur, or as a paid operator, first to obtain a chauffeur’s or driver’s license, it means a paid operator or employee, that is, a person who is employed and paid by the owner of a motor vehicle to drive and attend to the car.[Foot Note 11] In such case, the term chauffeur does not include operators who are not employed and paid for operating the motor vehicle.[Foot Note 12] Moreover, it does not include an employee who receives his or her compensation for services rendered, other than the operation of motor vehicles, although in performing such services he or she may incidentally operate a motor vehicle.[Foot Note 13] An employee of a public utility, who incidentally uses a motor vehicle in his or her business of repair, is not a chauffeur, and is not required to obtain a chauffeur’s license.[Foot Note 14] There is, however, authority to the contrary.[Foot Note 15]

Owner as driver.

An owner of a motor vehicle who has obtained an operator’s license may not, unless otherwise permitted, drive his or her vehicle as a public service vehicle for hire without a chauffeur’s license.[Foot Note 16] An owner who acts as an independent contractor in the operation of his or her vehicle is not, however, required to take out a chauffeur’s license.[Foot Note 17] This includes a person who, in delivering goods for one person, drives a motor vehicle which he or she has borrowed from a third person.[Foot Note 18]
    [Foot Note 1] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 2] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 3] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    Whether driver is chauffeur dependent on terms of applicable statutory provision, see § 263.

    [Foot Note 4] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 5] La.—Day v. Bush, 18 La. App. 682, 139 So. 42 (2d Cir. 1932).

    [Foot Note 6] Mo.—State v. Swagerty, 203 Mo. 517, 102 S.W. 483 (1907).

    [Foot Note 7] Ill.—Christy v. Elliott, 216 Ill. 31, 74 N.E. 1035 (1905).

    [Foot Note 8] Neb.—Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

    [Foot Note 9] Neb.—Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

    [Foot Note 10] Ala.—Turner v. State, 226 Ala. 269, 146 So. 601 (1933).

    Uniformed patrolmen not chauffeurs

    Mo.—State ex rel. Beach v. Beach, 325 Mo. 175, 28 S.W.2d 105 (1930).
    American soldier not chauffeur

    Tex.—American Automobile Ins. Co. v. Struwe, 218 S.W. 534 (Tex. Civ. App. San Antonio 1920), writ refused, (Apr. 6, 1921).

    [Foot Note 11] U.S.—State of Md. for Use of Weaver v. O’Brien, 140 F. Supp. 306 (D. Md. 1956).

    Test

    U.S.—Maryland Cas. Co. v. Cronholm, 32 F. Supp. 375 (S.D. Tex. 1940), judgment aff’d on other grounds, 116 F.2d 494 (C.C.A. 5th Cir. 1940).

    [Foot Note 12] Ky.—Winslow v. Everson, 221 Ky. 430, 298 S.W. 1084 (1927).

    [Foot Note 13] W.Va.—State v. Wimmer, 117 W. Va. 498, 186 S.E. 133, 105 A.L.R. 67 (1936).

    Services of son

    Cal.—Hunton v. California Portland Cement Co., 50 Cal. App. 2d 684, 123 P.2d 947 (4th Dist. 1942).

    [Foot Note 14] N.Y.—People v. Dennis, 166 N.Y.S. 318 (County Ct. 1915).

    [Foot Note 15] N.Y.—People v. Fulton, 96 Misc. 663, 162 N.Y.S. 125 (County Ct. 1916).

    [Foot Note 16] Mo.—Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89 (1920).

    Chauffeur defined

    Tex.—Peniche v. Aeromexico, 580 S.W.2d 152 (Tex. Civ. App. Houston 1st Dist. 1979).

    [Foot Note 17] N.Y.—People v. Ritter, 120 Misc. 852, 200 N.Y.S. 816 (County Ct. 1922).

    [Foot Note 18] Ind.—A. E. Norris Coal Co. v. Jackson, 80 Ind. App. 423, 141 N.E. 227 (Div. 1 1923).

 CJS MOTORVEH § 263

END OF SECTION

 

NOTES ON POLICE POWER

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
VIII. Police Power
A. In General

Topic Summary  References 

§   610. Nature of power

 Constitutional Law   81

The police power is a governmental function, an inherent attribute of sovereignty, which exists without any reservation in the constitution as an essential element in all orderly governments.

 The police power is a governmental function,[FN1] an inherent attribute of sovereignty,[FN2] and the greatest and most powerful attribute of government.[FN3] Although the basis of the police power lies in the constitution which regards the public welfare, safety, and health of the citizens of the state,[FN4] and although it may be given to the people of the state by the constitution,[FN5] the power exists without any reservation in the constitution,[FN6] being founded on the duty of the state to protect the health, safety, and welfare of its citizens.[FN7]

The police power, in its nature, is very broad and comprehensive,[FN8] and the laws enacted for the purpose of regulation thereunder may be impolitic, harsh, and oppressive.[FN9] It corresponds to the right of self-preservation in the individual,[FN10] and is an essential element in all orderly governments,[FN11] because it is necessary to the proper maintenance of the government and the general welfare of the community.[FN12]

The power comprehends reasonable preventative measures no less than the punishment of perpetrated offenses,[FN13] and it may act to prevent apprehended dangers as well as to control those already existing.[FN14] The police power depends on the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property, and it has been said to be the very foundation on which our social system rests.[FN15] It has for its object the improvement of economic[FN16] and social conditions affecting the community at large and collectively with a view of bringing about “the greatest good of the greatest number.”[FN17]

The constitution presupposes the existence of the police power and is to be construed with reference to that fact,[FN18] and police regulations presuppose conditions which, unless controlled, will operate to a public disadvantage.[FN19]

 [FN1] U.S.—Aldens, Inc. v. LaFollette, 552 F.2d 745 (7th Cir. 1977).

Ala.—City of Decatur v. Robinson, 251 Ala. 99, 36 So. 2d 673 (1948).

[FN2] U.S.—City of El Paso v. Simmons, 379 U.S. 497, 85 S. Ct. 577, 13 L. Ed. 2d 446 (1965).

Cal.—Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc., 91 Cal. App. 4th 678, 110 Cal. Rptr. 2d 708 (1st Dist. 2001), as modified on denial of reh’g, (Sept. 13, 2001).

Colo.—CF & I Steel, L.P. v. United Steel Workers of America (USWA), 74 P.3d 513 (Colo. Ct. App. 2003).

Okla.—Fine Airport Parking, Inc. v. City of Tulsa, 2003 OK 27, 71 P.3d 5 (Okla. 2003).

Exercise not dependent on emergency

Police power is permanent right of sovereignty, and its exercise is not dependent on emergency.

N.J.—In re North Jersey Title Ins. Co., 120 N.J. Eq. 148, 184 A. 420 (Ch. 1936), aff’d, 120 N.J. Eq. 608, 187 A. 146 (Ct. Err. & App. 1936).

[FN3] Pa.—Com. v. Widovich, 295 Pa. 311, 145 A. 295 (1929).

[FN4] U.S.—Ziffrin, Inc. v. Martin, 24 F. Supp. 924 (E.D. Ky. 1938), aff’d, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128 (1939) (abrogated on other grounds by, Granholm v. Heald, 125 S. Ct. 1885, 161 L. Ed. 2d 796 (U.S. 2005)).

[FN5] Vt.—Sowma v. Parker, 112 Vt. 241, 22 A.2d 513 (1941).

[FN6] Ohio—Vincent v. Elyria Bd. of Ed., 7 Ohio App. 2d 58, 36 Ohio Op. 2d 151, 218 N.E.2d 764 (9th Dist. Lorain County 1966).

Tex.—Martin v. Wholesome Dairy, Inc., 437 S.W.2d 586 (Tex. Civ. App. Austin 1969), writ refused n.r.e., (June 25, 1969).

Wash.—Reesman v. State, 74 Wash. 2d 646, 445 P.2d 1004 (1968).

Not referable to any single provision

Md.—Smith v. Higinbothom, 187 Md. 115, 48 A.2d 754 (1946).

[FN7] Md.—Linkus v. Maryland State Bd. of Heating Ventilation, Air-Conditioning and Refrigeration Contractors, 114 Md. App. 262, 689 A.2d 1254 (1997).

N.M.—In re McCain, 84 N.M. 657, 506 P.2d 1204 (1973).

Tex.—Jefco, Inc. v. Lewis, 520 S.W.2d 915 (Tex. Civ. App. Austin 1975), writ refused n.r.e., (July 23, 1975).

Duty to act

(1) Legislature has a duty to enact laws providing for general welfare and safety of people within state.

Ind.—State ex rel. Mavity v. Tyndall, 225 Ind. 360, 74 N.E.2d 914 (1947).

(2) There is no constitutional provision which imposes a duty on a state to provide services to its citizens.

U.S.—New York State Ass’n for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (E.D. N.Y. 1973).

Public necessity

Police power is founded in public necessity, which justifies its exercise.

Conn.—State v. Heller, 123 Conn. 492, 196 A. 337 (1937).

[FN8] N.Y.—Dobrzenski v. Village of Hamburg, 277 A.D.2d 1005, 715 N.Y.S.2d 819 (4th Dep’t 2000).

Okla.—State v. Nevins, 1980 OK CR 30, 611 P.2d 251 (Okla. Crim. App. 1980).

W. Va.—State ex rel. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981).

Almost infinite variety of subjects embraced

U.S.—Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Commission, 393 U.S. 186, 89 S. Ct. 354, 21 L. Ed. 2d 334 (1968).

[FN9] Cal.—D’Amico v. Brock, 122 Cal. App. 2d 63, 264 P.2d 120 (3d Dist. 1953).

Iowa—Jacobs v. City of Chariton, 245 Iowa 1378, 65 N.W.2d 561 (1954).

W.Va.—State ex rel. Morris v. West Virginia Racing Commission, 133 W. Va. 179, 55 S.E.2d 263 (1949).

Strict liability

In exercise of power, state may impose liability without fault.

Ala.—Walker v. State, 356 So. 2d 672 (Ala. 1977).

[FN10] U.S.—Panhandle Eastern Pipe Line Co. v. State Highway Commission of Kansas, 294 U.S. 613, 55 S. Ct. 563, 79 L. Ed. 1090 (1935).

Ala.—Jones v. State, 56 Ala. App. 280, 321 So. 2d 247 (Crim. App. 1975).

N.Y.—DeLury v. City of New York, 51 A.D.2d 288, 381 N.Y.S.2d 236 (1st Dep’t 1976).

[FN11] U.S.—Comtronics, Inc. v. Puerto Rico Telephone Co., 409 F. Supp. 800 (D.P.R. 1975), judgment aff’d, 553 F.2d 701 (1st Cir. 1977).

Ky.—Roe v. Com., 405 S.W.2d 25 (Ky. 1966).

Wash.—Spokane County v. Valu-Mart, Inc., 69 Wash. 2d 712, 419 P.2d 993 (1966).

Law of necessity

Police power is law of necessity.

N.J.—Jamouneau v. Harner, 16 N.J. 500, 109 A.2d 640 (1954).

[FN12] Ariz.—Transamerica Title Ins. Co. v. City of Tucson, 23 Ariz. App. 385, 533 P.2d 693 (Div. 2 1975).

Tenn.—H & L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444, 12 A.L.R.4th 835 (Tenn. 1979).

Tex.—Texas State Bd. of Pharmacy v. Gibson’s Discount Center, Inc., 541 S.W.2d 884 (Tex. Civ. App. Austin 1976), writ refused n.r.e., (Mar. 9, 1977).

[FN13] U.S.—Jung v. City of Winona, 71 F. Supp. 558 (D. Minn. 1947).

N.J.—State v. Gaynor, 119 N.J.L. 582, 197 A. 360 (N.J. Ct. Err. & App. 1938).

Assumptions unprovable or unproved

(1) Unprovable assumption may be acted on by states in areas of public control.

U.S.—Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).

(2) Legislatures properly may rely on scientifically unproven assumptions both in regulation of commercial and business transactions and for protection of broad social interests in order and morality.

D.C.—U. S. v. Moses, 339 A.2d 46 (D.C. 1975).

Blocking evasive techniques

In area of regulation, statute may push beyond debatable limits in order to block evasive techniques.

Cal.—Sacramento Newspaper Guild v. Sacramento County Bd. of Sup’rs, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (3d Dist. 1968).

[FN14] U.S.—Gitlow v. People of State of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925).

Colo.—People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977).

N.Y.—McCallin v. Walsh, 64 A.D.2d 46, 407 N.Y.S.2d 852 (1st Dep’t 1978), order aff’d, 46 N.Y.2d 808, 413 N.Y.S.2d 922, 386 N.E.2d 833 (1978).

Delayed impact

Authority of state to control activities of its citizens is not limited to activities which have a present and immediate impact on public health or welfare.

Alaska—Ravin v. State, 537 P.2d 494 (Alaska 1975).

Possession of devices or products

Mere possession of dangerous or deleterious devices or products may be forbidden by state under its police powers.

D.C.—Smith v. District of Columbia, 436 A.2d 53 (D.C. 1981).

[FN15] Ga.—De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940).

N.C.—State v. McGee, 237 N.C. 633, 75 S.E.2d 783 (1953).

Va.—Mumpower v. Housing Authority of City of Bristol, 176 Va. 426, 11 S.E.2d 732 (1940).

Giving up rights for public benefit

Power to pass laws regulating persons and property stems from theory that when persons choose to live in groups they must give up some individual freedom for good of group.

La.—City of Shreveport v. Curry, 357 So. 2d 1078 (La. 1978).

[FN16] Wis.—Gross v. Woodman’s Food Market, Inc., 259 Wis. 2d 181, 2002 WI App 295, 655 N.W.2d 718 (Ct. App. 2002), review denied, 2003 WI 32, 260 Wis. 2d 752, 661 N.W.2d 100 (2003).

[FN17] Md.—Maryland Coal & Realty Co. v. Bureau of Mines of State, 193 Md. 627, 69 A.2d 471 (1949).

Mich.—People v. Sell, 310 Mich. 305, 17 N.W.2d 193 (1945).

N.C.—Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941).

Interest of public paramount

Fla.—Egan v. City of Miami, 130 Fla. 465, 178 So. 132 (1938).

[FN18] Fla.—McInerney v. Ervin, 46 So. 2d 458 (Fla. 1950).

La.—City of Baton Rouge v. Ross, 654 So. 2d 1311 (La. 1995).

N.D.—State ex rel. City of Minot v. Gronna, 79 N.D. 673, 59 N.W.2d 514 (1953).

[FN19] Ky.—Commonwealth for Use and Ben. of City of Wilmore v. McCray, 250 Ky. 182, 61 S.W.2d 1043 (1933).

Utah—State v. Packer Corporation, 77 Utah 500, 297 P. 1013 (1931).

END OF SECTION

CJS CONSTLAW §  610

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XV. Privileges and Immunities of Citizens and Related Matters
C. Denial of Privileges and Immunities
2. Police Power and Regulation

Topic Summary  References 

§   1067. State’s exercise of police power

 Constitutional Law   206(1), 207(1), 207(6)

While a state, in the exercise of its police power, may pass laws for the health, morals, safety, and general welfare of persons within its jurisdiction, such exercise of power must not discriminate arbitrarily between citizens.

 Neither the guaranty contained in the original United States Constitution of the privileges and immunities of citizens of the several states, nor that contained in the Fourteenth Amendment, takes away or impairs the police power of the several states to pass reasonable laws for the promotion of the health, morals, safety, and general welfare of persons subject to their jurisdiction.[FN1] The privileges and immunities clause applies only to protect citizens of one state from discriminatory treatment in another state, and does not limit the state’s police power over its own citizens.[FN2]

It has been held that the privileges and immunities clauses have no application to statutes enacted in the exercise of that power.[FN3] On the other hand, it has been held that the police power is subject to the constitutional guaranty of equality of privilege,[FN4] and an exercise of the police power must not arbitrarily discriminate between citizens.[FN5] Nevertheless, the protections afforded by constitutional clauses protecting privileges and immunities of citizens are not absolute and will yield to reasonable exercise of state police powers.[FN6]

While in the matter of police regulation, the powers of the state are very broad, it cannot single out a corporation, any more than a natural person, and subject it to burdens which are not cast on others similarly situated, without contravening the limitations of the Fourteenth Amendment of the Federal Constitution.[FN7]

 [FN1] U.S.—Sullivan v. Shaw, 6 F. Supp. 112 (S.D. Cal. 1934).

Fla.—Stephens v. Stickel, 146 Fla. 104, 200 So. 396 (1941).

Mo.—State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988 (1933).

N.Y.—People ex rel. Bryant v. Zimmerman, 213 A.D. 414, 210 N.Y.S. 269 (4th Dep’t 1925), aff’d, 241 N.Y. 405, 150 N.E. 497, 43 A.L.R. 909 (1926), aff’d, 278 U.S. 63, 49 S. Ct. 61, 73 L. Ed. 184, 62 A.L.R. 785 (1928).

Or.—Daniels v. City of Portland, 124 Or. 677, 265 P. 790, 59 A.L.R. 512 (1928).

Tenn.—Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132 (1930).

W.Va.—Tweel v. West Virginia Racing Commission, 138 W. Va. 531, 76 S.E.2d 874 (1953).

[FN2] Me.—State v. Hayes, 603 A.2d 869 (Me. 1992).

[FN3] Wash.—Frach v. Schoettler, 46 Wash. 2d 281, 280 P.2d 1038 (1955).

[FN4] N.C.—State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97 (1952).

[FN5] Ind.—City of Richmond v. Dudley, 129 Ind. 112, 28 N.E. 312 (1891).

S.C.—Schloss Poster Advertising Co. v. City of Rock Hill, 190 S.C. 92, 2 S.E.2d 392 (1939).

[FN6] Mont.—State v. Barnes, 232 Mont. 405, 758 P.2d 264 (1988).

[FN7] U.S.—Southern Bell Tel. & Tel. Co. v. Town of Calhoun, 287 F. 381 (W.D. S.C. 1923).

END OF SECTION

CJS CONSTLAW §  1067

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XVI. Equal Protection of the Laws
B. Nature and Scope of Prohibitions

Topic Summary  References 

§   1115. Exercise of police power

 Constitutional Law   212

The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power, to pass laws for the protection of the public health, safety, welfare, or morals.

 The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power,[FN1] to pass laws for the protection of the public health, safety, welfare, or morals,[FN2] and indeed, the state has wide discretion to do so under the equal protection clause.[FN3] Furthermore, it does not interfere with the proper exercise of that power.[FN4]

However, according to the weight of authority, an exercise of the police power is subject to the constitutional limitation that no state shall deny the equal protection of the laws to any person within its jurisdiction;[FN5] and the Fourteenth Amendment invalidates enactments that are arbitrary, unreasonable, and unrelated to the public purpose sought to be attained.[FN6] In other words, equal protection requires that the exercise of police power be wholly free of unreason and arbitrariness.[FN7] It is necessary that a police regulation shall apply equally or uniformly to all persons similarly situated or within a class.[FN8] Thus, the lawmaking authority may, under its police power, enact regulations that are not all-embracing, and it may legislate with reference to degrees of evil and to situations in which the evil is demonstrably more harmful, without denying equal protection of the law;[FN9] but an exercise of the police power must not be discriminatory in operation.[FN10]

The equal protection clause of the Fourteenth Amendment to the Federal Constitution does not take from a state or municipal corporation the power to classify in the adoption of police laws or regulations,[FN11] but admits of the exercise of a wide or broad scope of discretion in that regard.[FN12]

 [FN1] Del.—In re Auditorium, Inc., 46 Del. 430, 84 A.2d 598 (Super. Ct. 1951).

[FN2] Fla.—Florida League of Cities, Inc. v. Department of Environmental Regulation, 603 So. 2d 1363 (Fla. Dist. Ct. App. 1st Dist. 1992).

Ohio—St. Ann’s Hosp. v. Arnold, 109 Ohio App. 3d 562, 672 N.E.2d 743 (10th Dist. Franklin County 1996).

Pa.—Pennsylvania Turnpike Com’n v. Com., 855 A.2d 923 (Pa. Commw. Ct. 2004), as amended, (Aug. 4, 2004).

[FN3] U.S.—Lee v. State, 869 F. Supp. 1491 (D. Or. 1994).

Colo.—Buckley Powder Co. v. State, 70 P.3d 547 (Colo. Ct. App. 2002), cert. denied, 2003 WL 21222805 (Colo. 2003) and cert. denied, (May 27, 2003).

[FN4] U.S.—Lacoste v. Department of Conservation of State of Louisiana, 263 U.S. 545, 44 S. Ct. 186, 68 L. Ed. 437 (1924); Chambers v. Bachtel, 55 F.2d 851 (C.C.A. 5th Cir. 1932).

Kan.—Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974).

[FN5] U.S.—Oyama v. California, 332 U.S. 633, 68 S. Ct. 269, 92 L. Ed. 249 (1948); Szeto v. Louisiana State Bd. of Dentistry, 508 F. Supp. 268 (E.D. La. 1981).

Fla.—Junco v. State Bd. of Accountancy, 390 So. 2d 329 (Fla. 1980).

[FN6] Ill.—Rawlings v. Illinois Dept. of Law Enforcement, 73 Ill. App. 3d 267, 29 Ill. Dec. 333, 391 N.E.2d 758 (3d Dist. 1979).

[FN7] N.J.—515 Associates v. City of Newark, 132 N.J. 180, 623 A.2d 1366 (1993).

[FN8] U.S.—Alabama State Federation of Labor, Local Union No. 103, United Broth. of Carpenters and Joiners of America v. McAdory, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945); Berry v. Arapahoe and Shoshone Tribes, 420 F. Supp. 934 (D. Wyo. 1976).

Cal.—Elysium Institute, Inc. v. County of Los Angeles, 232 Cal. App. 3d 408, 283 Cal. Rptr. 688 (2d Dist. 1991).

Neb.—Distinctive Printing and Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).

[FN9] Fla.—Pacheco v. Pacheco, 246 So. 2d 778 (Fla. 1971).

[FN10] U.S.—Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, 3 A.L.R.2d 441 (1948).

Ariz.—State v. Norcross, 26 Ariz. App. 115, 546 P.2d 840 (Div. 1 1976).

[FN11] U.S.—Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 66 S. Ct. 850, 90 L. Ed. 1096 (1946).

Tenn.—Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

As to legislative classifications, generally, see §  1110.

[FN12] U.S.—City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Authority, 825 F.2d 367 (11th Cir. 1987).

Ill.—People v. Toliver, 251 Ill. App. 3d 1092, 191 Ill. Dec. 290, 623 N.E.2d 880 (2d Dist. 1993).

Tenn.—Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

END OF SECTION

CJS CONSTLAW §  1115

Tagged , , ,

Disecting the Drivers License Law – in progress….

INTRODUCTION

I will try to make this as simple as possible, but you will have to pay very close attention and abandon everything you have previously believed regarding drivers licenses. Despite what you believe about what you “think” should be done to regulate others who use their vehicle for personal transportation, keep in mind that the government has not been endowed with general authority in requiring people to apply for, and possess, licenses for their private actions. There are words which you will need to pay close attention to, and not assume you know the meaning, since they have been specifically defined in the statutes. Words such as, “resident”, “natural person”, “State”, “licensee”, “drive, “motor vehicle”…etc. Do not automatically assume the words have the same meaning as your everyday usage. Do not automatically assume the definitions apply to you.

The Illinois Vehicle Code was enacted by P.A. 76-1586, effective July 1, 1970. The Code constitutes a consolidated recodification of various earlier laws and acts including the Illinois Motor Vehicle Law of 1957.‚ There has not always been licensing for drivers. As with any new thing, people were allowed to engage as they saw fit until government identified either a taxable nexus or some contrived intervention through public safety. Early automobiles were crude, and sometimes dangerous. They definitely did not afford the optimal protection for the occupants. Back in the day, the government used to intervene under what is called the police power, and generally for the regulation of businesses or occupations only. Of the states I researched, that seems to be the methodology for evolving driver licensing regulations. I am using Illinois as the example because it is where I have lived the longest and had access to state records and proceedings which chronicle the driver licensing legislation. The other states have the same constitutional limitations on licensing, and have also a similar history in implementing the driver license laws. This began with an individual state purpose for regulating commercial activities, and has evolved into a quasi-federal regulated use of the roads as a privilege for residents.

Besides the obvious questions in a discussion such as this, there are other questions as well. What is a State? What is a person? What is driving? Who were the first licensed drivers? Are traffic violations crimes? Is everyone required to have a license? Are licensing laws federal in nature, or state law? I’ll attempt to answer these questions without having to go into detail about the nature and types of law, as well as what is within the control of legislatures to license. Every law, must find its source in the constitution of the state or federal government. Constitutions do not give government unbridled authority except for what we say they “can’t do”, but they have limited authority by way of what we say then “can do”.

 

BACKGROUND ON INTERPRETING LAW AND WEBSTER’S DICTIONARY – “WHAT YOU TALKING ABOUT WILLIS”

When reading law, you can’t assume words mean the same as the common parlance of the day. There are complicated, and sometimes convoluted, ways if “interpreting” the law. I don’t know why legislators can’t write what they mean, but it seems apparent that there may be an intent to obfuscate in order to keep the real meaning and application of some laws out of the reach of the common man. There are doctrines such as “void for vagueness” which render some laws moot, but for the most part there are rules for interpreting law. This is called statutory interpretation.

Without belaboring this subject and further complicating the issue, I’ll summarize briefly and leave you to inquire further about the various canons and doctrines for interpretation. For the purpose of this article, below are the common canons of construction considered. To the left of the canon I will provide an abbreviation which will later be used to signify its application to the text. For example, Plain meaning will be represented with (PM), and appear at the end of a text indicating that is the canon used in interpreting the text. There may be multiple canons used in interpreting a text.

(PM) – Plain meaning
When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. United States, 242 U.S. 470 (1917), reasoning “[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain… the sole function of the courts is to enforce it according to its terms.” And if a statute’s language is plain and clear, the Court further warned that “the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.”

(EG) – Ejusdem generis (“of the same kinds, class, or nature”)
When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where “cars, motor bikes, motor powered vehicles” are mentioned, the word “vehicles” would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

(EU) – Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”)
Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as “includes” or “such as”.

(IP) – In pari materia (“upon the same matter or subject”)
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

(NS) – Noscitur a sociis (“a word is known by the company it keeps”)
When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.

(RS) – Reddendo singula singulis (“refers only to the last”)
When a list of words has a modifying phrase at the end, the phrase refers only to the last, e.g., firemen, policemen, and doctors in a hospital.

(GS) – Generalia specialibus non derogant (“the general does not detract from the specific”)
Described in The Vera Cruz (1884) 10 App. Cas. 59 as: “Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any evidence of a particular intention to do so.” This means that if a later law and an earlier law are potentially‚”but not necessarily‚”in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute. Lawmaking bodies usually need to be explicit if they intend to repeal an earlier law.

‚ LEGAL DEFINITIONS – A ROSE, BY ANY OTHER NAME, MAY BE A FIRM, COPARTNERSHIP, ASSOCIATION, OR CORPORATION

So, just what is a “license to drive”? Well, by definition a license is permission to do something that is otherwise illegal.

License:‚ http://legal-dictionary.thefreedictionary.com/license‚ -‚ The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a‚ Trespass‚ or a‚ tort.‚ The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.

Notice the word “privilege”. It is used throughout the statutes as well. You will often hear that “driving is a privilege”. In a sense, that is true, since driving is a specific activity and not necessarily what many of you do with your automobile.‚  Let’s look at what a privilege is:

Privilege:‚ http://legal-dictionary.thefreedictionary.com/privilege‚ -‚ privilege n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.

Look at it like this. Everyone has the right to use the roads for getting from one place to another. We can’t drive our cars across lawns and fields. The State, which is the people, have taken the land in common use and paved roads for convenience and safety in moving about. However, if someone would then attempt to use those roads which were provided by all, for the purpose of conducting business they would be profiting from something paid for, and maintained, by others. That is a privilege. I can set up a lemonade stand in my yard, but can’t just go to my neighbor’s yard and set one up. I have ‚ no right to use his yard without permission. That permission is a license. The same applies to using the roads. We have freedom of mobility. We cannot be denied the right to use what has been provided for all by requiring people to first apply for and be issued a license. You cannot license a right.

“Complete freedom of the highways is so old and well established a blessing that we have forgotten the days of the Robber Barons and toll roads, and yet, under an act like this, arbitrarily administered, the highways may be completely monopolized, if, through lack of interest, the people submit, then they may look to see the most sacred of their liberties taken from them one by one, by more or less rapid encroachment.” -Robertson vs. Department of Public Works, 180 Wash 133,147

“Personal liberty largely consists of the Right of locomotion — to go where and when one pleases — only so far restrained as the Rights of others may make it necessary for the welfare of all other citizens. The Right of the Citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness. Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another’s Rights, he will be protected, not only in his person, but in his safe conduct.” [emphasis added] American Jurisprudence 1st. Constitutional Law, Sect.329, p 1135.

So, if privileges apply to a particular group or class of people, who are they? Well, first we have to look at just “who” can be regulated and what they are doing. This will fall under the state’s “police power“. What is the “police power”? It is the inherent power of the State to legislate for the healty, safety, welfare, and morals of its citizens.‚  It is primarily limited to businesses or professional occupations. Keep this in mind because I’ll refer back to it later.

There are essentially two types of “persons”, residents and non-residents. We will first look at residents. A resident is defined thusly:

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

There are a couple of things to note. The use of the term “natural person” and “this State”. We know that corporations are considered persons under the law, and we assume that persons always includes people, but such is not the case. You must look at the object of the legislation and then at the definitions. A “person” may, in some cases depending on the legislation, mean only corporations. Likewise, “natural persons” do not mean only people. By the same token, “person” does not necessarily mean people. The Vehicle Code defines “person” as:

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation. (EG) (EU)
(Source: P.A. 76-1586.)

So, regarding “persons”, we have reference to natural persons, and corporate entities. Seeing as how they are hanging their hat on “natural persons”, we need to investigate how that is used throughout other laws.

Here are a couple of examples:

Under former clause 5 of ‚¶1 of former chapter 1 (now this paragraph) providing that the word “person” or “persons,” as well as all words referring to or importing persons, might extend and be applied to bodies politic and corporate as well as individuals, a dram shop license might be issued to a corporation as well as an individual. People, on Inf. of Healy v. Heidelberg Garden Co., 1908, 84 N.E. 230, 233 Ill. 290. Intoxicating Liquors

The word “parties” in the Venue Act (see, now, ch. 110, ‚¶501 et seq.) refers to and imports persons and includes corporations. Commercial Ins. Co. v. Mehlman, 1868, 48 Ill. 313, 95 Am.Dec. 543.

Corporations are included in the word “person” in the attachment law. Mineral Point R. Co. v. Keep, 1859, 22 Ill. 9, 74 Am.Dec. 124.

The term “natural person” or “natural persons,” used in the Banking Act (ch. 16 1/2 , ‚¶101 et seq.), extends to and applies to “bodies politic” and “corporate.” Fidelity Inv. Assn. v. Emmerson, 1924, 235 Ill.App. 518, reversed on other grounds 318 Ill. 548, 149 N.E. 530.

The word “company” in an act relating to the right to operate a street railway could not, under ‚¶1 of former chapter 1 (now this paragraph) be construed to include a natural person. Goddard v. Chicago & N.W. Ry. Co., 1903, 104 Ill.App. 526, affirmed 202 Ill. 362, 66 N.E. 1066.

The word “person” authorizes a recovery upon the complaint of a body politic or corporate. Durbin v. People, 1894, 54 Ill.App. 101.

A city was a “person” within Workmen’s Compensation Act, ‚§ 3 (ch. 48, ‚¶136, repealed), in view of ‚¶1 of former chapter 1 (now this paragraph). Smith v. City of Hamilton, 1924, 231 Ill.App. 482.

So, based on the foregoing, we cannot assume that a “natural person” necessarily means people in-general. It is reasonable to conclude that a natural person is a human being, but a human being acting as a representative for a corporation or having a duty as an officer of a corporation. Since you cannot impose a duty or obligation upon a incorporeal entity, like a corporation, you can upon an individual who is charged with executing the by-laws of the corpration. There must be a flesh-and-blood individual responsible for carrying forth the operations of the corporation.

If “persons” and “natural persons” may mean people, cities, corporations, how do we determine who is bound by the law? Let’s look at the definition further. A resident is distinguished by two means, the “natural person” and the “un-natural person”, aka, corporation. This illustrates what I have just explained above. However, pay attention to the location of residency. Natural persons reside in “this State” and corporations reside in the State of Illinois.

Natural Persons – (a) Every natural person who resides in this state shall be deemed a resident of this State.

Corporations not incorporated in the State of Illinois – (b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
Corporations Incorporated in the State of Illinois – (c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois

There are two things to note. Notice how in (a), there are two spellings of “this state”, one being with a lower case (s) state, and the other with an upper case (S) State. This is no accident, and when read actually makes no apparent sense. Here are a few ways to possibly interpret that phrase:

(a) Every human being who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in‚ this state shall be deemed to be a resident of Illinois

(a) Every human being‚ who resides in Illinois shall be deemed to be a resident of this State.

(a) Every human being who resides in this state shall be deemed to be a resident of Illinois

As you can see, it really makes no sense if “this state” and “this State” means the State of Illinois. So, what is “this (s)(S)tate”? In the case of natural persons, it is residency. In the case of corporations, it is their place of business or incorporation. If it applies to corporations, the phrase “State of Illinois” is used, and in the case of natural persons it is “this state”.

We must determine what exactly a “state”/”State” is. I will prove that there is a state, other than the State of Illinois, which is used for the Illinois Vehicle Code. The Illinois Statutes define “State” differently in certain statutes.

(5 ILCS 70/1.14) (from Ch. 1, par. 1015)
‚ Sec. 1.14. “State,” when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words “United States” may be construed to include the said district and territories. (EG) (EU) (RS)
(Source: Laws 1945, p. 1717.)

1. District of Columbia – The District of Columbia is a “state” within the proviso of ch. 110 1/2 , ‚¶6 (see, now, ch. 111, ‚¶5506), permitting certified public accountants holding certificates issued under laws of another “state” to practice in Illinois. Gore v. National Ass’n of Certified Public Accountants, 1924, 231 Ill.App. 38., 5 I.L.C.S. 70/1.14, IL ST CH 5 ‚§ 70/1.14

There are parts of the Illinois Compiled Statutes which have gone to lenghts to actually define “State”, or “this State”.

AIR TRANSPORTATION
(620 ILCS 5/) Illinois Aeronautics Act.
(620 ILCS 5/7) (from Ch. 15 1/2, par. 22.7)
http://marcmkkoy.com/mark/ilcs/ilcs3d5c4.html?ActID=1803&ChapterID=48
Sec. 7. “State” or “this State” means the State of Illinois; and “Department” means the Division of Aeronautics of the Department of Transportation of this State. (PM)
(Source: P.A. 81-840.)

We can infer from the use of state in other statutes that there is a difference between Illinois, and parts of the Unites States; meaning that things other than the several 50 states can be States. So far, we have determined that persons can be people or legal entities. We have also determined that, as far as the Vehicle Code is concerned, when referring to persons, the definition specifies “natural persons”, and that “natural persons” can be both people and legal enties. As an example, let’s look at another part of the Transporation Statutes, in this case, Roads and Bridges, and see how they define a “person”:

ROADS AND BRIDGES
(605 ILCS 5/) Illinois Highway Code.
(605 ILCS 5/2-216) (from Ch. 121, par. 2-216)
http://marcmkkoy.com/mark/ilcs/ilcs41783.html?DocName=060500050HArt.+2+Div.+2&ActID=1745&ChapterID=45&SeqStart=1100000&SeqEnd=3200000
Sec. 2-216. Person-Any person, firm, partnership, association, public or private corporation, organization or business or charitable trust. (EG) (EU)
(Source: Laws 1959, p. 196.)

I fail to find the term “natural person” used for the Illinois Highway Code. So, to what does that code apply? Does it apply to “this State”, or “the State of Illinois”?

(605 ILCS 5/1-103) (from Ch. 121, par. 1-103)
Sec. 1-103.
This Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction (1) of any department, board, commission or agency of this State other than the Department of Transportation or (2) of any municipal corporation other than a city, village or incorporated town.
(Source: P.A. 77-173.)

 

ARE YOU LIVING IN A state OF CONFUSION OVER THE state OF THE state OF this State?

Now, this is telling in that the Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction of another agency of “this State” other than the Department of Transporation or of a municipal corporation other than a city, village, or incorporated town. It can also be worded to say, “This Code applies to all public highways in the State of Illinois except areas under the exclusive jurisdiction of something other than the Department of Transportation or a municipal corporation that is not a city, village, or town.” So, as far as the Illinois Highway Code is concerned, there are public highways in the State of Ilinois, and those under the exclusive jurisdiction of “this State”, or a municipal corporation other than a city, village, or incorporated town, which can include a municipal corporation of the Unites States which is also called a State, such as:

625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586

To complicate matters further, but to illustrate a dual and overlapping jurisdiction of state and federal authority, we will look at Illinois in another light, that being, as a federal territory:

DIVISION 1. SYSTEMS OF HIGHWAYS
http://marcmkkoy.com/mark/ilcs/ilcs4367d.html?DocName=060500050HArt.+2&ActID=1745&ChapterID=45&SeqStart=500000&SeqEnd=3200000
(605 ILCS 5/2-202) (from Ch. 121, par. 2-202)
Sec. 2-202. Highway-any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, or which has been or may be laid out and connect a subdivision or platted land with a public highway and which has been dedicated for the use of the owners of the land included in the subdivision or platted land where there has been an acceptance and use under such dedication by such owners, and which has not been vacated in pursuance of law. The term “highway” includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a “road”, while a highway in a municipal area may be called a “street”.
(Source: Laws 1959, p. 196.)

Now, notice how there is a “Territory of Illinois” distinguished from “this State”. Illinois ceased being a territory with the Ordinance of 1818 when it was allowed statehood. However, the federal government has exclusive jurisdiction over its territories. Notice the “Source” date on the statute. It is 1959. There was no Illinois Territory in 1959, or was there? What exactly do they mean by Territory of Illinois? Let’s look at the definition of a “territory”:

http://legal-dictionary.thefreedictionary.com/territory
TERRITORY. Apart of a country, separated from the rest, and subject to a particular jurisdiction. The word is derived from terreo, and is so called because the magistrate within his jurisdiction has the power of inspiring a salutary fear. Dictum cat ab eo quod magistratus intra fines ejus terrendi jus habet. Henrion de Pansy, Auth. Judiciare, 98. In speaking of the ecclesiastical jurisdictions, Francis Duaren observes, that the ecclesiastics are said not to have territory, nor the power of arrest or removal, and are not unlike the Roman magistrates of whom Gellius says vocationem habebant non prehensionem. De Sacris Eccl. Minist. lib. 1, cap. 4. In the sense it is used in the constitution of the United States, it signifies a portion of the country subject to and belonging to the United States, which is not within the boundary of any of them.
2. The constitution of the United States, art. 4, s. 3, provides, that “the congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States; and nothing in this constitution shall be construed, so as to preclude the claims of the United States or of any state.”
3. Congress possesses the power to erect territorial governments within the territory of the United States; the power of congress over such territory is exclusive and universal, and their legislation is subject to no control, unless in the case of ceded territory, as far as it may be affected by stipulations in the cessions, or by the ordinance of 1787, 3 Story’s L. U. S. 2073, under which any part of it has been settled. Story on the Const. Sec. 1322; Rawle on the Const: 237; 1 Kent’s Com. 243, 359; 1 Pet. S. C. Rep. 511, 542, 517.
4. The only organized territories of the United States are Oregon, Minnesota, New Mexico and Utah. Vide Courts of the United States.

This essentially says that a territory is separate from the rest of the country and subject to particular jurisdiction under the full control of Congress, including land ceded to the federal government and governed by stipulations. I posit, the stipulations are the accepting federal highway dollars for roads and other transportation uses, thereby subjecting the “highways” to the control of Congress, the area over which it legislates is referred to as, “this State”. I am speculating that when it comes to the drivers license, the State of Illinois does not have the right to license the use of roads under the jurisdiction of the United States, and any alleged violation for not possessing a license can be removed to federal court for lack of standing on the part of the state government.

Here is a sampling of how the federal monies are used over certain roads and the corresponding jurisdiction over those roads:

http://marcmkkoy.com/mark/ilcs/ilcs4c9b1.html?DocName=060500050HArt.+3&ActID=1745&ChapterID=45&SeqStart=3200000&SeqEnd=5200000
(605 ILCS 5/3-104.2) (from Ch. 121, par. 3-104.2)
Sec. 3-104.2. The Department, or the Department in cooperation with municipal corporate authorities or county authorities, is authorized to receive and expend, by agreement or otherwise, federal funds for the construction, reconstruction and improvement of public roads not on any Federal-aid system, being improved under the Federal Aid Road Act.
Any Federal-aid project as authorized in this Section may be undertaken jointly at the expense of the federal government and the State of Illinois, or jointly at the expense of the federal government, a municipality or municipalities, or a county or counties, or jointly at the expense of the federal government, the State of Illinois, a municipality or municipalities or a county or counties, or any of the above jointly with any other public or private entity or public utility.
The authority having jurisdiction over a public road not on any federal-aid system prior to its improvement as a federal-aid project shall continue to be responsible for maintenance, at its own expense.
For the purposes of this Section, “public road” means any road under the jurisdiction of and maintained by a public authority and open to public travel and which is not on a federal-aid system.
(Source: P.A. 84-298.) – (Notice how the term “State of Illinois” is used instead of “this State”)

I apologize if I have deviated from my original intent, but I feel that foundation is important in supporting my analysis. All of this will come together to help you realize that the drivers license laws, although initially under the control of the States as a valid exercise of their police power in licensing and regulating drivers (chaffeurs) who accept compensation for carrying on a business, has now, through federal encroachment, become a plenary object of congress and an agreement between the States and Federal Government to establish a murky jurisdiction. Remember, the Federal Government has no authority within the boundaries of a State without that sovereignty being waived or ceded to the Federal Government, and upon doing so, thereby creates an area of concurrent jurisdiction where a federal State is found within the boundaries of one of the several States. From this, grew the National Driver Register, mandatory seat-belt laws, sobriety checkpoints, and more.

I believe it can be further speculated, that the Governor of the State of Illinois violates his oath of office by acting as an ambassador/administrator for the Federal Government in binding the people to federal regulations without clear constitutional authority or mandate. The nail in the coffin is the Illinois Highway Safety Law. I will reference the law, the Governor’s role, and a telling phraseology of what “this State” is in relation to establishing a federal territory in the State of Illinois for the purpose of receiving federal highway funds, which then provide the nexus for federal regulations imposed upon the states.

(625 ILCS 5/Ch. 17 heading)
CHAPTER 17. ILLINOIS HIGHWAY SAFETY LAW
http://marcmkkoy.com/mark/ilcs/ilcs43c49.html?DocName=062500050HCh.+17&ActID=1815&ChapterID=49&SeqStart=153100000&SeqEnd=153300000
(625 ILCS 5/17-101) (from Ch. 95 1/2, par. 17-101)
Sec. 17-101. Powers and duties of governor. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State is empowered to contract and to do all other things necessary in behalf of this State to secure the full benefits available to this State under the Federal Highway Safety Act of 1966, as amended, and in so doing, to cooperate with Federal and State agencies, agencies private and public, interested organizations, and with individuals, to effectuate the purposes of that enactment, and any and all subsequent amendments thereto. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. To that end he shall coordinate the activities of the Secretary of State and the State Board of Education and of any and all departments and agencies of this State and its subdivisions, relating thereto.
(Source: P.A. 81-1508.)

‚ Let’s analyze this statute line-by-line.

1. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State – The duties and responsibilities of the Governor of Illinois are conferred only by the Constitution of Illinois. The laws do not confer duties and responsibilities. His office is a Constitutional office and the duties and responsibilities are found in the Constitution of Illinois. I would argue that this statute is unconstitutional. The question is, what, exactly, are the duties and responsibilities conferred upon the Governor by “the laws of this State”, which is a federal territory or federal municipal corporation under the jurisdiction imposed by the Federal Highway Safety Act of 1966.

2. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. – This wording is very suspect, as how did the Governor become the “official of this State”, and where to the responsibilities for dealing with the Federal Government arise in the Illinois Constitution? Since the Governor is a creature of the Constitution, and his duties and obligations are Constitutinal in-nature, let’s look to the Constitution for any “offical of this State” designation or responsibility to the Federal Government:

Illinois Constitution
Article 5, SECTION 8. GOVERNOR‚”SUPREME EXECUTIVE POWER
http://www.ilga.gov/commission/lru/Ilconstitution.pdf
The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.
This is the first of several sections setting forth the powers of the Governor. This section states the powers that are most general. The Illinois Supreme Court has commented that this provision does not empower the Governor to establish new legal requirements by executive order or otherwise; as to persons not under his jurisdiction, he may only execute and enforce existing law.
The Governor does have control over agencies under him through his power to remove subordinates and his authority (recognized under Article 13, section 2) to establish ethical standards for agencies under him. – I see no obligation to the Federal Government imposed by the Illinois Constitution.‚ I see no designation for “official of this State”, or any other such‚ designation.

 

SKELETONS IN THE LEGISLATIVE CLOSET – CHRONOLOGY OF LICENSING LAWS

‚ What I think we have established, or have othewise made a very strong argument for or raised serious questions to, is the object and intent of the Drivers License laws, the proper jurisdiction involved, and whether this is a State law or Federal Law.

‚ As I said, this may have began with a proper exercise of the police power of the State in legislating for the health, safety, welfare, and morals of its Citizens, but has become something more invasive and encroaching. The issue is not whether we agree with the laws, or whether they serve any compelling state interest or protect public safety, it is by what authority do these laws exist? I’m going to go back to some of the earliest motor vehicle legislation and quote verbatim from that legislation, showing that in the beginning, the only objects of regulation were those using motor vehicles in the pursuit of a pecuniary benefit.

Smith’s Illinois Revised Statutes – 1921
Page 1720
MOTOR VEHICLES
AN ACT in relation to motor vehicles and to repeal a certain act therein named. [Approved June 30, 1919]
Page 1725
228. Chauffers – Regulations – License – Fees, etc.]
‚§27. An application for a license to operate motor vehicles as a chauffer, who is hereby defined to mean any person operating a motor vehicle as a mechanic or employee, and who directly or indirectly receives pay or any compensation whatsoever

Page 1726
for any work or services in connection with the operation of a motor vehicle or the transportation of passengers or merchendise with a motor vehicle for hire or for pecuniary profit, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority….
(Last paragraph on left column of page)
No person shall operate or drive a motor vehicle as a chauffer upon a public highway of this State, unless such person shall have complied in all respects with the requirements of this section: Provided, however, that a non-resident chauffeur who has registered under the provisions of the law in force in the city, state, foreign country or province, territory or Federal district, of his residence, substantially equivalent to the provisions of this section shall be exempt from license hereunder, while temporarily sojouring within this State, only to the extent that under the laws of the city, state, foreign country or province, territory or Federal district of his residence like privileges are granted to persons duly licensed and registered as chauffeurs under the laws of this State, and who are residents of this State.
230. Chauffeur or operator must be licensed.]
‚§29. No person or corporation shall employ, as a chauffeur or operator of a motor vehicle, any person not specially licensed as aforesaid.

Smith-Hurd
Illinois Revised Statutes
With cross references
1923
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1925
Essentially the save verbiage.

Cahill Illinois Revised Statutes
Keyed to Annotated Statutes
1927
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1929
Essentially the save verbiage.

Illinois Revised Statutes
With cross references
1925
State Bar Association Edition
Chap. 95 1/2 section 33 Page 2125
32b. Licenses of chauffeurs for 1938.]
‚§26b. All the provisions of law in force prior to the passage of this amendatory Act relating to the licensing and regulation of chauffeurs shall remain in full force and effect with respect to all chaiffeurs licensed for the year 1938. The provisions of this amendatory Act relating to the licensing and regulation of chauffeurs shall not apply to chauffeurs so licensed for the year 1938. Added by act filed July 12, 1938. L.1938, First Sp.Sess., p.39.
S.H.A. 95 1/2 Section 32b; J.A. 85.032(2).
33. Chauffeurs – License – Application – Examination – Fee – Age – Form of license-school bus and vehicle of common carrier- Record in office of Secretary of State-Non-resident chauffeurs-Renewal of licenses.]
‚§27. An application for a license to operate a motor vehicle as a chauffeur, who is hereby defined to mean any person whose principal occupation is that of operating a motor vehicle as a mechanic or employee, or who directly or indirectly receives pay or any compensation whatsoever for any work or services in connection with the operation of a motor vehicle for the transportation of passengers or merchendise for hire, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority. Provided, however, that no person shall be held to be a chauffeur, and subject to the provisions hereof, who operates a motor vehicle incidentally to some other and principal occupation and where such motor vehicle is so perated solely in furtherance of such other and principal occupation and is not used for the transportation of passengers or merchendise for hire; and, provided, further, that no person shall b eheld to be a chauffeur and subject to the provisions hereof who operates a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States or who operates a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway; and, provided, further, that any garage which repairs or services motor vehicles and operates a service car shall have at least one licensed chauffeur who insofar as it is possible, shall take care of all testing and outside service work.

Chap. 95 1/2 section 33 Page 2126
34a. License as chauffeur or operator required – Exemptions.]
‚§28a. On and after May 1, 1939 in the case of operators and on and after January 1, 1939 in the case of chauffeurs, no person except those herinafter expressly exempted, shall drive any motor vehicle upon a highway in this State, unless such person has a valid license as an operator or chauffeur under the provisions of this Act, an operator being hereby defined to mean any person, other than a chauffeur, who is in actual physical control of a motor vechicle upon a highway. Any person holding a valid chauffeur’s license hereunder need not procure an operator’s license. Provided, however, that the following persons are exempt from the requirements of this section:
1. Any person while operating a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States;
2. Any person while driving or operating a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway;
3. A non-resident of this State who is at least fifteen years of age and who has in his immediate possession a valid operator’s license issued to him in his home State or Country, may operate a motor vehicle in this State only as an operator;
4. A non-resident who is at least eighteen years of age and who has in his immediate possesion a valid chauffeur’s license issued to him in his State or Country may operate a motor vehicle in this State either as an operator or chauffeur except that any such person must be licensed as a chauffeur hereunder before accepting employment as a chauffeur from a resident of this State;
5. Any non-resident who is at least fifteen years of age, whose home State or Country does not require the licensing of operators, while operating a motor vehicle as an operator only, for a period of not more than 90 days in any calendar year, if in the home State or Country of such non-resident.
The provisions of this section granting exemptions to non-residents shall be operative only when under the laws of this State, foreign country or province, territory or federal district of such non-resident, like exemptions and privileges are granted to licensed resident operators and chauffeurs of this State. Added by act filed July 12, 1938. L.1938, First Sp. Sess., p.39

This is where “Operators” came to be and to require licenses. This is the beginning of the “drivers license”.

Given the foregoing, let’s look at the current law and see just “who” is required to have a driver’s license:

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

Who, is exempt?

http://marcmkkoy.com/mark/ilcs/ilcs47662.html?DocName=062500050HCh.+6&ActID=1815&ChapterID=49&SeqStart=72100000&SeqEnd=90800000
(625 ILCS 5/6-102) (from Ch. 95 1/2, par. 6-102)
Sec. 6-102. What persons are exempt. The following persons are exempt from the requirements of Section 6-101 and are not required to have an Illinois drivers license or permit if one or more of the following qualifying exemptions are met and apply:
1. Any employee of the United States Government or any member of the Armed Forces of the United States, while operating a motor vehicle owned by or leased to the United States Government and being operated on official business need not be licensed;
2. A nonresident who has in his immediate possession a valid license issued to him in his home state or country may operate a motor vehicle for which he is licensed for the period during which he is in this State;
3. A nonresident and his spouse and children living with him who is a student at a college or university in Illinois who have a valid license issued by their home State.
4. A person operating a road machine temporarily upon a highway or operating a farm tractor between the home farm buildings and any adjacent or nearby farm land for the exclusive purpose of conducting farm operations need not be licensed as a driver.
5. A resident of this State who has been serving as a member of the Armed Forces of the United States outside the Continental limits of the United States, for a period of 90 days following his return to the continental limits of the United States.
6. A nonresident on active duty in the Armed Forces of the United States who has a valid license issued by his home state and such nonresident’s spouse, and dependent children and living with parents, who have a valid license issued by their home state.
7. A nonresident who becomes a resident of this State, may for a period of the first 90 days of residence in Illinois operate any motor vehicle which he was qualified or licensed to drive by his home state or country so long as he has in his possession, a valid and current license issued to him by his home state or country. Upon expiration of such 90 day period, such new resident must comply with the provisions of this Act and apply for an Illinois license or permit.
8. An engineer, conductor, brakeman, or any other member of the crew of a locomotive or train being operated upon rails, including operation on a railroad crossing over a public street, road or highway. Such person is not required to display a driver’s license to any law enforcement officer in connection with the operation of a locomotive or train within this State.
The provisions of this Section granting exemption to any nonresident shall be operative to the same extent that the laws of the State or country of such nonresident grant like exemption to residents of this State.
The Secretary of State may implement the exemption provisions of this Section by inclusion thereof in a reciprocity agreement, arrangement or declaration issued pursuant to this Act.
(Source: P.A. 96-607, eff. 8-24-09.)

The power to license rests with the legislature, and their exercise of the police power. I believe the State of Illinois exceeds its police power authority in the current drivers license laws because it does not serve to protect the citizens from a threat to the health, safety, welfare, or morals; and is equally violative of the equal protection clause of the 14th Amendment in excluding some from complying with the licensing requirements. There can be no exclusion for some where the compelling state interest does not differentiate between classes of individuals in carrying forth the provisions of the law. In the case of Mahony v. Township of Hampton, 539 Pa. 193, 651 A.2d 525 (1994), Mahony argued that the government could not be exempt from one ordinance and he be obligated to it. By those under number 1. above being exempt with no rational basis in driver competency, I believe it is violative of the equal protection clause and an invalid exercise of the police power when causing some to be licensed and not others. In-fact, it can be said that the state fails in exercising its police powers because people now can renew their licenses without having to take a competency road test or exam every time their license expires. Theoretically, driver competency can diminish over this time and the state, thereby, places drivers “legally” upon the road who pose an articulable danger to other drivers.

…..More to come……….

 

TABLE OF AUTHORITIES/DEFINITIONS/CASES CITED

Illinois Vehicle Code Definitions:

(625 ILCS 5/1-154.1) (from Ch. 95 1/2, par. 1-154.1)
Sec. 1-154.1. Operate. To ride in or on, other than as a passenger, use or control in any manner the operation of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-154.2) (from Ch. 95 1/2, par. 1-154.2)
Sec. 1-154.2. Operator. Every person who operates or is in actual physical control of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-115.8)
Sec. 1-115.8. Drive. To drive, operate, or be in physical control of a motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-116) (from Ch. 95 1/2, par. 1-116)
Sec. 1-116. Driver.
Every person who drives or is in actual physical control of a vehicle.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-209.5)
Sec. 1-209.5. Transportation. The actual movement of property or passengers by motor vehicle, together with loading, unloading, and any other accessorial or ancillary service provided by the carrier in connection with movement by motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133) (from Ch. 95 1/2, par. 1-133)
Sec. 1-133. Interstate or Interstate Commerce.
Transportation between 2 or more States or transportation originating in one State and passing into or through other States for delivery in another State, and which is not intrastate.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-133.05)
Sec. 1-133.05. Interstate carrier of property. Any person who is engaged in the transportation of property only by motor vehicle in whole or in part in interstate or foreign commerce in this State either with or without authority issued from the Interstate Commerce Commission.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133.1) (from Ch. 95 1/2, par. 1-133.1)
Sec. 1-133.1. Interstate highway. Any highway which is now, or shall hereafter be, a part of the national system of interstate and defense highways within this State.
(Source: P.A. 85-830.)

(625 ILCS 5/1-134) (from Ch. 95 1/2, par. 1-134)
Sec. 1-134. Intrastate or Intrastate Commerce.
Transportation originating at any point or place within this State and destined to any other point or place within this State, irrespective of the route, highway or highways traversed, and including transportation which passes into or through another State before delivery is made within this State, and including any act of transportation which includes or completes a pickup within Illinois for delivery within Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-145) (from Ch. 95 1/2, par. 1-145)
Sec. 1-145. Motor carrier.
An operator of For-Hire vehicles pursuant to the Illinois Motor Carrier of Property Law.

(625 ILCS 5/1-122.5) (from Ch. 95 1/2, par. 1-124)
Sec. 1-122.5. For-hire. The operation of a vehicle for compensation and subject to federal regulation by the Interstate Commerce Commission or to state regulation by the Illinois Commerce Commission and those vehicles governed by Chapters 8 and 9 under this Code and regulated by the Secretary of State.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-153) (from Ch. 95 1/2, par. 1-153)
Sec. 1-153. Not-For-Hire.
Operation of a commercial vehicle in furtherance of any commercial or industrial enterprise but not For-Hire.
(Source: P.A. 76-1586.)

(625 ILCS 5/8-101) (from Ch. 95 1/2, par. 8-101)
Sec. 8-101. Proof of financial responsibility – Persons who operate motor vehicles in transportation of passengers for hire.
(a) It is unlawful for any person, firm or corporation to operate any motor vehicle along or upon any public street or highway in any incorporated city, town or village in this State for the carriage of passengers for hire, accepting and discharging all such persons as may offer themselves for transportation unless such person, firm or corporation has given, and there is in full force and effect and on file with the Secretary of State of Illinois, proof of financial responsibility provided in this Act. – (Source: P.A. 76-1586.)

(625 ILCS 5/1-207) (from Ch. 95 1/2, par. 1-207)
Sec. 1-207. Traffic.
Pedestrians, ridden or herded animals, vehicles, streetcars and other conveyances either singly or together while using any highway for purposes of travel.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-217) (from Ch. 95 1/2, par. 1-217)
Sec. 1-217. Vehicle. Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.
For the purposes of this Code, unless otherwise prescribed, a device shall be considered to be a vehicle until such time it either comes within the definition of a junk vehicle, as defined under this Code, or a junking certificate is issued for it.
For this Code, vehicles are divided into 2 divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those vehicles which are designed for carrying more than 10 persons, those designed or used for living quarters and those vehicles which are designed for pulling or carrying property, freight or cargo, those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division, and those motor vehicles of the First Division used and registered as school buses.
(Source: P.A. 92-812, eff. 8-21-02.)

(625 ILCS 5/1-146) (from Ch. 95 1/2, par. 1-146)
Sec. 1-146. Motor vehicle. 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, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles. For this Act, motor vehicles are divided into two divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those motor vehicles which are designed for carrying more than 10 persons, those motor vehicles designed or used for living quarters, those motor vehicles which are designed for pulling or carrying freight, cargo or implements of husbandry, and those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division.
(Source: P.A. 96-125, eff. 1-1-10.)

(625 ILCS 5/1-157) (from Ch. 95 1/2, par. 1-157)
Sec. 1-157. Passenger car.
A motor vehicle of the First Division including a multipurpose passenger vehicle, that is designed for carrying not more than 10 persons.
(Source: P.A. 78-343.)

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

(625 ILCS 5/6-112) (from Ch. 95 1/2, par. 6-112)
Sec. 6-112. License and Permits to be carried and exhibited on demand. Every licensee or permittee shall have his drivers license or permit in his immediate possession at all times when operating a motor vehicle and, for the purpose of indicating compliance with this requirement, shall display such license or permit if it is in his possession upon demand made, when in uniform or displaying a badge or other sign of authority, by a member of the State Police, a sheriff or other police officer or designated agent of the Secretary of State. However, no person charged with violating this Section shall be convicted if he produces in court satisfactory evidence that a drivers license was theretofor issued to him and was valid at the time of his arrest.
For the purposes of this Section, “display” means the manual surrender of his license certificate into the hands of the demanding officer for his inspection thereof.
(Source: P.A. 76-1749.)

(625 ILCS 5/1-138) (from Ch. 95 1/2, par. 1-138)
Sec. 1-138. License to drive.
Any driver’s license or any other license or permit to operate a motor vehicle issued under the laws of this State including:
1. Any temporary license or instruction permit;
2. The privilege of any person to drive a motor vehicle whether or not such person holds a valid license or permit.
3. Any nonresident’s driving privilege as defined herein.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-138.1) (from Ch. 95 1/2, par. 1-138.1)
Sec. 1-138.1. Licensee. A person licensed or required to be licensed under Sections 5-101, 5-102, 5-201 and 5-301 of this Code.
(Source: P.A. 83-1473.)

(625 ILCS 5/5-101) (from Ch. 95 1/2, par. 5-101)
Sec. 5-101. New vehicle dealers must be licensed.
(625 ILCS 5/5-102) (from Ch. 95 1/2, par. 5-102)
Sec. 5-102. Used vehicle dealers must be licensed.
(625 ILCS 5/5-201) (from Ch. 95 1/2, par. 5-201)
Sec. 5-201. Transporters must apply for in-transit plates.
(625 ILCS 5/5-301) (from Ch. 95 1/2, par. 5-301)
Sec. 5-301. Automotive parts recyclers, scrap processors, repairers and rebuilders must be licensed.

(625 ILCS 5/1-110) (from Ch. 95 1/2, par. 1-110)
Sec. 1-110. Cancellation of driver’s license.
The annulment or termination by formal action of the Secretary of a person’s driver’s license because of some error or defect in the license or because the licensee is no longer entitled to such license, but, with the exception of Sections 6-107, 6-108 and 6-201, the cancellation of a license is without prejudice and application for a new license may be made at any time after such cancellation.
(Source: P.A. 86-1450.)
(625 ILCS 5/6-107) (from Ch. 95 1/2, par. 6-107)
Sec. 6-107. Graduated license.
(625 ILCS 5/6-108) (from Ch. 95 1/2, par. 6-108)
Sec. 6-108. Cancellation of license issued to minor.
(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.

ARTICLE II. CANCELLATION, SUSPENSION, OR
REVOCATION OF LICENSES AND PERMITS

(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.
(a) The Secretary of State is authorized to cancel any license or permit upon determining that the holder thereof:
(SEE FULL CITATION)

(625 ILCS 5/6-202) (from Ch. 95 1/2, par. 6-202)
Sec. 6-202. Non-residents and Unlicensed Persons-Revocation and Suspension-Reporting Convictions.
(a) The privilege of driving a motor vehicle on highways of this State given to a nonresident hereunder and the privilege which an unlicensed person might have to obtain a license under this Act shall be subject to suspension or revocation by the Secretary of State in like manner and for like cause as a drivers license issued hereunder may be suspended or revoked.
(b) The Secretary of State is authorized, upon receiving a report of the conviction in this State of a nonresident driver of a motor vehicle of any offense under the laws of this State relating to operation, custody or ownership of motor vehicles, to forward a copy or abstract of such report to the motor vehicle administrator of the State wherein the person so convicted is a resident.
(c) (Blank.)
(d) This section is subject to the provisions of the Driver License Compact.
(Source: P.A. 96-962, eff. 7-2-10.)

(625 ILCS 5/6-206)
(Text of Section from P.A. 96-1551)
Sec. 6-206. Discretionary authority to suspend or revoke license or permit; Right to a hearing.
(a) The Secretary of State is authorized to suspend or revoke the driving privileges of any person without preliminary hearing upon a showing of the person’s records or other sufficient evidence that the person:
(SEE FULL CITATION)

(625 ILCS 5/6-209) (from Ch. 95 1/2, par. 6-209)
Sec. 6-209. Notice of Cancellation, Suspension or Revocation – Surrender and Return of License. The Secretary of State upon cancelling, suspending or revoking a license or permit shall immediately notify the holder thereof in writing and shall require that such license or permit shall be surrendered to and retained by the Secretary of State. However, upon payment of the reinstatement fee set out in subsection (g) of Section 6-118 at the end of any period of suspension of a license the licensee, if not ineligible for some other reason, shall be entitled to reinstatement of driving privileges and the return of his license if it has not then expired; or, in case it has expired, to apply for a new license.
(Source: P.A. 81-462.)

(625 ILCS 5/6-212) (from Ch. 95 1/2, par. 6-212)
Sec. 6-212. Court Review. The provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Secretary of State hereunder.
(Source: P.A. 82-783.)

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-115.6)
Sec. 1-115.6. Domiciliary. A person who is domiciled.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586.)

 

ILLINOIS COMPILED STATUTES – ANNOTATED

ILCS Ch. 625, Act 5, Ch. 1, References and Annotations
Illinois Annotated Compiled Statutes

ENACTMENT
<The Illinois Vehicle Code was enacted by P.A. 76-1586, effective July 1, 1970. The Code constitutes a consolidated recodification of various earlier laws and acts including the Illinois Motor Vehicle Law of 1957.>

INTRODUCTORY COMMENT–1969
The definitions are primarily based upon those found in the old Illinois Vehicle Law (I.V.L.) and the Uniform Act Regulating Traffic (U.A.R.T.).
There were a number of duplicated definitions in those two acts, and the following standards were followed in drafting this bill:
Where a definition related primarily to registration, the I.V.L. definition was used. Where it related to traffic, the U.A.R.T. definition was used.
Since the 1967 amendments to the Uniform Act Regulating Traffic conformed a substantial number of traffic definitions to those in the Illinois Vehicle Law, the vast majority of the definitions in this bill (HB 195) are based on the Illinois Vehicle Law. However, the following definitions relating to traffic matters were based on the U.A.R.T. definitions:
1-106. Bicycle.
1-131. Improved highway.
1-132. Intersection.
1-135. Lane-control signal.
1-154. Official traffic-control devices.
1-155. Owner.
1-156. Park or Parking.
1-157. Passenger car.
1-167. Railroad signs or signal.
1-175. Reversible lane.
1-177. Right-of-way.
1-200. Stop or stopping.
1-219. Yield Right-of-Way.
The 1968 amendatory bills relating to various definitions of “recreational vehicles”, were relied upon for the following definitions:
1-109. Camper.
1-127. House Car.
1-128. House trailer.
1-165. Private living coach.
1-169. Recreational vehicle.
The definition of “Motor vehicle” in Section 1-146 combines the I.V.L. and U.A.R.T. definitions as amended in 1967 so that it is clear that vehicles of the First Division are passenger cars, and all other vehicles are vehicles of the Second Division. Also, see Section 1457 defining “Passenger car”.
There is a deletion in Section 1-111 defining “Chauffeur”. The old law had an additional paragraph relating to an exemption for farm operations. New Section 6-102(5) provides for driving without a license, of road machinery or a farm tractor between the home farm and nearby farm lands. This deletion resulted from HB 1951 which revised the driver license law in 1967 effective January 1, 1969.

CROSS REFERENCES
Abandoned mobile homes, transportation over public streets, registration plates, see 210 ILCS 117/40.
Appropriation for administration of Illinois Vehicle Code, see 30 ILCS 105/8.3. Arson, damage to vehicles, see 720 ILCS 5/20-1.
Automobile junkyards, control and location, see 415 ILCS 95/1 et seq.
Bail, traffic offenses, see 725 ILCS 5/110-15; S. Ct. Rule 501 et seq.
Child passenger protection, see 625 ILCS 25/1 et seq.
Cigarettes, vehicle as constituting place of business within tax act, see 35 ILCS 130/1. Consumer Fraud Act, retail sales of motor vehicles, see 815 ILCS 505/2L. Crimes, vehicles used in commission, see 720 ILCS 5/36-1 et seq.
Crimes, vehicular hijacking, see 720 ILCS 5/18-3.
Criminal trespass to vehicles, see 720 ILCS 5/21-2.
Deadly weapons, concealing in vehicle, see 720 ILCS 5/24-1.
Department of Public Safety, enforcement of motor vehicle laws, see 20 ILCS 2610/16. Driver Education Act, see 105 ILCS 5/7-24 et seq.
Enforcement of motor vehicle law, power of Department of Public Safety, see 20 ILCS
2610/16.
Enforcement of motor vehicle laws by state highway police, see 20 ILCS 2610/16. Enforcement of motor vehicle ordinances by sheriff as supervisor of safety, see 55 ILCS
5/3-6036.
Firearms, concealment in vehicle as unlawful use, see 720 ILCS 5/24-1.
Garbage hauling vehicles, license, see 55 ILCS 5/5-8002.
Group vehicle insurance, policy requirements and mandatory requirements under code, see 215 ILCS 5/388a.
Highways,
Depositing matter likely to cause punctures, see 605 ILCS 5/9-121.
Protection in general, see 605 ILCS 5/9-102 et seq.
Indemnification for injuries caused by police officer, see 65 ILCS 5/1-4-6. Installment contracts, see 815 ILCS 375/1 et seq.
Insurance, domestic surplus line insurer, restrictions, see 215 ILCS 5/445a.
Insurance against hazards resulting from ownership, maintenance or use of automobile, see 215 ILCS 5/4, 5/378 et seq.
Livestock auction sales, record of motor vehicles delivering livestock, see 225 ILCS
640/7.
Loss and restoration of rights, application of law, see 730 ILCS 5/5-5-5.
Motor fuel tax, see 35 ILCS 505/1 et seq.
Motor Vehicle Retail Installment Sales Act, see 815 ILCS 375/1 et seq.
Motor vehicles, financing affiliates, licensing, see 625 ILCS 5/5-101.1.
Municipalities,
Code hearing departments, adjudicatory authority, see 65 ILCS 5/1-2.2-10.
Licensing and control of commercial vehicles, see 65 ILCS 5/11-41-1, 5/11-41-2. Regulation of vehicles, see 65 ILCS 5/11-40-1 et seq.
Taxes on vehicles, see 65 ILCS 5/8-11-4.
Wrecked motor vehicles, dealer regulation, see 65 ILCS 5/11-42-3.
Notary’s fee for filling out automobile applications, see 5 ILCS 312/3-104.
Public utilities motor vehicle lines, terminable permits, see 65 ILCS 5/11- 89-1 et seq. Punctures, deposit in highway of matter likely to cause, see 605 ILCS 5/9- 121.
Races and stunt events, permit in counties of 500,000 or less, see 55 ILCS 5/5-9001, 5/5-
9002.
Railroads, operation of motor vehicles for transportation of persons and property, see 610 ILCS 60/1.
Reckless homicide in driving of a motor vehicle, see 720 ILCS 5/9-3. Retail installment sales of motor vehicles, see 815 ILCS 375/1 et seq. Sale and distribution of driver’s information, see 625 ILCS 5/2-123.
Sales tax, see 35 ILCS 120/3.
Schools,
Driver education courses, see 105 ILCS 5/27-24.2.
Safety education, see 105 ILCS 5/27-17.
Serial numbers, altering or destroying manufacturer’s motor vehicle serial numbers, see 720 ILCS 335/1.
State highway police, enforcement of motor vehicle laws, see 20 ILCS 2610/16. State owned motor vehicles, identification, see 30 ILCS 610/0.01 et seq.
Traffic offense defined, bail, see S. Ct. Rule 501.
Uniform Foreign Money–Judgments, personal jurisdiction based on operation of motor vehicle, see 735 ILCS 5/12-622.
Use tax, see 35 ILCS 105/9.
Vehicular endangerment, see 720 ILCS 5/12-2.5. Vehicular invasion, see 720 ILCS 5/12-111
Warrant to search, see 725 ILCS 5/108-3.
Weighing, state highway police, see 20 1LCS 2610/16.
LAW REVIEW AND JOURNAL COMMENTARIES
Manufacturer’s duty to design automobiles to be safe. 55 Ill.B.J. 238 (1966).
State and local tax changes in 1965, 54 Ill.B.J. 112 (1965).
I.L.C.S. Ch. 625, ACT 5, Ch. 1, Refs & Annos, IL ST Ch. 625, ACT 5, Ch. 1, Refs &‚ Anos
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT
625 ILCS 5/1-116
Formerly cited as IL ST CH 95 1/2 1-116
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos)

Chapter 1. Title and Definitions (Refs & Annos)

5/1-116. Driver
⤠1-116. Driver. Every person who drives or is in actual physical control of a vehicle.
CREDIT(S)
P.A. 76-1586, ⤠1-116, eff. July 1, 1970.
FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 , 1-116.
SOURCE COMMENT
Section 1-112 of the Motor Vehicle Law of 1957 was taken verbatim from a similar definition contained in the Uniform Vehicle Code prepared by the National Committee on Uniform Traffic Laws and Ordinances. Subsection (c) of former section 8 of the Uniform Act Regulating Traffic (Ill.Rev.Stat.1955, ⤠106(c) ) was also identical.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1935, p. 1247, art. I, ⤠9.
Laws 1957, p. 2706, ⤠1-112.
I11.Rev.Stat.1967, ch. 95 1/2 , ‚§‚§ 1-112, 106.
CROSS REFERENCES
Driver education, see 105 ILCS 5/27-24 et seq. Driver training schools, see 625 ILCS 5/6-401 et seq.
RESEARCH REFERENCES Treatises and Practice Aids
IL Pattern Jury Instructions – Criminal 23.67, Definition of Transportation of Alcoholic Liquor in a Motor Vehicle-Driver.
625 I.L.C.S. 5/1-116, IL ST CH 625 ⤠5/1-116
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006
Reg. Sess.
END OF DOCUMENT

625 ILCS 5/1-126
Formerly cited as IL ST CH 95 1/2 11-126
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos) ‘Chapter 1. Title and Definitions (Refs & Annos) 5/1-126. Highway
⤠1-126. Highway.
The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel or located on public school property.
CREDIT(S)

P.A. 76-1586, ⤠1-126, eff. July 1, 1970. Amended by P.A. 92-780, 5, eff. Aug. 6,2002.
FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 ,t1-126.
SOURCE COMMENT
The 1919 Motor Vehicle Law defined the term “Improved Highway” to include roads of concrete, brick, asphalt, macadam and gravel. The original Motor Vehicle Law enacted in 1907 defined the term “Public Highways” as follows:
“Public highways shall include any highway, county road, state road, public street, avenue, alley, park, parkway, driveway, or public place in any County, City, Village, Incorporated Town or Towns.”
The same definition was reenacted in Section 20 of the 1911 Motor Vehicle Law, with the exception of the word “park”, which was eliminated. The terms “street” or “highway” were again defined by the Illinois Legislature in the Uniform Act Regulating Traffic enacted in 1935. Streets or highways were defined:
“The entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public as a matter of right, for purposes of vehicular traffic.” Ill.Rev.Stat.1955, ch. 95 1/2, ‚§ 109(a).
It is to be noted that the main difference between the definition of the term “highway” set out in the Uniform Traffic Act and that found in the Illinois Motor Vehicle Law lay in the addition of the phrase “as a matter of right”. Traffic safety officials preferred the definition in the Illinois Motor Vehicle Law since in their opinion traffic laws should apply if the public was using the highways regardless of whether or not they used the highway as a “matter of right”.
The term “highways” was again defined in 1953 by the Legislature in the Drivers License Act and such definition was identical with the definition found in the Motor Vehicle Law. The phrase “open to the use of the public as a matter of right” was interpreted by the Court in the case of Cihal v. Carver, 1948, 334 Ill.App. 234, 79 N.E.2d 82, to include any street or highway given to the public for public use and which every citizen had the right to use.
The Courts of Illinois stated, in the case of People v. Linde, 1930, 341 Ill. 269, 173 N.E. 361, 72 A.L.R. 997, that “the right to use public streets for purposes of travel is not absolute”. The Courts of Illinois have also stated that “no one has any inherent right to use the streets or highways as a place of business”. See People ex rel. Johns v. Thompson, 1930, 341 Ill. 166, 173 N.E. 137.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1919, p. 668, ‚§‚§ 1, 44.

Laws 1931, p. 780, ⤠1.

Laws 1935, p. 1247, Art. I, ⤠12.

Laws 1945, p. 1059, ⤠1.

Laws 1953, p. 476, ⤠6.

Laws 1953, p. 1578, ⤠1.

I11.Rev.Stat.1955, ch. 95 1/2, ‚§‚§ 1, 69, 73.6.

Laws 1957, p. 575, ⤠1.

Laws 1959, p. 177, ⤠1.

Laws 1959, p. 1772, ⤠1.

Laws 1959, p. 2209, ⤠1.

Laws 1961, p. 3627, ⤠1.

Laws 1963, p. 964, ⤠1.

Laws 1967, p. 3172, ⤠1.
I11.Rev.Stat.1969, ch. 95 1/2. ‚§‚§ 1-121, 109.
CROSS REFERENCES
Highways defined, size, weight and load, see 625 ILCS 5/15-100. Through highways, see 625 ILCS 5/1-205.
LIBRARY REFERENCES
Automobiles .13.
Westlaw Topic No. 48A. C.J.S. Motor Vehicles ⤠20.
RESEARCH REFERENCES
Encyclopedias
Illinois Law & Prac. Automobiles & Mtr. Vehicles ⤠3, Definitions.
Treatises and Practice Aids
IL Pattern Jury Instructions – Criminal 23.39, Definition of Driving While Driver’s License is Suspended or Revoked.
IL Pattern Jury Instructions – Criminal 23.65, Definition of Speeding.
IL Pattern Jury Instructions – Criminal 23.67, Definition of Transportation of Alcoholic Liquor in a Motor Vehicle-Driver.
IL Pattern Jury Instructions – Criminal 23.69, Definition of Possession of Alcoholic Liquor in a Motor Vehicle-Passenger.
IL Pattern Jury Instructions – Criminal 11.97B, Definition of Highway.
NOTES OF DECISIONS
Construction and application 2
Parking lots 5
Prior law 1
Public character of way 4 Regulation of use 3
1. Prior law
If public’s right to use drives, which were situated on state university campus, was not qualified or denied under proper grant of authority, roads were used by the public “as a matter of right,” within meaning of II 11-601 of former chapter 95 1/2 prohibiting speeding on a highway, defined in this paragraph as a way open to use of the public as a matter of right; in such case, speeding charge could properly be prosecuted under. People v. Tadd, App. 2 Dist.1973, 12 Ill.App.3d 391, 299 N.E.2d 8. Automobiles c.13
Driving of motor vehicle in privately owned parking lot by defendant, whose driver’s license had been suspended, did not constitute violation of Ill.Rev.Stat.1967, ch. 95 1/2,
6-303 (repealed. See ⤠6-303 former chapter 95 1/2 , prohibiting driving of motor vehicle on highway of state after suspension of license. People v. Kozak, App.1970, 130 Ill.App.2d 334, 264 N.E.2d 896. Automobiles c326
The phrase, “open to the use of the public as a matter of right,” in former ‚§ 109(a) of former chapter 95 1/2 defining street or highway, means street or highway given to public for public use and which every citizen has right to use. Cihal v. Carver, App.1948, 79 N.E.2d 82, 334 Ill.App. 234. Highways ‚£7,18; Municipal Corporations .c.–,703(1)
Former ‚§‚§ 98, 109, 111(a) and 187(a) of chapter 95 1/2 , having been a remedial statute relative to the parking of a motor vehicle, all general provisions, terms, phrases and expressions had to be liberally construed in order that the true intent and meaning of the Legislature could be fully carried out. Stine v. Union Elec. Co. of Ill., App.1940, 26 N.E.2d 433, 305 Ill.App. 37. Automobiles 12
2. Construction and application
Law relating to the movements of automobiles on a public highway, had regard to the traffic or use ordinarily made of such public highway, and contemplated the public use of every public highway for any lawful purpose. Fitzsimmons v. Snyder, 1913, 181 Ill.App. 70.
Chapter 11 of the Illinois Vehicle Code may not be enforced on privately maintained subdivision roads absent compliance with ⤠11-209.1, except that articles IV and V of the chapter may be enforced on private as well as public ways, as may other sections which specifically so provide. 1991 Op.Atty.Gen. No. 91-043.
3. Regulation of use
The State, in exercise of its police power, may regulate the use of its streets and highways in the public interest; thus, the State may empower one of its agencies, such as the board
of regents, to regulate the use of streets and roads located on a college campus in furtherance of particular needs and uses of the university; such regulation includes power to deny use of roads to the general public as a matter of right. People v. Tadd, App. 2 Dist.1973, 12 Ill.App.3d 391, 299 N.E.2d 8. Highways
No one has any inherent right to use streets or highways as a place of business. People ex rel. Johns v. Thompson, 1930, 173 N.E. 137, 341111. 166. Automobiles Municipal Corporations c669
4. Public character of way
Defendant who rode his motorcycle on streets located in village subdivision was riding on highways, as opposed to private roads, and thus, evidence was sufficient to support his conviction for operating motor vehicle on highway when his license was suspended; plat showed that streets in subdivision were dedicated to village, village expressly accepted the dedication, village’s role in ensuring maintenance of streets justified characterizing the streets as “publicly maintained,” and developer, in carrying out its contractual responsibility to maintain streets, acted under aegis of village and essentially performed public function. Village of Lake Villa v. Bransley, App. 2 Dist.2004, 284 Ill.Dec. 250, 348 IlLApp.3d 280, 809 N.E.2d 816. Automobiles c326
Even if maintenance was not physically undertaken by village employees or coordinated by department of the village government, streets which were located in subdivision in village were “publicly maintained” and, as such, constituted “highways” within meaning of statute defining “highway” as entire width between boundary lines of every way “publicly maintained” when any part thereof is open to use of public for purposes of vehicular travel and statute providing that any person who drives vehicle on “highway” when his license is suspended shall be guilty of a misdemeanor. Village of Lake Villa v. Bransley, App. 2 Dist.2004, 284 Ill.Dec. 250, 348 Ill.App.3d 280, 809 N.E.2d 816. Automobiles 326
Whether “street” or road is public highway may be proved by parol evidence. People v. Kyle, 1930, 173 N.E. 75, 341111. 31. Criminal Law c400(1)
A “public highway” includes public ways of every description which public have right to use for travel, such as city streets, footways, sidewalks, alleys, turnpikes, plank roads, and bridges. Manimina v. Alexander Auto Service Co., 1928, 164 N.E. 173, 333 Ill. 158.
Fact that a particular road is privately maintained does not necessarily make such a road a “private road”. 1975 Op.Atty.Gen. No. S-858.
5. Parking lots
Publicly maintained parking lot that was open to public use was public highway for purposes of summary driver’s license suspension statute, so that driver asleep in parking lot with his car engine running impliedly consented to blood alcohol test. People v. Culbertson, App. 2 Dist. 1994, 196 Ill.Dec. 554, 258 Ill.App.3d 294, 630 N.E.2d 489.
Automobiles 144.1(1.11)
Word “highway,” within this paragraph is broad enough to encompass publicly maintained parking lots. People v. Jensen, App. 1 Dist.1976, 37 Ill.App.3d 1010, 347 N.E.2d 371.
Defendant was driving on a “highway” and, therefore, was in violation of statutory proscription when he drove his vehicle in a parking lot of a forest preserve district while his driver’s license was under suspension. People v. Jensen, App. 1 Dist.1976, 37 Ill.App.3d 1010, 347 N.E.2d 371. Automobiles 4‚º.326
625 I.L.C.S. 5/1-126, IL ST CH 625 ⤠5/1-126
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT

625 ILCS 5/1-173
Formerly cited as IL ST CH 95 1/2 1-173
West’s Smith-Hurd Illinois Compiled Statutes Annotated Currentness
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos) ’0-Chapter 1. Title and Definitions (Refs & Annos) 45/1-173. Resident
⤠1-173. Resident. (a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.

CREDIT(S)
P.A. 76-1586, ⤠1-173, eff. July 1, 1970.
FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 , 1-173.
SOURCE COMMENT
This term was not defined in the 1919 Motor Vehicle Law nor was it defined in the Uniform Vehicle Code. The original 1907 Motor Vehicle Law provided an exemption for non-resident’s registration of their motor vehicles provided the owner thereof had complied with the law requiring the registration of motor vehicles in force in the State of his residence, and further provided that the registration number was conspicuously displayed on the motor vehicle. This exemption was continued in the 1911 Motor Vehicle Law and a “non-resident” was defined: “to mean a person residing in another State and temporarily sojourning within this State for a period of 60 days or less in any one year”. The exemption for non-residents was set out in Section 20 of the 1919 Motor Vehicle Law. The exemption was restricted however and “foreign corporations” owning or maintaining or operating places of business in Illinois and using motor vehicles or motor bicycles in connection with such places of business were required to register such motor vehicles or motor bicycles so used in connection with such places of business. Exemptions from registration for non-residents was further qualified by the addition of a requirement that “like exemptions and privileges” were granted to motor vehicles and motor bicycles duly registered under the laws of and owned by residents of Illinois by the State of residence of such non-resident. The definition of “non-resident” as set out in the 1911 Motor Vehicle Law was continued in Section 20 of the Motor Vehicle Law of 1919. The 1919 Motor Vehicle Law was amended in an Act of 1931 deleting this paragraph defining a non-resident.
There had been no determinations prior to adoption of the Motor Vehicle Law of 1957 by Illinois courts of whether or not the term resident was synonymous with the term domicile in regard to natural persons, but it had generally been regarded as having the same meaning as domicile by the enforcement authorities. “Residents” were defined to include partnerships, firms or associations if their principal place of business was located in the State of Illinois. The determination of “principal place of business” was a factual determination, however, in general it was the place where the partners transacted their principal business, kept their central file of records and maintained their principal executive offices.
A. corporation was deemed to be a resident of the State of Illinois if it was either incorporated in the State of Illinois, or if its principal place of business was in the State of Illinois. Prior to the effective date of Illinois Motor Vehicle Law on January 1, 1958, a corporation was deemed a resident of the State of Illinois if it were incorporated in the State of Illinois. (See Home Life Ins. Co. of New York v. State, 2 Ill.Ct.C1. 50 and Thornton v. Nome & Sinook Co., 260 Ill.App. 76). It was the purpose of the Illinois
Motor Vehicle Law, former section 1-155 of this chapter, to require the registration of vehicles using Illinois highways by foreign corporations, incorporated in other states such as Delaware, if their “principal place of business” was located in Illinois.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1957, p. 2706, ⤠1-155.

Ill. Rev.Stat.1967, ch. 95 1/2, ⤠1-155.
RESEARCH REFERENCES
Encyclopedias
Illinois Law & Prac. Automobiles & Mtr. Vehicles ‚§ 268, Process‚”Service on Secretary cf State for Nonresident Defendants–Persons Subject to Substituted Service.
NOTES OF DECISIONS
Prior law 1
1. Prior law
Term “resident” is synonymous with “domicile” for purposes of 10-301 of former diapter 95 1/2. Hatcher v. Anders, App. 2 Dist. 1983, 72 Ill.Dec. 769, 117 Ill.App.3d 236, 453 N.E.2d 74. Automobiles 235
6’25 I.L.C.S. 5/1-173, IL ST CH 625 ‚§ 5/1-173
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT

625 ILCS 5/6-700
Formerly cited as IL ST CH 95 1/2 6-700
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos)
10-Chapter 6. The Illinois Driver Licensing Law (Refs & Annos) Article VII. Driver License Compact (Refs & Annos) 4-700. Defm!tions
⤠6-700. Definitions. As used in this compact:
(a) “State” means a state, territory or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.
(b) “Home state” means the state which has issued and has the power to suspend or revoke the use of the license or permit to operate a motor vehicle.
(c) “Conviction” means a conviction of any offense related to the use or operation of a motor vehicle which is prohibited by state law, municipal ordinance or administrative rule or regulation, or a forfeiture of bail, bond or other security deposited to secure appearance by a person charged with having committed any such offense, and which conviction or forfeiture is required to be reported to the licensing authority.
CREDIT(S)
P.A. 76-1586, ⤠6-700, added byP.A. 76-1615, ⤠1, eff. July 1, 1970. FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 , ⦠6-700.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1963,p.3161, 1.
I11.Rev.Stat.1967, ch. 95 1/2 , ⤠501.
Complementary Legislation:
Ala.‚”Code 1975, 32-6-30 to 32-6-36.
Ariz.–A.R.S. ‚§ 28-1851 to 28-1855.
ArL‚”A.C.A. 27-17-101 to 27-17-106.
Cal.‚”West’s Ann.Cal.Vehicle Code, 15000 to 15003, 15020 to 15028.
Colo..‚”West’s C.R.S.A. 24-60-1101 to 24-60-1107.
Dei.–21 Del.C. 8101.
D.C.‚”D.C. Official Code, 2001 Ed. 50-1001, 50-1002.
Fla.‚”West’s F.S.A. H 322.43 to 322.48.
Hawaii–HR S ‚§‚§ 286C-1, 286C-2.

Idaho–I.C. ‚§‚§ 49-2001 to 49-2003.

Illinois–S.H.A. 625 ILCS 5/6-700 to 5/6-708.
Ind.-West’s A.I.C. 9-28-1-1 to 9-28-1-6.

Iowa–I.C.A. ‚§‚§ 321C.1, 321C.2.

Kan.–K.S.A. 8-1212.
La.–LSA-R.S. 32:1420 to 32:1425.

Maine–29-A M.R.S.A. ‚§‚§ 1451 to 1475.

Md.-Code, Transportation, ‚§‚§ 16-701 to 16-708.
Mass.–M.G.L.A. c. 90, ‚§ 30B.

Minn.–M.S.A. ‚§‚§ 171.50 to 171.56.

Miss.–Code 1972, ‚§‚§ 63-1-101 to 63-1-113.

Mo.–V.A.M.S. ‚§‚§ 302.600, 302.605.

Mt.-M.C.A. 61-5-401 to 61-5-406.

Neb.–R.R.S. 1943, ‚§A1-113.

Nev.–N.R.S. 483.010 to 483.630.

N.H.–RSA 263.77.
N.J.–N.J.S.A. 39:5D-1 to 39:5D-14.
N.M.–NMSA 1978, ‚§‚§ 66-5-49 to 66-5-51.
N.Y.–McKinney’s Vehicle & Traffic Law, ‚§ 516.
N.C.–G.S. ‚§‚§ 20-4.21 to 20-4.30.
Ohio–R.C. ‚§‚§ 4507.60 to 4507.63.
Ok1.–47 Okl.St.Ann. ‚§‚§ 781 to 788.
Pa.–75 Pa.C.S.A. ‚§‚§ 1581 to 1585.
S.C.–Code 1976, ‚§‚§ 56-1-610 to 56-1-690.
Tex.–V.T.C.A., Transportation Code ‚§‚§ 523.001 to 523.011.

Utah–U.C.A. 1953, 53-3-601 to 53-3-607.
Vt.–23 V.S.A. ‚§‚§ 3901 to 3910.
Va.–Code 1950, ‚§‚§ 46.2-483 to 46.2-488.
Wash.–West’s RCWA 46.21.010 to 46.21.040.
W.Va.-Code, 17B-1A-1, 17B-1A-2.
Wyo.–Wyo.Stat.Ann. ‚§‚§ 31-7-201, 31-7-202.
LIBRARY REFERENCES
States
Westlaw Topic No. 360.
C.J.S. States ‚§‚§ 31 to 32, 143.
RESEARCH REFERENCES
Encyclopedias
Illinois Law & Prac. Automobiles & Mtr. Vehicles ⤠112, Out-Of-State Misconduct or Convictions.
NOTES OF DECISIONS
Conviction 1
1. Conviction
Georia judgment upon plea of nob o contendere to driving under influence charge constitutes “conviction” for purposes of driver license compact. Rigney v. Edgar, App. 1 Dist.1985, 90 Ill.Dec. 548, 135 I1l.App.3d 893, 482 N.E.2d 367. appeal denied. Automobiles .,( 144.1(3)
625 5/6-700, IL ST CH 625 ⤠5/6-700
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT

 

CASE FROM MOBILE ALABAMA ILLUSTRATING THE COMMERCIAL NATURE OF LICENSING UNDER POLICE POWER

36 L.R.A. 615,112 Ala. 654,21 So. 344
Supreme Court of Alabama.
DAVIS V. PETRINOVICH, TAX COLLECTOR. E1 Rehearing denied February 4, 1897.
Nov. 24, 1896.
Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.
Suit by Franklin P. Davis against Frank Petrinovich, tax collector. Bill dismissed, and complainant appeals. Reversed.
*344 The mayor and general council of the city of Mobile, on March 16, 1896, adopted a general license ordinance, levying a license tax against all trades and occupations carried on in said city, and included therein a license tax on bicycles. The appellant in this case, Franklin P. Davis, a citizen and taxpayer of the city of Mobile, filed the present bill against the appellee, Frank Petrinovich, tax collector of the city of Mobile, under the provisions of section 45 of the act granting a charter to the city of Mobile (Acts 1886-87, p. 223), to enjoin the collection of said license tax. The complainant owned and used a bicycle, solely and exclusively for his pleasure and convenience, and his bicycle was not used in any way for the transportation of goods or merchandise, and was not kept for hire at any place in the city of Mobile. The other facts of the case are sufficiently stated in the opinion. The defendant moved to dissolve the temporary injunction which was issued, and to dismiss the bill for want of equity. This motion was considered on the final hearing. Upon the final submission of the cause, on the pleadings and proof, the chancellor decreed that the motions were well taken; and ordered that the cause be dismissed, and that the injunction theretofore issued be dissolved.

HARALSON, J.
1. The fact of the pendency of another suit by one Rolston against the defendant in this case, in the same court with this suit, and in reference to the same subject-matter, is not well taken. It was admitted on the trial of this case, that the case of Rolston was instituted in the Mobile chancery court, on the 24th March, 1896; that it “was substantially the same in object and almost identical in language with that of Davis v. Petrinovich, Tax Collector [this case], and that it was brought in behalf of all parties in interest by Hugh Rolston, but was amended on the hearing, so as to be only on his own account,” and that the “said Rolston bill was answered, evidence taken and case submitted and argued on the pleadings and testimony, at the same time with this, the Davis case.” What disposition, if any, has been made of the Rolston case,-whether or not it has been decided,-is not shown, nor is it shown, that said cause was submitted on the same evidence even, as that on which this cause was submitted and tried. That cause, then, confessedly, is not between the same parties as those to this case, though relating to the same subject-matter; is between different parties; is not shown to be on the same evidence on which this cause was tried, and is still pending undetermined in said court. All that is shown is, that in said suit, the plaintiff in this cause contributed one dollar towards paying the expenses of conducting it. These facts furnished no ground for abating the present suit. Foster v. Napier, 73 Ala. 595.
2. That a bicycle comes properly within the definition of a carriage or vehicle, we apprehend can no longer admit of dispute. A vehicle is defined to be, “any carriage moving on land, either on wheels or on runners; a conveyance; that which is used as an instrument of conveyance, transmission, or communication.” Cent. Dict. And a carriage in the same lexicon is defined as, “that which is used for carrying or transporting, especially on or over a solid surface. A wheeled vehicle for the conveyance of persons.” In Taylor v. Goodwin, 4 Q. B. Div. 228, it was held, that a person riding a bicycle on a highway at such a place as to be dangerous to passers-by, may be convicted under an act to prevent any person riding any horse or beast, or driving any sort of carriage furiously, so as to endanger the life or limb of any passenger. The court said: “It may be that bicycles were unknown at the time when the act passed, but the legislature clearly desired to prohibit the use of any sort of carriage in any manner dangerous to the life or limb of any passenger. The question is, whether a bicycle is a carriage within the meaning of the act. I think the word ‘carriage’ is large enough to include a machine such as a bicycle which carries the person who gets upon it, and I think such person may be said to drive it.” In Williams v. Ellis, 5 Q. B. Div. 175, it was held, in construction of the act allowing tolls to be collected at a gate on a turnpike road, that a bicycle was not embraced within the purview of the act imposing a toll of 6 pence, “for every *** sociable, chariot, berlin, landau, &c., or other such carriage,” for the reason, that the act imposed a toll on particular carriages which were described as, “or other such carriages,” which latter must be ejusdem generis with the carriages previously specified. The case of Taylor v. Goodwin was referred to in this later decision with approval. It is a *345 matter of common knowledge, that the bicycle is now used for the purpose of the conveyance of parties owning or hiring the wheels, largely for the purpose of pleasure and exercise, and that in cities and towns, especially, they are coming to be used for the transportation, from point to point, of packages of goods and merchandise such as they are fitted to carry. What further possibilities await the bicycle as a means of the transportation of persons, goods and merchandise, it is not important now to consider or predict. They remain to be developed. On principle and authority, however, it may be said, that it has taken its place safely with the vehicles and carriages of the time, entitled to the rights of the road and street equally with them, and is subject in its use to the same liabilities. Its use upon the highways of the country and upon the streets and sidewalks of towns and cities may be regulated under legislative and delegated municipal authority. Potter’s Law of Road & Roadside, 157; Elliott, Roads & S. pp. 331, 635; Horr & B. Mun. Ord. ‚§ 247; Clemenston, Road Rights, ‚§‚§ 99, 106-109; Mercer v. Corbin, 117 Ind. 450,20 N. E. 132; Holland v. Bartch, 120 Ind. 46,22 N. E. 83, and authorities supra; Thompson v. Dodge, 58 Minn. 555, 60 N. W. 545.
3. Section 26 of the charter of Mobile (Acts 1886-87, p. 240), provides, that “the general council is authorized and empowered to levy and collect for each year of its existence, upon all real and personal property, and all subjects of state taxation within said city of Mobile, except the tax levied on polls, a tax of not exceeding six-tenths of one per cent. of the value of such property, or subjects of taxation during the year preceding that for which the general council may assess and levy the tax above provided for.” By section 21 of the amended charter (Acts 1894-95, p. 387), the regulation of “hackney-coaches, carriages, wagons, carts and drays,” was conferred upon the general council, and section 40 of said amended charter provides, “that the said general council shall, besides the tax heretofore authorized (section 26), have the authority to assess and collect from all persons and corporations, trading and carrying on any business, trade or profession, by an agent or otherwise, within the limits of said corporation, a tax license which shall be fixed and declared each year by an ordinance of said corporation, and the license so said shall be issued and the amount imposed shall be collected as may be provided by ordinance of said corporation *** A vehicle license may be imposed in addition to business license, provided that said license shall only apply to vehicles used in the transportation of goods and merchandise, and vehicles used for hire at the public stands; *** that in addition to the license tax imposed on livery stables, there shall be an additional license tax not exceeding one dollar for every carriage, and fifty cents for every buggy owned and used for hire by such livery stable.”
4. On the 16th March, 1896, the general council of Mobile adopted a general license ordinance, providing, “That a license-tax for the fiscal year, beginning on the 16th March, 1896, and ending on the 14th March, 1897, is hereby imposed and assessed on each person, firm, association, or corporation trading, or carrying on any business, trade or profession, by agent or otherwise within the limits of the city of Mobile,” followed by a schedule of special licenses required in each instance, among others, specifying bicycles,-”including tags furnished for same,-$1.00.” The imposition of such a license tax, it has been well said, is such as may be referred to the taxing power, or to the police power,-to the latter, when its object is merely to regulate, and the amount levied is merely to pay the expenses of enforcing the regulation; including reasonable compensation for the additional expense of municipal supervision over the particular business or vocation; and to the taxing power, if its main object is revenue. If, however, it appears that the legislature has not bestowed the right to tax under either of these delegated powers, but has omitted it, the imposition of the tax is without legislative sanction and void. City of St. Louis v. Green, 7 Mo. App. 468; Id., 70 Mo. 562; 1 Dill. Mun. Corp. ‚§ 357; Burroughs, Tax’n, ‚§ 77; Van Hook v. City of Selma, 70 Ala. 361.
5. The only authority, then, appearing in the charter of said city, for levying a distinctive license tax on vehicles of any description, apart from the general police power to regulate them, is confined by the terms of the act (section 21) to “hackney coaches, carriages, wagons, hacks and drays,” and to such only of these, as are used in the transportation of goods and merchandise; to vehicles used for hire at the public stands, and on carriages and buggies owned and used for hire by livery stables. If a business man in Mobile pays a business license tax, as he may be required under the charter to do, he may be also required, under the charter, to pay an additional license tax on any vehicle he uses in his business, in the transportation of goods and merchandise, and he is relieved from such a tax on other vehicles he may own. It was not within the contemplation of the legislature, as is evident from the text, that an inhabitant of that city should be required to pay such a tax on his pleasure carriage or vehicle, of whatever description, if not used in the business of transportation of goods and merchandise. The policy of the legislature seems to have been to confine the license tax on vehicles, whether imposed under the police or taxing power, to such of them as are used in the transportation of goods and merchandise, and those kept for hire, and to relieve all other carriages from such a tax. City of St. Louis v. Green, 46 Mo. 574; City of Hannibal v. Price, 29 Mo. App. 280.
6. In the charter (Acts 1886-87, p. 223), in section 45, after limiting the rate of taxation, *346 it is provided: “Nor shall said general council levy any tax for any other purpose than those specially stated in this act, and any tax or license charges other than those authorized by said sections 26 and 40 (of the charter) which said general council may levy or attempt to levy, shall be null and void and not collectible, and any tax-payer may enjoin by bill in chancery, and restraining without bond, the tax-collector of the city of Mobile from collecting any tax which said general council may levy or attempt to impose beyond the aforesaid tax and license charges. The provisions of this act shall not be enlarged, or extended so as to be made applicable to or for any other purposes than those stated in this act.” It is manifest, therefore, that the levy of said bicycle tax was outside of the powers of the general council to levy, and was illegally levied. It is provided again, that the taxes levied shall have the force and effect of a judgment against the person assessed therewith, to which a preference is given over all other securities and incumbrances, and for the collection of which a lien is given on all the real and personal property of the tax payer; that the mayor shall certify on the tax book, that said taxes have been fixed and levied, and append his warrant, directed to the tax collector, authorizing and commanding him to collect the taxes so levied, and shall deliver said tax book and warrant to the tax collector, whose duty it is made forthwith to notify the public by advertisement for 30 days in some newspaper published in the city, that he is ready to receive payment of the taxes so levied; that the tax collector shall be charged with the whole amount of the assessed taxes for the year; that he shall issue garnishment process for the collection of taxes and licenses as on judgment returnable to any court having jurisdiction of the amount; that after the expiration of 90 days from the first publication of the tax collector’s notice, as aforesaid, he may levy upon and seize any personal property, if any there be, or if there be none, or not sufficient personal property, then upon the real estate of the delinquent tax payer; and that he shall be charged with and accountable for the whole amount of the assessed taxes for the year, and shall only discharge himself from such accountability by showing that the amounts unpaid could not have been collected by the exercise of the means given him. Sections 31, 32, 36, 39 of original charter (Acts 1886-87, pp. 242,243; Amendatory Acts 1894-95, p. 387, ‚§ 6). Without these provisions, it may be, that the tax being illegal, there would be an adequate remedy at law against its collection, and chancery would not enjoin (High, Inj. ‚§ 543, 545); and that, $20 being the fixed minimum of chancery jurisdiction, the court would not entertain a bill to enjoin the collection of a tax of $1. Hall v. Cannte, 22 Ala. 650; Campbell v. Conner, 78 Ala. 211. But, the statute takes the case from the influence of any such rules as are applicable to the general exercise of the jurisdiction of equity courts; and any taxpayer is authorized by the charter, as we have seen, to enjoin the levy and collection of any illegal tax levied and assessed by the general council. The act in terms bestows the right of injunction without bond, in favor of the taxpayer, whenever the general council “may levy or attempt to impose (any tax or license) beyond the aforesaid tax and license charges,” which may not be rightfully levied and collected. It is idle to say, that the general council have not levied and attempted to impose this illegal tax, or that the collector has no intention of collecting the same, because it is illegal. It has been levied, and the collector is charged with it, and by the terms of the charter, must account for and pay it himself unless he has been unable to do so after he has used all means conferred on him for its collection, and the collector in this suit is seeking to maintain the legality of said levy. The wrong done the appellant was in the imposition of said illegal tax, and it was not incumbent on him to delay filing his bill until the further wrong of a levy on his property had occurred or his creditors were garnished. If so, the very purpose of the legislature in granting relief against such unlawful menaces of the taxpayer’s rights would thereby be defeated. 1 High, Inj. ‚§ 18.
7. The proofs showed that appellant was a taxpayer of the city; that this illegal tax had been levied, and there was an attempt to impose it on his property; that the collector had made the publication as required by the statute; that the bicycle was his private carriage, used alone for the purposes of pleasure, and not for the transportation of goods and merchandise. The bill should not have been dismissed for want of equity, but the motion to dismiss it on that account should have been overruled, and the injunction perpetuated. Reversed, and a decree will be here rendered, restoring the injunction that had been granted, and making it perpetual. Reversed and rendered.

Ala. 1896.
Davis v. Petrinovich
36 L.R.A. 615, 112 Ala. 654, 21 So. 344
END OF DOCUMENT

 

OTHER NOTES AND SOURCES

S.H.A. ch. 95‚½, ‚§‚§ 6-101 et seq.
Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).
11 De Paul L.Rev. 125 (1961)

References

⤠97. Nature and Effect of License; Transfer

Legal Encyclopedias

C.J.S., Motor Vehicles ⤠159
A license to operate a motor vehicle is a mere privilege.
A license to operate a motor vehicle on the public highways is a mere privilege and is not a property right. [Foot Note 38]

While the Illinois Driver Licensing Law no longer provides for chauffeur’s licenses, as discussed supra ‚§ 93, the licensing of chauffeurs was a grant, personal to the applicant, did not extend to anyone else, [Foot Note 39] and a chauffeur’s license was not transferable. [Foot Note 40]
[Foot Note 38] See 1947 Op.Atty.Gen. 115.

[Foot Note 39] Use by son of father’s license

Boy under age of eighteen years, ineligible to obtain a chauffeur’s license, has no legal right to operate father’s taxicab, although father has a chauffeur’s license.‚”See 1926 Op.Atty.Gen. 507.

[Foot Note 40] See 1916 Op.Atty.Gen. 910.
END OF SECTION
Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 9. Crimes and Prosecutions
B. Particular Offenses

Correlation Table  References

‚§ 425. Driving without Driver’s License

Legal Encyclopedias

C.J.S., Motor Vehicles ⤠639(1)
It is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit.
Under the Illinois Vehicle Code, [Foot Note 97] and under some municipal ordinances, [Foot Note 98] it is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit. [Foot Note 99]

It is essential for a conviction of failure to have a driver’s license when operating a motor vehicle that there be proof beyond a reasonable doubt that the defendant was driving the automobile at the time in question. [Foot Note 1]
CUMULATIVE SUPPLEMENT

Cases:

Driver’s arrest outside jurisdiction of arresting officer was within officers statutory authority to arrest, where officer observed driver commit traffic infraction forming sufficient basis for stop while within officer’s jurisdiction and formed initial suspicion that driver was driving with suspended license while driver was within officer’s jurisdiction. People v. Schaefer, 343 Ill. App. 3d 159, 277 Ill. Dec. 600, 796 N.E.2d 686 (2d Dist. 2003).
[END]
4 Ill. Law and Prac. Automobiles and Motor Vehicles ⤠91

Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 4. Licensing and Regulation of Drivers
A. In General

References

⤠91. General Considerations
AutomobilesKey Symbol130, 136, 145

Legal Encyclopedias

C.J.S., Motor Vehicles ‚§‚§ 146 et seq.

Forms

Modern Legal Forms, Automobiles
No person except those expressly exempted may drive a motor vehicle on an Illinois highway unless he has a valid license or permit.
Under the Illinois Driver Licensing Law, which is part of the Illinois Vehicle Code of 1969, effective July 1, 1970, and which regulates the privilege of operating motor vehicles on the highways, no person except those expressly exempted shall drive any motor vehicle on a highway in the State of Illinois unless he has a valid license or permit, or a restricted license or permit, issued under the Act. [Foot Note 1]

The Secretary of State is charged with the administration of the Act and may make and enforce rules and regulations relating to its administration. [Foot Note 2]

The failure of a driver to have a license has no logical relevance to the issues of negligence or contributory negligence. [Foot Note 3]

Local regulations. Within constitutional limitations, municipalities may regulate and license drivers of motor vehicles to the extent that authority has been delegated by the General Assembly; [Foot Note 4] but any person licensed as a driver under the Driver Licensing Law may not be required by any city, village, incorporated town or other municipal corporation to obtain any other license to exercise the privilege thereby granted. [Foot Note 5]

Under the Cities and Villages Act, municipalities have the power to license, tax, and regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen, and all others pursuing like occupations, and to prescribe their compensation; [Foot Note 6] and motor trucks, motor driven commercial vehicles, and motor vehicles which are used for public hire are excepted from the prohibition of a municipal tax or license fee. [Foot Note 7]

The City of Chicago has the right to enact ordinances restricting the use of its streets as a place of business by taxicab drivers unless they are properly licensed. [Foot Note 8] It has been held that an ordinance which compels a person who uses his automobile for his private business and pleasure only to submit to an examination and to take out a license imposes a burden on one class of citizens in the use of the streets not imposed on the others, and that it is beyond the power of a municipality and void. [Foot Note 9]

In any event an ordinance which is unreasonable and arbitrary is invalid. [Foot Note 10]

Driver’s license medical review. A Driver’s License Medical Advisory Board has been established within the Office of Secretary of State, to establish standards for determining the degree to which a person’s medical condition constitutes a limitation to the person’s ability to operate a motor vehicle or causes the person to be a driving hazard. Cases shall be referred to the Board by the Secretary, for medical evaluation of the person under review, and to determine what medical conditions exist that may impair the individual’s ability to operate a motor vehicle safely. [Foot Note 10.5]

Driver’s duty to report medical condition. Every driver shall report to the Secretary any medical condition that is likely to cause loss of consciousness or any loss of ability to safely operate a motor vehicle within 10 days of the driver becoming aware of the condition. [Foot Note 10.10]
[Foot Note 1] S.H.A. ch. 95‚½, ‚§‚§ 6-101 et seq.

S.H.A. ch. 95‚½, ‚¶‚¶6-101 et seq., is now 625 ILCS 5/6-101 et seq., recodified effective January 1, 1993.

See 1958 Op.Atty.Gen. 218; 1961 Op.Atty.Gen. 16.

Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).

People v. Frye, 1983, 4 Dist., 447 N.E.2d 1065, 69 Ill.Dec. 630, 113 Ill.App.3d 853 (possession of valid license at any time is prima facie proof that holder must have driven upon highways of state as predicate for application of implied consent statute).

[Foot Note 2] S.H.A. ch. 95‚½, ‚§ 6-211.

S.H.A. ch. 95‚½, ‚¶6-211, is now 625 ILCS 5/6-211, recodified effective January 1, 1993.

Revocation of driving school license

Perez v. Edgar, 1982, 436 N.E.2d 639, 62 Ill.Dec. 613, 106 Ill.App.3d 981.

[Foot Note 3] Perry v. Richerson, 1954, 122 N.E.2d 75, 3 Ill.App.2d 338.

[Foot Note 4] Power conferred by charter

City of Chicago Charter, ‚§ 1, cls. 7, 9, 66, delegating police power to the city, and giving power over its streets, authorized it to pass Code Ordinances 1911, ‚§ 2696, prohibiting the use of automobiles in the transportation of passengers or merchandise by a person not competent who has not been examined and licensed.‚”City of Chicago v. Kluever, 1913, 100 N.E. 917, 257 Ill. 317.

[Foot Note 5] S.H.A. ch. 95‚½, ‚§ 6-101(c).

S.H.A. ch. 95‚½, ‚¶6-101(c), is now 625 ILCS 5/6-101(c), recodified effective January 1, 1993.

[Foot Note 6] S.H.A. ch. 24, ⤠11-42-6.

S.H.A. ch. 24, ‚¶11-42-6, is now 65 ILCS 5/11-42-6, recodified effective January 1, 1993.

[Foot Note 7] S.H.A. ch. 24, ⤠8-11-4.

S.H.A. ch. 24, ‚¶8-11-4, was amended in 1983 (provision deleted).

Ordinance requiring license

Cities and villages may adopt ordinances not inconsistent with Motor Vehicle Law requiring all persons operating cars for public hire or commercial purposes to secure a license so to do.‚”See 1914 Op.Atty.Gen. 1131.

[Foot Note 8] City of Chicago v. Dorband, 1939, 18 N.E.2d 107, 297 Ill.App. 617.

People v. Thompson, 1922, 225 Ill.App. 567.

[Foot Note 9] City of Chicago v. Banker, 1904, 112 Ill.App. 94 (Chicago ordinance of June 30, 1902).

[Foot Note 10] Ambulance driver

Portion of ordinance prohibiting issuance of ambulance attendant-driver’s license to any person at any time after conviction of crime involving use of deadly weapon, traffic in narcotic drugs, infamous crime against nature, incest or rape did not bear any relationship to public health or safety, was unreasonable and arbitrary and was invalid as to ambulance attendant-driver who owned ambulance service and had been convicted of armed robbery 17 years prior to application for license.‚”Roth v. Daley, 1970, 256 N.E.2d 166, 119 Ill.App.2d 462.

[Foot Note 10.5] S.H.A. ch. 95‚½ ‚¶‚¶6900 et seq. is now 625 ILCS 5/6-900 et seq., recodified in 1993.

S.H.A. ch. 95‚½, ‚¶‚¶6-900 et seq., added in 1992.

[Foot Note 10.10] 625 ILCS 5/6-116.5, added in 1996.
IL-LP AUTOS ⤠91

END OF SECTION

C.J.S., Motor Vehicles ‚§‚§ 146 et seq.

60 C.J.S. Motor Vehicles ⤠262

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary‚  Correlation Table

⤠262. Generally

License regulations apply to the driver of a motor vehicle, and must be complied with by all coming within the terms of such regulations.
Generally, by virtue of statutory provisions or regulations, only persons who hold licenses as chauffeurs or operators may lawfully operate or drive motor vehicles upon the public highways.[Foot Note 1] Where the operator of a private commercial carrier is obligated by law to obtain a commercial driver’s license, this requirement applies to all persons regularly engaged as operators of such carriers.[Foot Note 2] In some jurisdictions, a person who operates a motor vehicle for hire must obtain a special license,[Foot Note 3] but if a vehicle is operated for purposes other than furnishing transportation for hire no special license is required.[Foot Note 4]

Where every operator is required to obtain a license, the license is personal to the particular person who operates the motor vehicle and must be obtained by, and issued to, him or her.[Foot Note 5] Therefore, a corporation or partnership which owns or controls a motor vehicle is not entitled to a license to operate it.[Foot Note 6]

Where statutorily provided that no person may operate a motor vehicle for hire or as a chauffeur unless specially licensed so to do, an owner who is licensed merely as an operator, and not as a chauffeur, is not authorized to operate his or her automobile for hire.[Foot Note 7] However, a person holding a license as a commercial operator or chauffeur is not required to have an ordinary operator’s license.[Foot Note 8]

Unless expressly exempted, state officers and employees come within the requirements of licensing provisions broad enough in their terms to include such persons.[Foot Note 9] A municipality operating busses running through another city is required to comply with reasonable regulations concerning the qualifications of drivers of such busses.[Foot Note 10]
Steering towed car.

A person steering a disabled motor vehicle which is being towed by another car is not operating or driving a motor vehicle within the meaning of a statutory provision requiring an operator or driver to be licensed.[Foot Note 11]
[Foot Note 1] Tex.‚”Leatherman v. Starkey, 356 S.W.2d 151 (Tex. Civ. App. Amarillo 1962), writ refused n.r.e., (Oct. 6, 1962).

Intent to change residence as affecting residence, see C.J.S., Domicile ‚§‚§ 14 to 17.

License not required for driver on unfinished road

W.Va.‚”State v. Boyles, 112 W. Va. 125, 163 S.E. 814 (1932).
No operating or driving where vehicle not started

N.Y.‚”Ricciardi v. McMahon, 163 Misc. 659, 299 N.Y.S. 440 (City Ct. 1937).
Intention to change residence

D.C.‚”Bush v. District of Columbia, 78 A.2d 234 (Mun. Ct. App. D.C. 1951).

[Foot Note 2] Driver employed by railroad

Miss.‚”Lumpkin v. Birdsong, 212 Miss. 616, 55 So. 2d 230 (1951).

[Foot Note 3] Operation for hire construed

R.I.‚”State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

[Foot Note 4] R.I.‚”State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

[Foot Note 5] N.H.‚”Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

Legal name requirement valid

U.S.‚”Forbush v. Wallace, 341 F. Supp. 217 (M.D. Ala. 1971), judgment aff’d, 405 U.S. 970, 92 S. Ct. 1197, 31 L. Ed. 2d 246 (1972).

[Foot Note 6] N.H.‚”Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

Registration of the vehicle in corporate or partnership name, see ⤠168.

[Foot Note 7] Mass.‚”Griffin v. Hustis, 234 Mass. 95, 125 N.E. 387 (1919).

[Foot Note 8] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 9] Mo.‚”City of St. Louis v. Carpenter, 341 S.W.2d 786, 87 A.L.R.2d 1219 (Mo. 1961).

[Foot Note 10] Ohio‚”Cleveland Ry. Co. v. Village of North Olmsted, 130 Ohio St. 144, 4 Ohio Op. 31, 198 N.E. 41, 101 A.L.R. 426 (1935).

[Foot Note 11] Ohio‚”City of Toledo v. Burks, 100 Ohio App. 127, 60 Ohio Op. 104, 136 N.E.2d 150 (6th Dist. Lucas County 1955).
END OF SECTION
60 C.J.S. Motor Vehicles ⤠256

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary‚  Correlation Table

⤠256. Purpose

Motor vehicle operators and chauffeurs are generally licensed by the state in the interest of public safety.
Generally, the purposes of requiring chauffeurs and operators to be licensed are to insure the competency of the operators of motor vehicles and to regulate the use of this means of rapid transit on the public highways, in the interest of public safety.[Foot Note 1] It is also the purpose of such licensing to furnish a further guaranty that proper use of the vehicle will be made,[Foot Note 2] and that it will be operated in compliance with applicable statutory provisions.[Foot Note 3] The purpose of requiring the operator of a motor vehicle to report changes of address to the commissioner of motor vehicles is identification of drivers and the facilitation of communication with them.[Foot Note 4]
[Foot Note 1] Nev.‚”State, Dept. of Motor Vehicles and Public Safety v. Miles, 111 Nev. 681, 895 P.2d 1316 (1995).

[Foot Note 2] State may make and enforce regulations reasonably calculated to promote care

Neb.‚”Russell v. State, Dept. of Motor Vehicles, 247 Neb. 885, 531 N.W.2d 212 (1995).

[Foot Note 3] N.H.‚”Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

Purpose of requirement that epilepsy patients be disclosed to licensing authority

U.S.‚”Harden v. Allstate Ins. Co., 883 F. Supp. 963 (D. Del. 1995).

[Foot Note 4] Conn.‚”State v. Baltromitis, 5 Conn. Cir. Ct. 72, 242 A.2d 99 (App. Div. 1967).
END OF SECTION
60 C.J.S. Motor Vehicles ⤠257

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary‚  Correlation Table

⤠257. Right to operate as privilege
AutomobilesKey Symbol130, 132 to 136, 143
The right to operate a motor vehicle is, generally, a privilege, not a right.
A license is, generally, merely a personal privilege,[Foot Note 1] which may be revoked.[Foot Note 2] Where a license is deemed a personal privilege, it is not a vested right,[Foot Note 3] nor is it considered a natural right[Foot Note 4] or a civil right.[Foot Note 5] A driver’s license is also not a contract or property right[Foot Note 6] in any legal or constitutional sense.[Foot Note 7] Neither is it a right of such a nature that it may be sold or assigned.[Foot Note 8] The payment by the licensee of the required fees upon the issuance to him or her of the operator’s license does not convert the privilege granted into a property right.[Foot Note 9]

In some jurisdictions, however, while still recognizing that a license is a personal privilege, a license is deemed in the nature of a right.[Foot Note 10] In other jurisdictions, a license is both a personal privilege and a property right.[Foot Note 11] In still other jurisdictions, a license to operate a motor vehicle is more of a property interest.[Foot Note 12] A license may also be determined to be a vested property right in the individual.[Foot Note 13]
[Foot Note 1] La.‚”State v. Jackson, 764 So. 2d 64 (La. 2000).

Highway driving a privilege, not a right

Ill.‚”People v. Jung, 192 Ill. 2d 1, 248 Ill. Dec. 258, 733 N.E.2d 1256 (2000).
Privilege not constitutionally guaranteed

N.D.‚”North Dakota Dept. of Transp. v. DuPaul, 487 N.W.2d 593 (N.D. 1992).
Conditional privilege

Va.‚”Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).
Important and valued privilege

Vt.‚”Bolio v. Malloy, 126 Vt. 424, 234 A.2d 336 (1967).
Limited right

Pa.‚”Com. v. Vivio, 209 Pa. Super. 90, 224 A.2d 777 (1966).
Qualified right

Mo.‚”Blydenburg v. David, 413 S.W.2d 284 (Mo. 1967).

[Foot Note 2] Mont.‚”Nelson v. Driscoll, 1999 MT 193, 295 Mont. 363, 983 P.2d 972 (1999).

Revocation or suspension of license, generally, see ‚§‚§ 290to 293.

[Foot Note 3] Cal.‚”O’Connor v. Superior Court, 90 Cal. App. 3d 107, 153 Cal. Rptr. 306 (1st Dist. 1979).

Not right entitled to protection against governmental interference or restriction

Colo.‚”People v. Zinn, 843 P.2d 1351 (Colo. 1993).

[Foot Note 4] Kan.‚”State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000).

Not absolute right

Ohio‚”Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

[Foot Note 5] Tex.‚”Allen v. State, 410 S.W.2d 52 (Tex. Civ. App. Houston 1966).

[Foot Note 6] Ohio‚”Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

[Foot Note 7] Cal.‚”Department of Motor Vehicles v. Superior Court, 58 Cal. App. 3d 936, 130 Cal. Rptr. 311 (1st Dist. 1976).

[Foot Note 8] N.Y.‚”City of Rochester v. Falk, 170 Misc. 238, 9 N.Y.S.2d 343 (City Ct. 1939).

[Foot Note 9] Kan.‚”State v. Finley, 198 Kan. 585, 426 P.2d 251 (1967), opinion withdrawn on other grounds on reh’g, 199 Kan. 615, 433 P.2d 414 (1967).

License fees, see ‚§‚§ 281to 283.

[Foot Note 10] N.D.‚”State ex rel. Hjelle v. A Motor Vehicle Described as a 1973 Brockway Tractor License No. 237342, Serial No. 79629, Trailer SN No. 75-2531-LB-150, 299 N.W.2d 557 (N.D. 1980).

Nonfundamental right

Va.‚”Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).

[Foot Note 11] Pa.‚”Com., Dept. of Transp., Bureau of Traffic Safety v. Quinlan, 47 Pa. Commw. 214, 408 A.2d 173 (1979).

[Foot Note 12] W.Va.‚”Abshire v. Cline, 193 W. Va. 180, 455 S.E.2d 549 (1995).

Substantial right

N.Y.‚”Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
Real value

N.Y.‚”Schutt v. MacDuff, 205 Misc. 43, 127 N.Y.S.2d 116 (Sup 1954).

[Foot Note 13] N.Y.‚”People v. Emmanuel, 82 Misc. 2d 298, 368 N.Y.S.2d 773 (City Crim. Ct. 1975).

Substantial property interest that may not be deprived without due process of law

N.Y.‚”Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
Basis of change in view from privilege to vested property right

N.Y.‚”People v. McAnarney, 28 Misc. 2d 778, 210 N.Y.S.2d 340 (County Ct. 1961).
END OF SECTION

60 C.J.S. Motor Vehicles ⤠260

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
2. Power to License

Topic Summary‚  Correlation Table

⤠260. State

Within constitutional limits, a state legislature may require drivers of motor vehicles on the public highways to be licensed and may impose reasonable conditions under which the license is to be issued.
The granting or withholding of licenses to operators of motor vehicles is a method of exercise of the state’s regulatory power over public highways.[Foot Note 1] The state legislature, under this power, has control of the licensing of those who, as chauffeurs or operators, drive such vehicles.[Foot Note 2] In the absence of constitutional restrictions, it may require that, before a person is entitled to operate or drive a motor vehicle upon the public highways, he or she must obtain a license as a chauffeur or operator and pay a prescribed license fee.[Foot Note 3]

In the exercise of this power, the legislature may classify the persons to whom the prescribed regulations will apply, provided such classification is not unreasonable and arbitrary.[Foot Note 4] Thus, the legislature may reasonably distinguish between individuals on the basis of maturity and judgment, physical capacity or ability, and similar matters which would affect the competency of a person to safely operate a motor vehicle upon the highway.[Foot Note 5] The state may prescribe the conditions under which the privilege of operating such vehicles may be granted[Foot Note 6] and exercised.[Foot Note 7] The legislature may reserve this power exclusively to the state[Foot Note 8] in order to establish, throughout the state, a uniform system regarding the licensing of chauffeurs and operators.[Foot Note 9] The legislature may also vest exclusive authority to issue licenses in a state board or commission.[Foot Note 10] Additionally, a legislature may be authorized to enact a statutory provision granting state courts the right to issue judicial driving permits.[Foot Note 11]
[Foot Note 1] N.C.‚”Smith v. Walsh, 34 N.C. App. 287, 238 S.E.2d 157 (1977).

Purpose

Ohio‚”City of Kettering v. Baker, 42 Ohio St. 2d 351, 71 Ohio Op. 2d 322, 328 N.E.2d 805 (1975).

[Foot Note 2] Mich.‚”Nicholas v. Secretary of State, 74 Mich. App. 64, 253 N.W.2d 662 (1977).

[Foot Note 3] U.S.‚”Wood v. Wm. B. Reilly & Co., 40 F. Supp. 507 (N.D. Ga. 1941).

Persons subject to license regulations, generally, see ‚§‚§ 262to 264.

License fees, generally, see ‚§‚§ 281to 283.

[Foot Note 4] Cal.‚”Ex parte Stork, 167 Cal. 294, 139 P. 684 (1914).

Taxicab license

Wash.‚”Tarver v. City Commission In and For City of Bremerton, 72 Wash. 2d 726, 435 P.2d 531 (1967).

[Foot Note 5] Wash.‚”State v. Scheffel, 82 Wash. 2d 872, 514 P.2d 1052 (1973).

Qualifications or eligibility for license, generally, see ‚§‚§ 268to 271.

[Foot Note 6] S.D.‚”Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351 (1969).

Reasonable regulation

U.S.‚”Quetawki v. Prentice, 303 F. Supp. 737 (D.N.M. 1968).

[Foot Note 7] N.Y.‚”People v. Frank, 61 Misc. 2d 450, 305 N.Y.S.2d 940 (Sup 1969).

[Foot Note 8] Tex.‚”Ball v. City of McKinney, 286 S.W. 341 (Tex. Civ. App. Dallas 1926), writ refused, (Nov. 10, 1926).

[Foot Note 9] N.Y.‚”Boord v. Wallander, 195 Misc. 557, 89 N.Y.S.2d 796 (Sup 1949), judgment modified on other grounds, 277 A.D. 253, 98 N.Y.S.2d 1 (1st Dep’t 1950), judgment aff’d on other grounds, 302 N.Y. 890, 100 N.E.2d 177 (1951).

[Foot Note 10] Neb.‚”Johnston v. Department of Motor Vehicles, 190 Neb. 606, 212 N.W.2d 342 (1973).

Duty as to medically suspect drivers

La.‚”Fowler v. Roberts, 526 So. 2d 266 (La. Ct. App. 2d Cir. 1988), writ denied, 531 So. 2d 278 (La. 1988) and writ granted, 531 So. 2d 257 (La. 1988) and judgment aff’d, 556 So. 2d 1 (La. 1989).
Control over other governmental agencies

Cal.‚”Yeoman v. Department of Motor Vehicles, 273 Cal. App. 2d 71, 78 Cal. Rptr. 251 (4th Dist. 1969).

[Foot Note 11] Ill.‚”People v. Inghram, 118 Ill. 2d 140, 113 Ill. Dec. 65, 514 N.E.2d 977 (1987).
END OF SECTION
60 C.J.S. Motor Vehicles V Refs.

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs

Topic Summary‚  Correlation Table

Research References
Drinking/Driving Litigation Criminal and Civil (2d ed.) (DRNKDRIVING)

A.L.R. Library

West’s A.L.R. Digest, AutomobilesKey Symbol129 to 145
A.L.R. Index: Automobiles and Highway Traffic; Certificates of Title; Driver’s Licenses; Driving While Under the Influence of Drugs; Guest Statute; Passengers; Pedestrians; Reckless Driving; Speed and Speeding; Traffic Offenses and Violations
Denial Of Accused’s Request For Initial Contact With Attorney‚”Drunk Driving Cases, 109 A.L.R. 5th 611
Admissibility, In Motor Vehicle License Suspension Proceedings, Of Evidence Obtained By Unlawful Search And Seizure, 23 A.L.R. 5th 108
Validity And Application Of Statute Or Regulation Authorizing Revocation Or Suspension Of Driver’s License For Reason Unrelated To Use Of, Or Ability To Operate, Motor Vehicle, 18 A.L.R. 5th 542
Automobiles: Necessity Or Emergency As Defense In Prosecution For Driving Without Operator’s License Or While License Is Suspended, 7 A.L.R. 5th 73
Validity, Construction, Application, And Effect Of Statute Requiring Conditions, In Addition To Expiration Of Time, For Reinstatement Of Suspended Or Revoked Driver’s License, 2 A.L.R. 5th 725
Automobiles: Validity And Construction Of Legislation Authorizing Revocation Or Suspension Of Operator’s License For ‚“Habitual‚, ‚“Persistent‚, Or ‚“Frequent‚ Violations Of Traffic Regulations, 48 A.L.R. 4th 367
Construction And Effect Of Statutes Which Make Parent, Custodian, Or Other Person Signing Minor’s Application For Vehicle Operator’s License Liable For Licensee’s Negligence Or Willful Misconduct, 45 A.L.R. 4th 87

Treatises and Practice Aids

Nichols Drinking/Driving Litigation: Criminal and Civil (2d ed.) ‚§‚§ 7:1 to 7:25, 8:1 to 8:5, 9:14, 9:27, 11:1, 11:16 to 11:19, 11:30, 11:37

END OF SECTION
60 C.J.S. Motor Vehicles ⤠263

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary‚  Correlation Table

⤠263. Chauffeur or operator
AutomobilesKey Symbol129, 130, 132 to 137
A distinction is sometimes recognized between an operator and a chauffeur, as “chauffeur” often refers to one who is paid for driving an automobile.
In some jurisdictions, a distinction is made between a chauffeur and an operator. An operator is any person, other than a chauffeur, who operates or drives a motor vehicle.[Foot Note 1] A person need not be a chauffeur in order to secure a chauffeur’s license.[Foot Note 2] The fact that a driver holds such a license does not necessarily make such driver a chauffeur, unless he or she receives pay for the services.[Foot Note 3] Therefore, one who holds a chauffeur’s license, but is not a chauffeur, and who drives upon the highway may be just an operator.[Foot Note 4]

The term chauffeur has a general meaning, as well as a restrictive meaning.[Foot Note 5] In the general sense, a chauffeur is one who operates and propels,[Foot Note 6] or drives and operates,[Foot Note 7] or manages the running of,[Foot Note 8] an automobile. In a more restricted sense, a chauffeur is a person who drives an automobile for hire.[Foot Note 9] Chauffeur may also have different meanings, dependent on the terms of the statutory provision in which it appears.[Foot Note 10] As used in regulations requiring a person who desires to operate a motor vehicle as a chauffeur, or as a paid operator, first to obtain a chauffeur’s or driver’s license, it means a paid operator or employee, that is, a person who is employed and paid by the owner of a motor vehicle to drive and attend to the car.[Foot Note 11] In such case, the term chauffeur does not include operators who are not employed and paid for operating the motor vehicle.[Foot Note 12] Moreover, it does not include an employee who receives his or her compensation for services rendered, other than the operation of motor vehicles, although in performing such services he or she may incidentally operate a motor vehicle.[Foot Note 13] An employee of a public utility, who incidentally uses a motor vehicle in his or her business of repair, is not a chauffeur, and is not required to obtain a chauffeur’s license.[Foot Note 14] There is, however, authority to the contrary.[Foot Note 15]

Owner as driver.

An owner of a motor vehicle who has obtained an operator’s license may not, unless otherwise permitted, drive his or her vehicle as a public service vehicle for hire without a chauffeur’s license.[Foot Note 16] An owner who acts as an independent contractor in the operation of his or her vehicle is not, however, required to take out a chauffeur’s license.[Foot Note 17] This includes a person who, in delivering goods for one person, drives a motor vehicle which he or she has borrowed from a third person.[Foot Note 18]
[Foot Note 1] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 2] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 3] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

Whether driver is chauffeur dependent on terms of applicable statutory provision, see ⤠263.

[Foot Note 4] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 5] La.‚”Day v. Bush, 18 La. App. 682, 139 So. 42 (2d Cir. 1932).

[Foot Note 6] Mo.‚”State v. Swagerty, 203 Mo. 517, 102 S.W. 483 (1907).

[Foot Note 7] Ill.‚”Christy v. Elliott, 216 Ill. 31, 74 N.E. 1035 (1905).

[Foot Note 8] Neb.‚”Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

[Foot Note 9] Neb.‚”Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

[Foot Note 10] Ala.‚”Turner v. State, 226 Ala. 269, 146 So. 601 (1933).

Uniformed patrolmen not chauffeurs

Mo.‚”State ex rel. Beach v. Beach, 325 Mo. 175, 28 S.W.2d 105 (1930).
American soldier not chauffeur

Tex.‚”American Automobile Ins. Co. v. Struwe, 218 S.W. 534 (Tex. Civ. App. San Antonio 1920), writ refused, (Apr. 6, 1921).

[Foot Note 11] U.S.‚”State of Md. for Use of Weaver v. O’Brien, 140 F. Supp. 306 (D. Md. 1956).

Test

U.S.‚”Maryland Cas. Co. v. Cronholm, 32 F. Supp. 375 (S.D. Tex. 1940), judgment aff’d on other grounds, 116 F.2d 494 (C.C.A. 5th Cir. 1940).

[Foot Note 12] Ky.‚”Winslow v. Everson, 221 Ky. 430, 298 S.W. 1084 (1927).

[Foot Note 13] W.Va.‚”State v. Wimmer, 117 W. Va. 498, 186 S.E. 133, 105 A.L.R. 67 (1936).

Services of son

Cal.‚”Hunton v. California Portland Cement Co., 50 Cal. App. 2d 684, 123 P.2d 947 (4th Dist. 1942).

[Foot Note 14] N.Y.‚”People v. Dennis, 166 N.Y.S. 318 (County Ct. 1915).

[Foot Note 15] N.Y.‚”People v. Fulton, 96 Misc. 663, 162 N.Y.S. 125 (County Ct. 1916).

[Foot Note 16] Mo.‚”Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89 (1920).

Chauffeur defined

Tex.‚”Peniche v. Aeromexico, 580 S.W.2d 152 (Tex. Civ. App. Houston 1st Dist. 1979).

[Foot Note 17] N.Y.‚”People v. Ritter, 120 Misc. 852, 200 N.Y.S. 816 (County Ct. 1922).

[Foot Note 18] Ind.‚”A. E. Norris Coal Co. v. Jackson, 80 Ind. App. 423, 141 N.E. 227 (Div. 1 1923).

CJS MOTORVEH ⤠263

END OF SECTION

 

NOTES ON POLICE POWER

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
VIII. Police Power
A. In General

Topic Summary‚  References

‚§‚ ‚  610. Nature of power

Constitutional Law‚ ‚  81

The police power is a governmental function, an inherent attribute of sovereignty, which exists without any reservation in the constitution as an essential element in all orderly governments.

The police power is a governmental function,[FN1] an inherent attribute of sovereignty,[FN2] and the greatest and most powerful attribute of government.[FN3] Although the basis of the police power lies in the constitution which regards the public welfare, safety, and health of the citizens of the state,[FN4] and although it may be given to the people of the state by the constitution,[FN5] the power exists without any reservation in the constitution,[FN6] being founded on the duty of the state to protect the health, safety, and welfare of its citizens.[FN7]

The police power, in its nature, is very broad and comprehensive,[FN8] and the laws enacted for the purpose of regulation thereunder may be impolitic, harsh, and oppressive.[FN9] It corresponds to the right of self-preservation in the individual,[FN10] and is an essential element in all orderly governments,[FN11] because it is necessary to the proper maintenance of the government and the general welfare of the community.[FN12]

The power comprehends reasonable preventative measures no less than the punishment of perpetrated offenses,[FN13] and it may act to prevent apprehended dangers as well as to control those already existing.[FN14] The police power depends on the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property, and it has been said to be the very foundation on which our social system rests.[FN15] It has for its object the improvement of economic[FN16] and social conditions affecting the community at large and collectively with a view of bringing about “the greatest good of the greatest number.”[FN17]

The constitution presupposes the existence of the police power and is to be construed with reference to that fact,[FN18] and police regulations presuppose conditions which, unless controlled, will operate to a public disadvantage.[FN19]

[FN1] U.S.‚”Aldens, Inc. v. LaFollette, 552 F.2d 745 (7th Cir. 1977).

Ala.‚”City of Decatur v. Robinson, 251 Ala. 99, 36 So. 2d 673 (1948).

[FN2] U.S.‚”City of El Paso v. Simmons, 379 U.S. 497, 85 S. Ct. 577, 13 L. Ed. 2d 446 (1965).

Cal.‚”Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc., 91 Cal. App. 4th 678, 110 Cal. Rptr. 2d 708 (1st Dist. 2001), as modified on denial of reh’g, (Sept. 13, 2001).

Colo.‚”CF & I Steel, L.P. v. United Steel Workers of America (USWA), 74 P.3d 513 (Colo. Ct. App. 2003).

Okla.‚”Fine Airport Parking, Inc. v. City of Tulsa, 2003 OK 27, 71 P.3d 5 (Okla. 2003).

Exercise not dependent on emergency

Police power is permanent right of sovereignty, and its exercise is not dependent on emergency.

N.J.‚”In re North Jersey Title Ins. Co., 120 N.J. Eq. 148, 184 A. 420 (Ch. 1936), aff’d, 120 N.J. Eq. 608, 187 A. 146 (Ct. Err. & App. 1936).

[FN3] Pa.‚”Com. v. Widovich, 295 Pa. 311, 145 A. 295 (1929).

[FN4] U.S.‚”Ziffrin, Inc. v. Martin, 24 F. Supp. 924 (E.D. Ky. 1938), aff’d, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128 (1939) (abrogated on other grounds by, Granholm v. Heald, 125 S. Ct. 1885, 161 L. Ed. 2d 796 (U.S. 2005)).

[FN5] Vt.‚”Sowma v. Parker, 112 Vt. 241, 22 A.2d 513 (1941).

[FN6] Ohio‚”Vincent v. Elyria Bd. of Ed., 7 Ohio App. 2d 58, 36 Ohio Op. 2d 151, 218 N.E.2d 764 (9th Dist. Lorain County 1966).

Tex.‚”Martin v. Wholesome Dairy, Inc., 437 S.W.2d 586 (Tex. Civ. App. Austin 1969), writ refused n.r.e., (June 25, 1969).

Wash.‚”Reesman v. State, 74 Wash. 2d 646, 445 P.2d 1004 (1968).

Not referable to any single provision

Md.‚”Smith v. Higinbothom, 187 Md. 115, 48 A.2d 754 (1946).

[FN7] Md.‚”Linkus v. Maryland State Bd. of Heating Ventilation, Air-Conditioning and Refrigeration Contractors, 114 Md. App. 262, 689 A.2d 1254 (1997).

N.M.‚”In re McCain, 84 N.M. 657, 506 P.2d 1204 (1973).

Tex.‚”Jefco, Inc. v. Lewis, 520 S.W.2d 915 (Tex. Civ. App. Austin 1975), writ refused n.r.e., (July 23, 1975).

Duty to act

(1) Legislature has a duty to enact laws providing for general welfare and safety of people within state.

Ind.‚”State ex rel. Mavity v. Tyndall, 225 Ind. 360, 74 N.E.2d 914 (1947).

(2) There is no constitutional provision which imposes a duty on a state to provide services to its citizens.

U.S.‚”New York State Ass’n for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (E.D. N.Y. 1973).

Public necessity

Police power is founded in public necessity, which justifies its exercise.

Conn.‚”State v. Heller, 123 Conn. 492, 196 A. 337 (1937).

[FN8] N.Y.‚”Dobrzenski v. Village of Hamburg, 277 A.D.2d 1005, 715 N.Y.S.2d 819 (4th Dep’t 2000).

Okla.‚”State v. Nevins, 1980 OK CR 30, 611 P.2d 251 (Okla. Crim. App. 1980).

W. Va.‚”State ex rel. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981).

Almost infinite variety of subjects embraced

U.S.‚”Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Commission, 393 U.S. 186, 89 S. Ct. 354, 21 L. Ed. 2d 334 (1968).

[FN9] Cal.‚”D’Amico v. Brock, 122 Cal. App. 2d 63, 264 P.2d 120 (3d Dist. 1953).

Iowa‚”Jacobs v. City of Chariton, 245 Iowa 1378, 65 N.W.2d 561 (1954).

W.Va.‚”State ex rel. Morris v. West Virginia Racing Commission, 133 W. Va. 179, 55 S.E.2d 263 (1949).

Strict liability

In exercise of power, state may impose liability without fault.

Ala.‚”Walker v. State, 356 So. 2d 672 (Ala. 1977).

[FN10] U.S.‚”Panhandle Eastern Pipe Line Co. v. State Highway Commission of Kansas, 294 U.S. 613, 55 S. Ct. 563, 79 L. Ed. 1090 (1935).

Ala.‚”Jones v. State, 56 Ala. App. 280, 321 So. 2d 247 (Crim. App. 1975).

N.Y.‚”DeLury v. City of New York, 51 A.D.2d 288, 381 N.Y.S.2d 236 (1st Dep’t 1976).

[FN11] U.S.‚”Comtronics, Inc. v. Puerto Rico Telephone Co., 409 F. Supp. 800 (D.P.R. 1975), judgment aff’d, 553 F.2d 701 (1st Cir. 1977).

Ky.‚”Roe v. Com., 405 S.W.2d 25 (Ky. 1966).

Wash.‚”Spokane County v. Valu-Mart, Inc., 69 Wash. 2d 712, 419 P.2d 993 (1966).

Law of necessity

Police power is law of necessity.

N.J.‚”Jamouneau v. Harner, 16 N.J. 500, 109 A.2d 640 (1954).

[FN12] Ariz.‚”Transamerica Title Ins. Co. v. City of Tucson, 23 Ariz. App. 385, 533 P.2d 693 (Div. 2 1975).

Tenn.‚”H & L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444, 12 A.L.R.4th 835 (Tenn. 1979).

Tex.‚”Texas State Bd. of Pharmacy v. Gibson’s Discount Center, Inc., 541 S.W.2d 884 (Tex. Civ. App. Austin 1976), writ refused n.r.e., (Mar. 9, 1977).

[FN13] U.S.‚”Jung v. City of Winona, 71 F. Supp. 558 (D. Minn. 1947).

N.J.‚”State v. Gaynor, 119 N.J.L. 582, 197 A. 360 (N.J. Ct. Err. & App. 1938).

Assumptions unprovable or unproved

(1) Unprovable assumption may be acted on by states in areas of public control.

U.S.‚”Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).

(2) Legislatures properly may rely on scientifically unproven assumptions both in regulation of commercial and business transactions and for protection of broad social interests in order and morality.

D.C.‚”U. S. v. Moses, 339 A.2d 46 (D.C. 1975).

Blocking evasive techniques

In area of regulation, statute may push beyond debatable limits in order to block evasive techniques.

Cal.‚”Sacramento Newspaper Guild v. Sacramento County Bd. of Sup’rs, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (3d Dist. 1968).

[FN14] U.S.‚”Gitlow v. People of State of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925).

Colo.‚”People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977).

N.Y.‚”McCallin v. Walsh, 64 A.D.2d 46, 407 N.Y.S.2d 852 (1st Dep’t 1978), order aff’d, 46 N.Y.2d 808, 413 N.Y.S.2d 922, 386 N.E.2d 833 (1978).

Delayed impact

Authority of state to control activities of its citizens is not limited to activities which have a present and immediate impact on public health or welfare.

Alaska‚”Ravin v. State, 537 P.2d 494 (Alaska 1975).

Possession of devices or products

Mere possession of dangerous or deleterious devices or products may be forbidden by state under its police powers.

D.C.‚”Smith v. District of Columbia, 436 A.2d 53 (D.C. 1981).

[FN15] Ga.‚”De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940).

N.C.‚”State v. McGee, 237 N.C. 633, 75 S.E.2d 783 (1953).

Va.‚”Mumpower v. Housing Authority of City of Bristol, 176 Va. 426, 11 S.E.2d 732 (1940).

Giving up rights for public benefit

Power to pass laws regulating persons and property stems from theory that when persons choose to live in groups they must give up some individual freedom for good of group.

La.‚”City of Shreveport v. Curry, 357 So. 2d 1078 (La. 1978).

[FN16] Wis.‚”Gross v. Woodman’s Food Market, Inc., 259 Wis. 2d 181, 2002 WI App 295, 655 N.W.2d 718 (Ct. App. 2002), review denied, 2003 WI 32, 260 Wis. 2d 752, 661 N.W.2d 100 (2003).

[FN17] Md.‚”Maryland Coal & Realty Co. v. Bureau of Mines of State, 193 Md. 627, 69 A.2d 471 (1949).

Mich.‚”People v. Sell, 310 Mich. 305, 17 N.W.2d 193 (1945).

N.C.‚”Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941).

Interest of public paramount

Fla.‚”Egan v. City of Miami, 130 Fla. 465, 178 So. 132 (1938).

[FN18] Fla.‚”McInerney v. Ervin, 46 So. 2d 458 (Fla. 1950).

La.‚”City of Baton Rouge v. Ross, 654 So. 2d 1311 (La. 1995).

N.D.‚”State ex rel. City of Minot v. Gronna, 79 N.D. 673, 59 N.W.2d 514 (1953).

[FN19] Ky.‚”Commonwealth for Use and Ben. of City of Wilmore v. McCray, 250 Ky. 182, 61 S.W.2d 1043 (1933).

Utah‚”State v. Packer Corporation, 77 Utah 500, 297 P. 1013 (1931).

END OF SECTION

CJS CONSTLAW ‚§‚  610

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XV. Privileges and Immunities of Citizens and Related Matters
C. Denial of Privileges and Immunities
2. Police Power and Regulation

Topic Summary‚  References

‚§‚ ‚  1067. State’s exercise of police power

Constitutional Law‚ ‚  206(1), 207(1), 207(6)

While a state, in the exercise of its police power, may pass laws for the health, morals, safety, and general welfare of persons within its jurisdiction, such exercise of power must not discriminate arbitrarily between citizens.

Neither the guaranty contained in the original United States Constitution of the privileges and immunities of citizens of the several states, nor that contained in the Fourteenth Amendment, takes away or impairs the police power of the several states to pass reasonable laws for the promotion of the health, morals, safety, and general welfare of persons subject to their jurisdiction.[FN1] The privileges and immunities clause applies only to protect citizens of one state from discriminatory treatment in another state, and does not limit the state’s police power over its own citizens.[FN2]

It has been held that the privileges and immunities clauses have no application to statutes enacted in the exercise of that power.[FN3] On the other hand, it has been held that the police power is subject to the constitutional guaranty of equality of privilege,[FN4] and an exercise of the police power must not arbitrarily discriminate between citizens.[FN5] Nevertheless, the protections afforded by constitutional clauses protecting privileges and immunities of citizens are not absolute and will yield to reasonable exercise of state police powers.[FN6]

While in the matter of police regulation, the powers of the state are very broad, it cannot single out a corporation, any more than a natural person, and subject it to burdens which are not cast on others similarly situated, without contravening the limitations of the Fourteenth Amendment of the Federal Constitution.[FN7]

[FN1] U.S.‚”Sullivan v. Shaw, 6 F. Supp. 112 (S.D. Cal. 1934).

Fla.‚”Stephens v. Stickel, 146 Fla. 104, 200 So. 396 (1941).

Mo.‚”State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988 (1933).

N.Y.‚”People ex rel. Bryant v. Zimmerman, 213 A.D. 414, 210 N.Y.S. 269 (4th Dep’t 1925), aff’d, 241 N.Y. 405, 150 N.E. 497, 43 A.L.R. 909 (1926), aff’d, 278 U.S. 63, 49 S. Ct. 61, 73 L. Ed. 184, 62 A.L.R. 785 (1928).

Or.‚”Daniels v. City of Portland, 124 Or. 677, 265 P. 790, 59 A.L.R. 512 (1928).

Tenn.‚”Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132 (1930).

W.Va.‚”Tweel v. West Virginia Racing Commission, 138 W. Va. 531, 76 S.E.2d 874 (1953).

[FN2] Me.‚”State v. Hayes, 603 A.2d 869 (Me. 1992).

[FN3] Wash.‚”Frach v. Schoettler, 46 Wash. 2d 281, 280 P.2d 1038 (1955).

[FN4] N.C.‚”State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97 (1952).

[FN5] Ind.‚”City of Richmond v. Dudley, 129 Ind. 112, 28 N.E. 312 (1891).

S.C.‚”Schloss Poster Advertising Co. v. City of Rock Hill, 190 S.C. 92, 2 S.E.2d 392 (1939).

[FN6] Mont.‚”State v. Barnes, 232 Mont. 405, 758 P.2d 264 (1988).

[FN7] U.S.‚”Southern Bell Tel. & Tel. Co. v. Town of Calhoun, 287 F. 381 (W.D. S.C. 1923).

END OF SECTION

CJS CONSTLAW ‚§‚  1067

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XVI. Equal Protection of the Laws
B. Nature and Scope of Prohibitions

Topic Summary‚  References

‚§‚ ‚  1115. Exercise of police power

Constitutional Law‚ ‚  212

The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power, to pass laws for the protection of the public health, safety, welfare, or morals.

The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power,[FN1] to pass laws for the protection of the public health, safety, welfare, or morals,[FN2] and indeed, the state has wide discretion to do so under the equal protection clause.[FN3] Furthermore, it does not interfere with the proper exercise of that power.[FN4]

However, according to the weight of authority, an exercise of the police power is subject to the constitutional limitation that no state shall deny the equal protection of the laws to any person within its jurisdiction;[FN5] and the Fourteenth Amendment invalidates enactments that are arbitrary, unreasonable, and unrelated to the public purpose sought to be attained.[FN6] In other words, equal protection requires that the exercise of police power be wholly free of unreason and arbitrariness.[FN7] It is necessary that a police regulation shall apply equally or uniformly to all persons similarly situated or within a class.[FN8] Thus, the lawmaking authority may, under its police power, enact regulations that are not all-embracing, and it may legislate with reference to degrees of evil and to situations in which the evil is demonstrably more harmful, without denying equal protection of the law;[FN9] but an exercise of the police power must not be discriminatory in operation.[FN10]

The equal protection clause of the Fourteenth Amendment to the Federal Constitution does not take from a state or municipal corporation the power to classify in the adoption of police laws or regulations,[FN11] but admits of the exercise of a wide or broad scope of discretion in that regard.[FN12]

[FN1] Del.‚”In re Auditorium, Inc., 46 Del. 430, 84 A.2d 598 (Super. Ct. 1951).

[FN2] Fla.‚”Florida League of Cities, Inc. v. Department of Environmental Regulation, 603 So. 2d 1363 (Fla. Dist. Ct. App. 1st Dist. 1992).

Ohio‚”St. Ann’s Hosp. v. Arnold, 109 Ohio App. 3d 562, 672 N.E.2d 743 (10th Dist. Franklin County 1996).

Pa.‚”Pennsylvania Turnpike Com’n v. Com., 855 A.2d 923 (Pa. Commw. Ct. 2004), as amended, (Aug. 4, 2004).

[FN3] U.S.‚”Lee v. State, 869 F. Supp. 1491 (D. Or. 1994).

Colo.‚”Buckley Powder Co. v. State, 70 P.3d 547 (Colo. Ct. App. 2002), cert. denied, 2003 WL 21222805 (Colo. 2003) and cert. denied, (May 27, 2003).

[FN4] U.S.‚”Lacoste v. Department of Conservation of State of Louisiana, 263 U.S. 545, 44 S. Ct. 186, 68 L. Ed. 437 (1924); Chambers v. Bachtel, 55 F.2d 851 (C.C.A. 5th Cir. 1932).

Kan.‚”Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974).

[FN5] U.S.‚”Oyama v. California, 332 U.S. 633, 68 S. Ct. 269, 92 L. Ed. 249 (1948); Szeto v. Louisiana State Bd. of Dentistry, 508 F. Supp. 268 (E.D. La. 1981).

Fla.‚”Junco v. State Bd. of Accountancy, 390 So. 2d 329 (Fla. 1980).

[FN6] Ill.‚”Rawlings v. Illinois Dept. of Law Enforcement, 73 Ill. App. 3d 267, 29 Ill. Dec. 333, 391 N.E.2d 758 (3d Dist. 1979).

[FN7] N.J.‚”515 Associates v. City of Newark, 132 N.J. 180, 623 A.2d 1366 (1993).

[FN8] U.S.‚”Alabama State Federation of Labor, Local Union No. 103, United Broth. of Carpenters and Joiners of America v. McAdory, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945); Berry v. Arapahoe and Shoshone Tribes, 420 F. Supp. 934 (D. Wyo. 1976).

Cal.‚”Elysium Institute, Inc. v. County of Los Angeles, 232 Cal. App. 3d 408, 283 Cal. Rptr. 688 (2d Dist. 1991).

Neb.‚”Distinctive Printing and Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).

[FN9] Fla.‚”Pacheco v. Pacheco, 246 So. 2d 778 (Fla. 1971).

[FN10] U.S.‚”Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, 3 A.L.R.2d 441 (1948).

Ariz.‚”State v. Norcross, 26 Ariz. App. 115, 546 P.2d 840 (Div. 1 1976).

[FN11] U.S.‚”Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 66 S. Ct. 850, 90 L. Ed. 1096 (1946).

Tenn.‚”Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

As to legislative classifications, generally, see ‚§‚  1110.

[FN12] U.S.‚”City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Authority, 825 F.2d 367 (11th Cir. 1987).

Ill.‚”People v. Toliver, 251 Ill. App. 3d 1092, 191 Ill. Dec. 290, 623 N.E.2d 880 (2d Dist. 1993).

Tenn.‚”Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

END OF SECTION

CJS CONSTLAW ‚§‚  1115

Tagged , , ,

An Analysis of the Draconian Application of Illinois' Eavesdropping Law 720 ILCS 5/14

This article has been used as a reference source at Wikipedia http://en.wikipedia.org/wiki/Telephone_recording_laws

Illinois, the Land of Lincoln, aptly put since Lincoln was a usurper and despot, is one of the most notorious States for corruption and rights abuse. The festering pustule that is Chicago infects the rest of the State’s bloodstream by virtue of its government sponsored criminal enterprise. Chicago’s ills affect the rest of Illinois for the laws written to remedy that bastion of corruption. This article discusses the Illinois Wiretapping Law found at 720 ILCS 5/14.

As an example, I used a case I am somewhat familiar with involving a man who requested a court reporter and was denied. He then informed a clerk of the court that he would bring his own recorder. The judge later questioned him about the use of a recorder, which he did not deny. That information was later used against him in charging 5 violations of the Illinois Wiretapping Law. The case I refer to can be found here.

First, some glaring violations of due process are evident. The article states:

Just after he walked through the courthouse door the next day, Allison says Crawford County Circuit Court Judge Kimbara Harrell asked him whether he had a tape recorder in his pocket. He said yes. Harrell then asked him if it was turned on. Allison said it was. Harrell then informed the defendant that he was in violation of the Illinois wiretapping law, which makes it a Class 1 felony to record someone without his consent. “You violated my right to privacy,” the judge said.

This appears as though the judge, Kimbra Harrell, was conducting a criminal investigation by questioning Allison about the possible commission of a crime. If there was evidence of a crime, why was Allison not arrested, supported by a sworn complaint by the judge? The questioning of Allison by Judge Harrell violated his right to silence since the judge was gathering information used to charge the commission of a crime. The judge had no reasonable suspicion other than that of the clerk who probably mentioned it to the judge. There was no criminal act taking place at the time, since yesterday had passed where the alleged violation occurred, and I see no evidence of the State possessing the actual recording. Allison is being charged based on his answers to Kimbrell’s questions which were unlawful. This does not speak to any provision of the wiretapping law, but speaks to entrapment and violation of due process.

What is interesting is Harrell is claiming a violation of her privacy rights as a complainant. I’m sure there are microphones and cameras in her courtroom, as with most courtrooms, so what part of her privacy was violated by Mr. Allison? I spoke with Mr. Allison, and the details of his experience are quite amazing. It seems as though the charges facing him are retaliatory and contrived, if not meeting the definition of entrapment.

Quoting from Illinois Practice Series, Illinois Civil Trial Procedure by Michael J. Kaufman, Professor Of Law, Loyola University Chicago School Of Law. Part VI. Evidence § 22:11. Recorded conversations:

The Illinois Eavesdropping Statute expressly prohibits the recording of a conversation absent consent of “all parties” to the conversation.(1) Material obtained in violation of this statute is not admissible at trial.(2)Notwithstanding the plain language of this statute, the Illinois courts, somewhat inexplicably, have interpreted the statute to prohibit eavesdropping only where no party to the conversation consents.(3) So long as one party to a conversation consents to recording that conversation, the recording is not violative of the statute. Hence, a party who secretly records its conversations with a potential adversary without that adversary’s consent does not violate the statute. The secret recording presumably would be admissible into evidence.
(1) 720 ILCS 5/14-2.
(2) 720 ILCS 5/14-2.
See also Graham, Cleary and Graham’s Handbook of Illinois Evidence at 264 (8th ed. 2006).
(3) See, e.g., People v. Richardson, 60 Ill. 2d 189, 328 N.E.2d 260 (1975). No eavesdropping was found when an informant consented to having his telephone conversation with the defendant recorded by the State’s Attorney’s office.

Is it not interesting how the courts have, “somewhat inexplicably” held that recordings where only one party was taping or had consented did not violate the statute? Knowing this, and the prosecutors do, they still insist on pursuing charges against selected targets vindictively; more likely than not out of retaliation or intimidation for their audacity in confronting government.

Another interesting case is:

183 Ill.App3d 562 539 N.E.2d 234 131 Ill.Dec 881
David A. BENDER, Plaintiff-Appellant,
v.
The BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF DOLTON, Illinois, Commissioner/Chairman Joseph Chantigney, Commissioner/Secretary Sam Ingala, Commissioner Robert F. Byrnes, and Commissioner William Hespel, and George Pfotenhauer, Chief of Police of the Village of Dolton, Illinois, Defendants-Appellees.
In this case, a police officer brought a complaint for judicial review of the final administrative decision of the board of fire and police commissioners to discharge him from his position. The Circuit Court, Cook County, George M. Marovich, J., affirmed, and police officer appealed. The Appellate Court, Freeman, P.J., held that police officer’s use of a pocket recorder to record a conver-sation he had with the chief of police was not eaves-dropping.

On March 3, 1986, plaintiff, who was on duty, had a conversation with the Dolton Chief of Police, George Pfotenhauer, in the latter’s office at the Dolton police station. At that time, Pfotenhauer asked plaintiff some questions regarding his overtime and his ownership or operation of a security company. During their con-versation, a cassette tape recorder which plaintiff had in his vest pocket made a beeping sound. According to Pfotenhauer, he then asked plaintiff whether he was recording their conversation. Plaintiff admitted he was and Pfotenhauer demanded that plaintiff surrender the tape. Plaintiff contended at the administrative hearing that he had not recorded his conversation with Pfotenhauer. However, on appeal, he does not dispute that he did so or that he refused Pfotenhauer’s order to surrender the tape.

Quoting from the decision:

On appeal, plaintiff contends that, assuming that he did record the conversation with Pfotenhauer, such conduct did not constitute eavesdropping as a matter of law. In support, he cites People v. Klingenberg (1975), 34 Ill.App.3d 705, 339 N.E.2d 456. Klingenberg held that the videotaping of an interrogation after a drunk driving arrest did not violate the eavesdropping statute despite the fact that the defendant did not consent to it. The court reasoned that, since the defendant made his statements directly to the police and intended that they hear his statements, he had no expectation of privacy therein, there was no interception of a private communication, and the recording was not intended to obtain otherwise inaccessible information. Klingenberg, 34 Ill.App.3d at 708, 339 N.E.2d 456.

Plaintiff relies on Klingenberg to argue that defendant’s decision was against the manifest weight of the evidence. However, we find that, if applicable here, Klingenberg requires a conclusion that defendant’s deci-sion was contrary to the law.

Defendant does not directly respond to plaintiff’s reliance on Klingenberg. Indirectly doing so, it argues that, assuming plaintiff did not commit the offense of eavesdropping, there is, nonetheless, a reasonable expectation of privacy in a superior’s conversation with an employee that prohibits the repetition of their communications. This is especially true, defendant argues, in law enforcement, where confidential 565 matters are routinely discussed and expected to remain undisclosed. Given that they occurred in the office of the chief of police while plaintiff was on duty, defendant concludes, there must be an expectation of privacy accorded the communications between plaintiff and Pfotenhauer.

We find defendant’s attempt to distinguish Klingen-berg unavailing. Because we conclude that Klingen-berg controls this case, we need not address whether Beardsley is retroactively applicable to it.

Defendant’s defense of plaintiff’s discharge on the ground that, even assuming he did not commit eavesdropping, he nonetheless violated Pfotenhauer’s reasonable expectation of privacy in their conversa-tion is flawed for several reasons.

The first is that, if plaintiff did not commit eaves-dropping, he did not violate any criminal law of the State of Illinois. If he did not violate any criminal law, he did not violate article 4, section 2.1 of the rules and regulations of the Dolton police department. If he did not violate that provision, there was no basis for charging a violation of article 4, section 2.2. thereof. Therefore, he should not have been discharged.

The second reason defendant’s argument is flawed is that plaintiff was charged with committing the criminal offense of eavesdropping and not merely with violating or breaching a superior’s reasonable expectation of privacy in confidential communications.

The third reason the argument is flawed is that, while conceding that plaintiff did not commit eavesdrop-ping, it asserts that he committed what is the basis of that offense, i.e., a breach of privacy. The generally accepted definition of eavesdropping is “ ‘to listen secretly to what is said in private.’ ” ( People v. Klingenberg (1975), 34 Ill.App.3d 705, 707-08, 339 N.E.2d 456.) The statute prohibiting eavesdropping is thus intended to protect the privacy of the individual. ( Klingenberg, 34 Ill.App.3d at 707, 339 N.E.2d 456.) Defendant, therefore, cannot logically concede that plaintiff did not commit eavesdropping and simultaneously assert that he violated Pfotenhauer’s privacy.

On a more fundamental level, defendant’s argument evinces a misunderstanding of the privacy interest which the prohibition against eavesdropping protects. As we read the case, Klingenberg was based, at bottom, on the fact that the same individuals to whom the defendant directed his statements and by whom he intended that they be heard recorded them. Klingenberg thus stands for the general principle that no eavesdropping occurs where an individual to whom statements are made or directed records them, even without the knowledge or consent of the person making the statements, because the declarant does not intend to keep his statements private vis-a-vis that individual.

Although we have found it unnecessary to decide whether Beardsley is retroactively applicable here, Beardsley is nonetheless noteworthy because it relies on and discusses Lopez v. United States (1963), 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, which the Klingenberg court cited in holding that no eaves-dropping occurs absent interception of a communication intended by the declarant to be private. ( People v. Klingenberg (1975), 34 Ill.App.3d 705, 708, 339 N.E.2d 456.) Lopez involved a revenue agent’s recording of a bribery attempt with a pocket recorder. In rejecting the defendant’s fourth amendment challenge to the admissibility of the recording, the U.S. Supreme Court concluded that the government did not use the recorder to listen in on conversations it could not otherwise have heard, but only to obtain the most reliable evidence of a conversation which involved a government agent and which he was therefore fully entitled to disclose. People v. Beardsley (1986), 115 Ill.2d 47, 55-56, 503 N.E.2d 346.

Like the police officers in Klingenberg and the revenue agent in Lopez, plaintiff did not use his pocket recorder to listen in on a conversation he could not otherwise have heard. As such, he did not commit eavesdropping in recording his conversation with Pfotenhauer. It therefore follows, a fortiori, that plaintiff did not violate article 4, section 2.1 or section 2.2. of the rules and regulations of the Dolton Police Department. With regard to the latter, the only legitimate basis which Pfotenhauer could have for ordering plaintiff to surrender the tape was his alleged violation of the eavesdropping statute. As he committed no such violation, Pfotenhauer had no right to the tape.

I will quote from one more case here before elaborating more on the language and applicability of the statute itself. This case is People v. Jansen, App. 5 Dist.1990, 203 Ill. App. 3d 985; 561 N.E.2d 312; 1990 Ill. App. Again, with this case, the court relied upon the reasoning in People v. Beardsley (1985), 139 Ill. App. 3d 819, 487 N.E.2d 731. A copy of that case can be downloaded here.

“The Beardsley court held that the ‘eavesdropping statute should not prohibit the recording of a conversation by a party to that conversation or one known by the parties thereto to be present.’ ( Beardsley, 115 Ill. 2d at 56, 503 N.E.2d at 351.) The court based its holding on the fact that a party to the conversation cannot be accused of listening secretly to what is said in private or of surreptitious interception of a private conversation, because that party is competent to testify concerning the contents of the conversation, and could have taken notes or transcribed the conversation, rather than recording it. ( Beardsley, 115 Ill. 2d at 58-59, 503 N.E.2d at 352.)”

Speaking to Mr. Allison’s case, specifically, given the history of the police, judges, and prosecutors in Bridgeport, I believe Mr. Allison has an affirmative defense under 720 ILCS 5/14‑3(i) which reads:

(i) Recording of a conversation made by or at the request of a person, not a law enforcement officer or agent of a law enforcement officer, who is a party to the conversation, under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording;

In anticipation of further criminal conduct on the part of the Judge Harrell, Mr. Allison was preparing to document violations of law. His recording would therefore not be a violation of State statute since he was anticipating criminal conduct by Judge Harrell. I have yet to see the charging information, but I believe it will not stand the tests outlined in the above cases.

Furthermore, given the plain language of the statute, it would appear that the State of Illinois is itself guilty of this offense given that the Supreme Court of Illinois is the authority for determining who and how recordings of judicial proceedings are to be done.

From the Illinois Supreme Court website here http://www.state.il.us/court/SupremeCourt/Rules/Art_I/ArtI.htm#46

Rule 46. Official Record of Court Proceedings

(a) Taking of the Record. The record of court proceedings may be taken by stenographic means or by an electronic recording system approved by the Supreme Court. All transcripts prepared as the official record of court proceedings shall be prepared pursuant to applicable supreme court rules.

(b) Security of the Record. The confidentiality of court proceedings and the retention and safekeeping of notes and electronic recordings shall be maintained consistent with standards established by the Supreme Court through its Administrative Office.

(c) Court Reporting Personnel. For purposes of this rule and other supreme court rules regarding the official record, “court reporting personnel” shall include:

(1) court reporters as defined by the Court Reporters Act (705 ILCS 70/1);

(2) court personnel who have fulfilled the training and certification standards promulgated by the Supreme Court and consistent with paragraph (d) of this rule; and

(3) certified shorthand reporters hired through an agency or as an independent contractor by a private party or parties to take a stenographic record in court proceedings.

(d) Electronic Recording of Court Proceedings.

(1) The Supreme Court shall provide for and prescribe the types of electronic recording equipment that may be used in the circuit courts. Those jurisdictions with electronic recording systems installed are required to properly utilize and staff such equipment in order to produce a reliable verbatim record of the proceedings.

(2) Court reporting personnel, including court reporters as defined by the Court Reporters Act (705 ILCS 70/1), must successfully complete training and certification designed to qualify them to operate electronic recording equipment, prepare transcripts from such proceedings, and certify the record on appeal. Such training and certification shall be consistent with standards established by the Supreme Court, through its Administrative Office.

(3) Electronic recordings of proceedings shall remain under the control of the court having custody of them. The chief judges shall provide for the storage and safekeeping of such recordings consistent with the standards referenced in paragraph (b) of this rule.

(4) The Administrative Office shall monitor the operation of electronic recording equipment, the security of the electronic recordings, and the training of court reporting personnel to assure that each county is in compliance with this rule.

Adopted December 13, 2005, effective immediately.

 

When compared with the language of the statute here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+14&ActID=1876&ChapterID=53&SeqStart=30900000&SeqEnd=32700000

(720 ILCS 5/14‑4) (from Ch. 38, par. 14‑4)     Sec. 14‑4. Sentence.

(a) Eavesdropping, for a first offense, is a Class 4 felony and, for a second or subsequent offense, is a Class 3 felony.

(b) The eavesdropping of an oral conversation or an electronic communication between any law enforcement officer, State’s Attorney, Assistant State’s Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order, is a Class 1 felony. (Source: P.A. 91‑357, eff. 7‑29‑99; 91‑657, eff. 1‑1‑00.)

It appears that under direction of Supreme Court Rule 46, the State is committing an offense by recording judges and State’s Attorneys in the courtroom. Remember, the language of the statute reads:

(720 ILCS 5/14‑2) (from Ch. 38, par. 14‑2)     Sec. 14‑2. Elements of the offense; affirmative defense.

(a) A person commits eavesdropping when he:

(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so

(A) with the consent of all of the parties to such conversation or electronic communication or

(B) in accordance with Article 108A or Article 108B of the “Code of Criminal Procedure of 1963″, approved August 14, 1963, as amended;

It is an affirmative defense when:

(b) It is an affirmative defense to a charge brought under this Article relating to the interception of a privileged communication that the person charged:

1. was a law enforcement officer acting pursuant to an order of interception, entered pursuant to Section 108A‑1 or 108B‑5 of the Code of Criminal Procedure of 1963; and

2. at the time the communication was intercepted, the officer was unaware that the communication was privileged; and

3. stopped the interception within a reasonable time after discovering that the communication was privileged; and

4. did not disclose the contents of the communication.

Therefore, absent any of the preceding exceptions and affirmative defenses, it is illegal to record court proceedings absent consent from all parties, including defendants, and even harsher penalties are imposed when recording judges and State’s Attorneys. Maybe it would be wise for someone to apply for injunctive relief from the courts for their not consenting to being recorded in court. The statute makes an allowance for this:

(720 ILCS 5/14‑6) (from Ch. 38, par. 14‑6)     Sec. 14‑6. Civil remedies to injured parties. (1) Any or all parties to any conversation upon which eavesdropping is practiced contrary to this Article shall be entitled to the following remedies:

(a) To an injunction by the circuit court prohibiting further eavesdropping by the eavesdropper and by or on behalf of his principal

In the mean-time, lets move on to the Legislative debates regarding the amendment to this statute which they hoped to circumvent the Appellate Court’s holding in Beardsley.

Looking now to legislative intent. What better place to look at what the legislators who wrote the law intended than the debates on the Bill. This information came from the Illinois Legislature’s Website.

STATE OF ILLINOIS 88TH GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 57th Legislative Day May 21, 1993

PRESIDING OFFICER: (SENATOR WATSON)
House Bill 1787. Senator Barkhausen. Read the bill, Madam Secretary.

ACTING SECRETARY HAWKER:
House Bill 1787.
(Secretary reads title of bill)
3rd Reading of the bill.

PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN;
Thank you, Mr. President. House Bill 1787 does two things. First, it restores the requirement that all parties consent to a — to a recording of conversations, which requirement was negated
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by the Illinois Supreme Court decision in People vs. Beardsley. Second, the bill was amended in committee to make law enforcement use of consensual eavesdropping consistent with laws that apply in forty other states and are used by the Federal Government by deleting a court order requirement in a very limited set of circumstances. The police must notify the State’s attorney of the investigation, and the recording must be necessary to protect officer safety and then only in the investigation of a felony drug offense, forcible felony or gang-related felony. The recording may not be used in any proceeding except where a party to the conversation recorded was injured or killed. Most states do not have any court order requirement on these — in these cases; so this bill is a very modest step to put Illinois in line with the practices of a number of other states – most other states. In addition, I should say the discussions are ongoing between the House sponsor and the State Police, who were the proponents of the amendment, and the bar associations and our staff, on this amended provision. A tentative agreement has been reached that will be the basis of a possible conference committee report that will move the objections that some of the bar association representatives have had to the second part of the bill. I urge your support.

PRESIDING OFFICER: (SENATOR WATSON)
Seeing no — no discussion — Senator Molaro.

SENATOR MOLARO:
Yes, thank you Mr. President, Ladies and Gentlemen of the Senate. Senator Barkhausen just touched on — said it’s going to conference committee, and I do believe that’s true, but I must just point out, they’re saying this for the safety of the officers. Well, it certainly makes sense that anytime anybody who’s working under cover or goes into a position where their life is in jeopardy or their safety is in jeopardy, well it certainly makes sense to me that the people on the outside in the cars,
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while this officer’s in the inside, should know what’s going on. That certainly makes sense. However, when I asked the question in committee — well, if all they need is to know to have the headset on and listen to these conversations so they know when it might be – a tough situation and react to it for the officer’s safety, I said that’s terrific. But why change the eavesdropping law? Why do we have to record this, and why can we then use it as evidence in — in a — in an upcoming trial if there is one? And they said, “Well, because we do.” Well, that’s why we have the objections. Safety is one thing; taking away the Fourth Amendment is another thing. And I think it’s dangerous, in the interests of safety and law and order, that every time there’s a bill like this, we want to be tough on crime, that we just blindly vote Yes, and we’re picking away and chopping away at the Fourth Amendment. And I — and I think it’s dangerous. Thank you.

PRESIDING OFFICER: (SENATOR WATSON)
Seeing no further discussion, Senator Barkhausen, to close. I beg your pardon. Senator Hall.

SENATOR HALL:
Will the sponsor yield for a question?

PRESIDING OFFICER: (SENATOR WATSON)
The sponsor will yield, Senator Hall.

SENATOR HALL:
Why is the Cook County Public Defender opposed to this? PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Not having been a party to conversations with the Public Defender, I — I’m not sure, Senator Hall. They have been historically, philosophically opposed to most anything that had to do with eavesdropping.

PRESIDING OFFICER: (SENATOR WATSON)
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Senator Hall.

SENATOR HALL:
According to my notes it says the ISBA, the Cook County Public Defenders, say they believe the tapes should not be admissible at a trial. Are these tapes going to be admissible at a trial?

PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Yeah. The — the — I’m told that the Public Defender has been involved in — in some of these discussions, and has been participating on efforts to arrive at a compromise that will be embodied in the conference committee report that we anticipate.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Fawell.

SENATOR FAWELL:
Thank you — thank you very much. Now, I understand what the sponsor is trying to do. Obviously, he’s trying to be very tough on — on — on drugs and — and all this kind of business. But I’m going to tell you, I’ve — I’ve had some acquaintance with some small town policemen who, frankly, go a little overboard sometimes when they start looking at the rights of citizens versus trying to find big drug — big operations, especially in these small towns. I’ve known of — of small town police that have taken hatchets and — and broken down doors, in — in one of my towns, in the middle of the night, and unfortunately, they had the wrong house. I know of another case where they tried to confiscate a — a plane in DuPage Airport, and they had the wrong plane. They almost killed the pilot in the process of trying to stop the plane from — who was in the process of taking off and landing and trying to become a — a pilot. You know, I just think sometimes we’re just going too darn far with some of these things. I think the speaker on the other side has a — has a good point.
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You know, we have a — a Constitution and a Bill of Rights for a reason. I think this bill goes way too far, and we ought to stop and think what we’re doing.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Dudycz.

SENATOR DUDYCZ:
Well, thank you — thank you, Mr. President. I’d just like to share a few facts with Illinois’ consensual electronic surveillance legislation, where currently the Illinois court order requirement for consensual electronic surveillance endangers police officers. It impairs investigations of — of gangs, of drug trafficking and other crimes, and it also unnecessarily overburdens prosecutors in the court system. Illinois, of all the fifty states, is the most restrictive in the whole United States of America in respect to consensual electronic surveillance. There are over forty states in the federal — and the Federal Government, which allow law enforcement to utilize consensual electronic surveillance as an investigative tool without a court order, not “with”, but “without” a court order. Of the remaining states, the restrictions placed upon law enforcement are limited. And none of them, of the remaining states, are as restrictive or as severe as what we have in Illinois. A few more facts, Ladies and Gentlemen. Police must make…

PRESIDING OFFICER: (SENATOR WATSON)
Could we have some order, please? Thank you.

SENATOR DUDYCZ:
Police must make application to a court showing probable cause for a felony. Well, in — in Illinois, also, for your information, should the application made by the police officers would be denied, the police officer must notify the suspect in writing within ninety days that an attempt was made – not that it
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was completed, but an attempt was made – to obtain an order. Also, it compromises the investigation of the law enforcement community and possibly the safety of the undercover officers that are out there protecting us. And in Illinois, police are limited to ten days in which to conduct a court-authorized consensual surveillance, and once the surveillance has been conducted, in Illinois, the police are required to notify the suspect within ninety days. I — I disagree with Senator Fawell. This is — this bill is not going too far. Some would say that this — bill does not go far enough, but I would say, it’s a good — a good bill to begin with, and I would seek the affirmative support of everybody in the Senate.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Berman. Senator Berman.

SENATOR BERMAN:
Thank you, Mr. President. I rise in opposition of this bill. If you look at this bill, this is a blank check for any police officer or investigator to come in and wiretap your phones, your constituent phones, and they are off the hook. They can give any excuse they want. They were doing some investigation for some idea or other. When Senator — Dudycz says that Illinois is the most restrictive, he may say that in a critical way. I’m glad to hear that, in a very proud way. We have some protection for our citizens regarding eavesdropping, and 1 think that that should be a — a point of law in Illinois that we should all go home and be very proud of. Citizens that are not charged with crimes have a degree of private conduct, private conversation, that we, as lawmakers, respect. The way — best way to continue to respect that private conversations of our voters is to vote No.

PRESIDING OFFICER: (SENATOR WATSON)
No further discussion? Senator Barkhausen, to close.

SENATOR BARKHAUSEN:
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Let me say a couple of things in — in closing, Mr. President. First, I think it’s important to — to respond immediately to the comments made by the prior speaker. This bill has absolutely nothing to do with authorization to conduct wiretaps. The distinction between wiretaps and nonconsensual eavesdropping needs to be understood. Wiretapping involves overhearing a conversation between two individuals, neither of whom is a law enforcement official, and this has nothing to do with the subject of — the circumstances under which one can obtain authorization to overhear a conversation between two unrelated parties. Consensual or nonconsensual eavesdropping, on the other hand, has to do with — with recording, if you will, and under what circumstances, conversation in which one of the parties is a law enforcement official, and that’s what we’re talking about here. And what this bill in its current form would permit is — is the use of consensual eavesdropping; that is, a conversation being in which one of the — one of the members is — is a law enforcement official, to permit that to be overheard by another police officer, so that they might go to that officer’s rescue if he or she gets into trouble. Now, that conversation could be — could be recorded and a recording of that conversation could be used, as the bill is now written, only where an — an individual is either injured or killed at the time that conversation is recorded. Now, as I said, this is going back to the House. It’s anticipated that there will be a non-concurrence in the amendment for the purposes of a conference committee, in which, as I also said, there is already tentative agreement with the bar associations. Most of the individuals, as you know, from the bar association that were involved in these types of issues are criminal defense lawyers. So, if what we’re talking about here will ultimately be something that they agree to, then I submit to you that this is not at all objectionable, and it’s at least a step in the right direction,
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from the standpoint of law enforcement. I ask for your support.

PRESIDENT PHILIP:
All right. The question is, shall House Bill 1787 pass. Those in favor will signify by saying Aye. Those opposed, Nay. The voting is open. Have you all voted who wish? Have you all voted who wish? Take the record. On the question, there are 35 Ayes, 21 Nays, 2 voting Present. House Bill 1787, having received the required constitutional majority, is declared passed.

STATE OF ILLINOIS 88TH GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 69th Legislative Day June 29, 1993

Committee Report No. 1, House Bill 1787.

Madam Secretary, do we have a file — a Conference Committee Report on House Bill 1787?

ACTING SECRETARY HAWKER:
First Conference Committee Report on House Bill 1787.

PRESIDING OFFICER: (SENATOR DUDYCZ)

Senator Barkhausen.

SENATOR BARKHAUSEN:
Thank you, Mr. President and Members. The Conference Committee Report on House Bill 1787 is fairly close to the form in which it was previously approved by the Senate. The subject of the bill is consensual eavesdropping, meaning a — a conversation in which one of the parties…

PRESIDING OFFICER: (SENATOR DUDYCZ)
Pardon me, Senator Barkhausen.

SENATOR BARKHAUSEN:
…one of the parties consents to the conversation – in this case, a law enforcement official. The bill allows this conversation to take place without court approval in order, and in those situations where it is necessary, to protect an undercover officer conducting an investigation. Furthermore, the — the bill allows a limited form of admissibility of the content of a conversation, but only in those situations where a party to the recorded conversation is killed or suffers great bodily harm, or
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for the purpose of the direct impeachment of a witness. There are, in addition, certain bookkeeping and notice requirements that would be required of those recording such conversations. The bill is a product of a compromise between the Illinois State Police, who originally brought it to us, and the Illinois State Bar Association. I should note that it puts Illinois into the mainstream of some forty-eight other states that allow consensual eavesdropping without a court order and — and with full admissibility. This, I emphasize, only allows admissibility of such recordings under very limited circumstances. I ask for your support.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Any discussion? Senator Molaro.

SENATOR MOLARO:
Yes. Thank you, Mr. President, Ladies and Gentlemen of the Senate. What we have here — if you recall this bill, this is the bill where sometimes during the course of an investigation – and why this is being brought up – you would have State troopers or undercover officers being put in a position where their safety may be in jeopardy. So what they want to do is, when they go and they’re undercover, or they’re going to be at some buy or some bust and they’re going to be dealing with these gang members or drug dealers, they want to be able to have a device and eavesdrop on conversations they’re having with these drug dealers. And the reason they want the device, so the team that’s outside of this area, if something is going down that the safety of the officers is in jeopardy, they would be able to go in and supposedly save the officers. Well, that’s terrific, and that’s noble, and that’s a great idea. And it should be there. So we’re going to make an exception to the Eavesdropping Law. In Illinois right now you either have to have both parties’ consent or you need a court order. What we’re going to do is make an exception and say, since
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of course the drug dealers are never going to okay recording their conversation, we’re going to have an exception. If the police officer or undercover agent can wear the device, he does not need a court order, and he will not be guilty of the — violating the Eavesdropping Statute. And that’s terrific. But what this amendment says – and it goes a little further – and what it says is that any recording derived as a result of this exception — now, they’re not only going to wear it so the police officers outside can hear it; they’re going to record it now. And it says any recording derived as a result of this exception shall be inadmissible in any proceeding, except where a party present during such recording is injured or killed. Now, if you’re going to make an exception, and you’re going to allow the recording to be used as evidence – and I don’t see why we’re going to use this recording as evidence if we’re only allowing the eavesdropping for the safety of officers – why we’re now going to make it admissible if the party’s injured. In other words, if you’re going to have a right of privacy and you’re going to have a Fourth Amendment, either you’re going to need a court order or you don’t. You can’t say we’re going to make it admissible because someone got hurt. There’s no correlation. There’s no logic to it. It doesn’t make any sense. Either it’s admissible or it’s not. Either we’re going to violate the Fourth Amendment or we’re not. Either we’re going to chip away at it or not. To come up and say that it’s not admissible unless someone gets hurt – there’s no logic to it. What I think we’re having is, we’re going to have an end run to chip away at the Fourth Amendment and say it’s officer safety issue. The officer can wear the device. He can have his men outside. There is no reason to record it, and there is no reason whatsoever to make it admissible. Thank you.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Any further discussion? Senator Palmer.
Page 25

SENATOR PALMER:
Thank you, Mr. President. I want to follow up on Senator Molaro’s line of thinking. As I read my analysis, there are some other disturbing factors in here. And correct me if I’m wrong, Senator Barkhausen, but as I read this, it says that the Director of the Department of State Police shall issue regulations. And I would wonder: Is that the only check that we have on what I consider coming close to the wind on violating the Fourth Amendment? Secondly, it says “any private oral communication”. Does that mean that if someone is in a room with a suspected person and unwittingly is part of a conversation, that that innocent bystander’s conversation also becomes part of this record? And finally, again, this question of officer safety. If that is the only purpose of this bill, why will this written record of the interception or the recording be kept for ten years, and who is the custodian of that tape for those ten years, and does the person who has been recorded know that such information has been kept for ten years?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Senator — Senator Palmer, it’s — it’s been pointed out to me that the — that the regulations are basically consistent with current law and practice, and furthermore, at — really at the behest of those negotiating on behalf of the State Bar Association, the — the bill, in its current form now, requires the bookkeeping and notice requirements that are similar to nonconsensual eavesdropping, so that defendants can determine if proper procedures are being followed.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Palmer.

SENATOR PALMER:
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Thank you. I suggest, though, that that is after the fact – what’s done with the tape. That does not answer the question ahead of time: that we are sailing very close to the wind, as far as I’m concerned, in a Fourth Amendment right of not being recorded in such a way. I think- this is a very, very dangerous precedent to set.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hendon.

SENATOR HENDON:
Thank you, Mr. Chairman. Will the sponsor yield?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Sponsor indicates he will yield. Senator Hendon.

SENATOR HENDON:
Senator Barkhausen, I see — I have just a few questions. It says here that the recordings will only be done if a officer’s life is in jeopardy. Isn’t an officer’s life always in jeopardy out there on the streets?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
This only applies to drug investigations and forcible felonies.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
Can — will you name the — the long list of enforcible <sic> felonies for this Body?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAtJSEN:
We can probably, if you’re interested, give you a cite to -Section of Chapter 38 defining the forcible felonies.
Page 27

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
My question is, Senator: How many felonies fall into that category? And — and the reason why is we need to know — everyone in this Chamber needs to know how wide-ranging this use of recording devices. And I’m all for protecting police officers’ lives, but I saw — I read in the paper just the other day where another officer was killed stopping someone for a traffic violation. So a officer’s life is always in jeopardy. So we need to know exactly how far-reaching this clear violation, in my opinion, of the Fourth Amendment actually is.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Investigation of a traffic violation would not be one of them. There are twelve that are enumerated, and then it — the ones you would pretty well assume are included, obviously including murder, kidnapping and the like, and then there’s sort of a catchall phrase at the end: resulting in great bodily harm or permanent disability or disfigurement.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
Thank you, Mr. Chairman. I have in front of me Section 5-28 <sic> (5/2-8) and describes forcible felony: treason, first degree murder, second degree murder, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, arson, kidnapping, aggravated battery resulting in great bodily harm or permanent disability, and on and on and on and on and on. So it’s practically everything, including burglary and any — any old thing. And I’m just saying that this is far — far too
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outreaching here. And my other question: Why in the world would the records be held for ten years if it was simply there to protect the officer? That officer may be retired and came to the State Senate in ten years.

PRESIDING OFFICER: (SENATOR DUDYCZ)

Senator Barkhausen.

SENATOR BARKHAUSEN:
Mr. President, I’m glad to try to answer these questions. I mean, bottom line: If people are more interested in the — in the rights of criminal defendants than they are in police officers investigating dangerous felonies, don’t vote for the bill. I mean, the bill is supported by the State Bar Association, which, in my experience, after thirteen years as a Member of the Judiciary Committee watching representatives of the bar associations come in and — and continually take position on behalf of criminal defendants and against the positions of prosecutors in this State, the fact that they are for this bill ought to tell us something.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
I — I am personally offended by that, but I — I’m not going to let it bother me, because worse things have been said about me on this Floor. But I think that it is — it is a shame for you to stand there, Senator, and try to imply that people who are concerned about innocent people, who are simple bystanders who may simply be talking to someone that they didn’t even know was a drug dealer, or a burglar, or an arsonist or whatever, that they’re concerned about — about the criminal. We’re concerned about the innocent bystander. You, Senator, could be out there tomorrow. The Gentleman standing next to you — you don’t know what he does in his off-hours. You simply do not know. So anybody can be
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standing next to somebody in an innocent conversation and that person is under investigation for whatever reason – and I named the entire list here. And it is wrong for you to stand there and imply that those of us who are against this intrusion that — and against people that are innocently recorded and kept for ten years, that we are supporting criminals and against the police. I just want you to know, sir, that I happened to pass a — a lot of law-and-order legislation in the City Council, and have some here in this Chamber that were buried by the — the various chairmen of those committees, or Judiciary. So I am offended by your implication, sir. And what you need to look at is what happens to the innocent bystanders who have absolutely nothing to do with that particular criminal investigation. And I’d like for you to address that. What happens to the innocent people? It says here that the judge “may” – may – give them notification and “may” give them a copy of the tape, when it should say that the judge “shall” give any innocent bystander a copy of whatever was recorded to
them. Why doesn’t it say that the judge “shall” give them that information?

PRESIDING OFFICER: (SENATOR DUDYCZ)
…(microphone cutoff).. .assume that’s a rhetorical question, Senator Hendon. It’s a question. Senator Barkhausen. SENATOR BARKHAUSEN:
Let me, if I may — I know Senator Hawkinson has been waiting to speak. Maybe — I think his remarks will address answers to your question and some other points as well.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hawkinson, to answer senator sermon’s question. Senator Hendon.

SENATOR HENDON:
Thank — thank you, Mr. Chairman, and I certainly have a great deal of respect for my aisle mate here, but I did not ask Senator
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Hawkinson the question; I asked the question to Senator Barkhausen – and it is his bill – and I want to know what is his opinion of why innocent people do not get a copy of the tape recording that they don’t even know exists of — of their conversation. They may not — that tape may allow them to know for the first time that that person is a criminal. Why can’t they get the copy of the tape?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BAREHAUSEN:
Section 14-3B provides that notice of interception or recording is — is given to the individual not later than a hundred and twenty days after the termination of interception or recording or immediately upon the initiation of criminal recedings — proceedings. So, you know, there is notice.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hendon.

SENATOR HENDON:
And — and, Mr. Chairman, I’m trying to be brief, but — but the sponsor is kind of skating around the issue here. Section (f) <sic> (b) says that a court “may in its discretion” – may – m-a-y – at its discretion – “make available to those persons or their attorneys for inspection those portions of the intercepted communications…” It says “may”. It does not say “shall”. And it says at the court’s discretion. I’m simply asking, why doesn’t it say that the court “shall” give those innocent people copies of that communication?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hawkinson.

SENATOR HAWKINSON:
Thank you, Mr. President. Just a couple of points. I rise in support of the Conference Committee to House Bill 1787 for several
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reasons. One — one is a reason that, if I’ve listened carefully, has not been mentioned yet. There’s another important aspect to this bill, other than the one that’s been discussed. In Illinois, we have one of the strongest Eavesdropping Statutes in the nation. It goes far beyond the requirements of the Fourth Amendment to the Constitution or the Illinois Constitution, and that Eavesdropping Statute has made it an offense and prohibited one citizen from recording another citizen over the telephone, or otherwise, unless there’s consent of both parties. That goes far beyond what the Fourth Amendment requires, and that applies to all of us. A few years back the Illinois Supreme Court, in a — in a decision – the Beardsley decision – essentially overturned our own Statute and -and authorized citizens to start taping each other. This bill will revert that law back to what we intended it with our Eavesdropping Statute, so that citizens — private citizens will not be able to tape each other without consent. And that’s an extremely important part of this bill. It’s something that Senator Cullerton had in another piece of legislation. And this will make our law consistent again, and actually is more protective of our rights of privacy than is the current state of the law in Illinois. Secondly, on the part of the bill that has had the discussion so far: Arguably, the Beardsley decision would allow law enforcement to tape any conversation – not just those enumerated in this bill. This bill does not violate the Fourth Amendment. And I — I rose initially to indicate that we’re really not talking about implicating any change in the Fourth Amendment. Obviously, we’re not able to do that. The federal government currently allows wiretapping on all federal offenses in this manner, and clearly, the original bill, which we passed out of here, would allow a far broader wiretapping than this bill does. The Bar Association had objections to that. They have negotiated this out, and this bill is really a far more limited
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use and — and — occurs in only two cases: one, where someone is actually recorded and then gets on the witness stand and lies, and you can use that recording as direct impeachment; the other exception is the great bodily harm – the bodily harm exception. And I understand that was part of the — the compromise suggested by the Bar Association. There’s a legitimate public policy argument, as suggested by Senator Molaro’s remarks, over whether we ought to do that in great bodily harm or not, but I don’t think that the Fourth Amendment is implicated. And I would urge your approval of the Conference Committee Report to 1787.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen, to close.

SENATOR BARKHAUSEN:
Thank you, Mr. President. Let me — let me start by — by offering an apology, if — if any of my remarks were taken as a — as a personal offense. I — I am just simply puzzled that Illinois has been so behind the times in moving in the direction of criminal law enforcement policy that the federal government and more than forty other states have already taken, and we’re moving, you know, ever so slightly in the same direction by passing this bill, if we do. And — and that was the reason for my remarks, and I again urge your support.

PRESIDING OFFICER: (SENATOR DUDYCZ)
The question is, shall the Senate adopt Conference Committee Report No. 1 on House Bill 1787. Those in favor will vote Aye. Opposed, vote Nay. And the voting is open. Have all voted who wish? Have all voted who wish? Have all voted who wish? Take the record. On that question, the Ayes are 40, the Nays are 14, 4 voting Present. The Senate does adopt Conference Committee Report No. 1 on House Bill 1787, and the bill, having received the required constitutional majority, is declared passed.
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STATE OF ILLINOIS 88th GENERAL ASSEMBLY HOUSE OF REPRESENTATIVES TRANSCRIPTION DEBATE 75th Legislative Day June 30, 1993

Daniels: “Thank you Mr. Speaker, Ladies and Gentlemen of the House. Just to acknowledge that our most distinguished Governor of the State of Illinois, Jim Edgar is with us this morning.., this evening.
Steczo: “The Chair would like you to welcome the Honorable 3overnor to the chamber this evening. On Supplemental Calendar #1, appears House Bill 1787, under the Order of Conference Committee Reports. The Chair recognizes the Gentlemen from Cook, Representative Dart.”

Dart: “Thank you Mr. Speaker and Members of the House. House Bill 1787 is the result of the discussions and compromises made by the Department of State Police and the Illinois State Bar Association. It does two things, one of which is a clarification to straighten out the law in regards to consensual overhears.. The second part of it deals with consensual overhears for police officers’ safety, with numerous provisions in there to safeguard it. I would be happy to answer any questions.”

Speaker Steczo: “The Gentleman has moved for the adoption of the First Conference Committee Report on House Bill 1787. On that question, is there any discussion? The Chair
recognizes the Gentleman from Will, Representative Wennlund.”

Wennlund: “Thank you Mr. Speaker, Ladies and Gentlemen of the House. I rise in support of the Bill. What this does, and it’s strongly supported by the Illinois State Police, what
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it does is, it gives officers some method of protection against walking up to that car at night, or getting involved in a drug bust and…so that other state police can monitor that officer and watch out of his safety and
rescue him in the event he meets some undue force. It’s something that will help state police and other police agencies fight the war on drugs, and I urge your support.”

Speaker Steczo: “The Chair recognizes the Gentleman from Fulton, Representative Homer.”

Homer: “Will the Gentleman yield?”

Speaker Steczo: “He indicates that he will.”

Homer: “Representative Dart, would you advise us to the current status of the Illinois State Bar Association?”

Dart: “This was the result of working with them for a extended period, and I believe they’re at least neutral. They may be in support of it, that…I’m not willing to say they’re in support of it, but I know they’re at least neutral on it. A lot of this language is theirs.”

Homer: “Did the provision go into this report that was being requested by them to close the disparity in interpretation between statutory and common law with respect to one party consent? Did their language go in the Bill?”

Dart: “Yeah. That’s the one in answer to the Beardsley case. It was specifically drafted by them to try to clarify that so there is no more confusion on that.”

Homer: “Thank you.”

Speaker Steczo: “The question is, ‘Shall the House adopt the First…the Chair recognizes the Lady from Cook, Representative Davis.”

Davis: “Will the Gentleman yield?”

Speaker Steczo: “He indicates that he will.”

Davis: “Representative, this is really an eavesdropping Bill, is
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that correct?”

Dart: “No, what the Bill does, is it clarifies what we already presently have in law in regards to consensual overhears right now. There was a court which.. ,well, I say misinterpreted the statute which basically allowed for an individual to tape record another person’s conversation without any protections whatsoever. That’s the first provision of this. What this Bill does is says that you cannot do that, that is not something we will allow to occur, that’s the first provision. The second one says in these limited instances where a police officers safety is involved, that they can get through going through an elaborate procedure with the States Attorneys office and record keeping and notice provisions, they can get..be allowed to wear wire when they are in like drug purchases and the like.”

Davis: “So, let me be sure I understand you now. You’re saying the first provision is; that before a person can eavesdrop or record your conversation, you must be notified and give consent.”

Dart: “Exactly. What had.. .that’s how the law actually reads, but a court misinterpreted it as far as I.. .my view is. They interpreted it so that they said that only one party has to know its going on, and the court.. .they said that the other person had to actively demonstrate they have an expectation of privacy before it’s prohibited. So, this clarifies it and says that you have to tell the other person before you can do this.”

Davis: “Okay, now let me ask you this. On, I guess the other page here, it says ‘provides that any recording or evidence derived as a result of the exemption is inadmissible, unless the jury or impeachment exception implies.’Wanna
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explain that section?”

Dart: “What this is says, is that the information that is obtained cannot be used against the defendant unless the police officer is killed or great bodily injury so that he’s paralyzed or something he can’t come to court, those are the only times that any type of hearing could be used. The defense attorney, on the other hand, could use it if the defendant’s saying that the police officer took the dope and threw it at em, and the police officer is saying no I didn’t, I bought it off him, the defense attorney could use that information to impeach the police officers testimony.”

Davis: “Okay. What about #5; ‘requires notice to the person who was the subject of the interception or recording within a reasonable time.’”

Dart: “With.. .no more than 120 days. Present statute…” Davis: “But, this is after the fact.”

Dart: “It mirrors the present existing statute in regards to this.”

Davis: “Representative, does this take away existing freedoms from people? I don’t mean the protection of criminals, but I mean, are we taking away the freedoms that some people have who could be innocent, but because of this particular law they could go through an awful lot of difficulty?”

Dart: “No, because matter of fact the way the law is written, in particular it says that the States Attorney would not be able to use any of those tape recording devices anyway, so it’s not as if that’s gonna harm anybody. That …… be used. The States Attorney can’t walk in there with a tape and say I got you on tape. The only way that tape could ever be used is if the police officer who was.., in the narcotics transaction was shot and killed for instance.”
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Davis: “Let me say this, you know we could talk about narcotics transactions and all we want. I’m gonna be honest, I’m not interested in that.”

Dart: “That’s what the Bill goes for.”

Davis: “I’m really not interested.”.

Dart: “That’s what the Bill is directed towards though.”

Davis: “I’m gonna have to to give ya a ‘present’ vote on this, and I’ll tell you why Representative Dart, I hesitate, and I refuse, really, to vote on any more legislation that takes the freedoms of people, like having a private conversation. You get yourself involved in a situation where policeman want to harm you, and you’re innocent, and they tape part of a conversation, or they change what’s been said, and you could be irreparably harmed. I don’t think we do our citizens in Illinois justice and we could throw up that red flag of narcotics, but it just doesn’t wash. This is not the kind of legislation that’s going to rid this state or this country of drugs and the transporting of drugs. This, in my opinion, is just another removal of a constitutional freedom that we all seek and want, and that’s to have free conversation with somebody without feeling you’re being taped.”

Speaker Steczo: “Is there any further discussion? The Chair recognizes the Gentleman from Champaign, Representative Johnson.”

Johnson, Tim: “I think we always get to the end of these Sessions, and then a Bill that might not otherwise have a chance of passing, because it’s so flz. ;ets to us in this form, and then we’re more inclined to support it.
Everybody ought to oppose this Bill. This Bill is an attempt to get one more element of the camels nose under the tent with respect to eavesdropping. What makes this
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country unique, makes Illinois unique, as a part of the United States is certain elements of civil liberties that we’ve come to accept, that really are unique in the world, and one of them is the ability to be free from efforts of government to intrude in one’s privacy. I can debate the merits of this Bill in detail all day, but the bottom line is that everybody in Illinois is subject to having their privacy interfered with and their concept of fundamental rights damaged by the passage of this Bill. This is one more attempt, most of which have been beaten off before by a bipartisan coalition of people who still think that the Bill of Rights means something. But, one more attempt to try to chip away in the fake name, phony name of law enforcement at our basic civil liberties. This is a bad, bad Bill. It’s a bad precedent. I didn’t sign the Conference Committee Report for precisely that reason, and the Bill oughta be defeated.”

Speaker Steczo: “The Chair recognizes the Gentleman from DuPage, Representative Roskam.”

Roskam: “Thank you, Mr. Speaker, Ladies and Gentlemen of the House. With all due respect to the previous Speaker, my good friend, I respectfully disagree; and I did sign that Conference Committee Report. In my opinion, this is an opportunity for us to empower the men and women who are on the front lines of the fight against crime in their efforts to go undercover and what not. This evidence cannot be used against a defendant unless a police officer ends up dead in the line of duty, …… it’s used for impeachment. So, in my view, this is an opportunity for us to give the men and women on the front lines the tools to defend themselves, and I would urge an ‘aye’ vote.”

Speaker Steczo: “Representative Dart, to close.”
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Dart; “Thank you, Mr. Speaker. Just to clarify the record on this. This is a very limited procedure we’re talking about here. The one concept is actually going to try to protect more people’s rights because of a court interpretation. Presently, under the way these courts have interpreted the law, a constituent can contact you on the telephone, put a tape recorder on you, and unless you actively state to your constituent, ‘I do not wish to have this recorded’, they can do it and avoid the eavesdropping law. This closes that loophole in that. The second provision is in response to officers who were shot. There was an officer shot in DuPage county, it’s a very dangerous thing. The world has changed a great deal, and this is unique, it is not unique. There are 42 other states that have similar provisions to this. There’s numerous safeguards in here. This is not evidence we’re talking either. we talking the only time this tape recording could ever be used is if the police officer is shot. If he’s shot at the door, or if there’s great bodily injury to him, and even in that instance, it’s very limited. The safeguards are numerous in there. We’re trying to bring Illinois in.. .up to snuff with the other states in the union right now, and it’s purely a question of protecting the police officers, who on a daily basis, we put in jeopardy of their own lives. This is a very important measure. We are not intruding further on citizen’s rights, and I would urge your support.”

Speaker Steczo: “The question is, ‘Shall the House adopt the First Conference Committee on House Bill 1787. All those in favor will signify by voting ‘aye; those opposed by voting ‘no’. The voting is open. Have all voted who wish? Have all voted who wish? Have all voted who wish?

Mr. Clerk, please take the record. On this question, there
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are 82 voting ‘yes’, 31 voting ‘no’, 2 voting ‘present’, and the House does adopt the First Conference report on House BIll 1787, and this Bill having received the required Constitutional Majority, is hereby declared passed.

STATE OF ILLINOIS 90TH GENERAL ASSEMBLY HOUSE OF REPRESENTATIVESTRANSCRIPTION DEBATE 107th Legislative Day April 1, 1998

Speaker Hartke: “Discussion on the Bill. This Bill is on Short Debate. The Chair recognizes the Gentleman from Kendall, Representative Cross.”

Cross: “I’m joined by all my colleagues with their hands up taking this off Short Debate. Thank you, Mr. Speaker.” Speaker Hartke: “I didn’t see the…

Cross: “… now see.”

Speaker Hartke: “Yes, I do.”

Cross: “Will the Sponsor yield?”

Speaker Hartke: “Indicates he will.”

Cross: “Representative, any opposition to this Bill?”

Fritchey: “No, Sir.”

Cross: “Even with both Amendments?”

Fritchey: “None that I’m aware of.”

Cross: “I’m a little.., not puzzled, but could you explain to us again? Go over the eavesdropping section. We couldn’t hear anything you said about it.”

Fritchey: “There’s actually a few items with respect to eavesdropping. With respect to an eavesdropping device, it now will define a eavesdropping device as something that can intercept or record conversations over pagers and fax machines, as well as telephonic electronic media. With respect to, who was exempted from law enforcement,it now exempts law enforcement officers from listening to conversations that do not qualify as private oral communications. And what specifically does not qualify as a private oral communication anymore are communications that take place on stolen cellular service. So, for example, if an individual has a conversation on a stolen cellular phone, or a cloned phone, he no longer has an expectation of privacy on a conversation that takes place
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on that stolen cellular phone.”

Cross: “John, it’s kind of tough to hear you. Is this an ongoing problem in Cook County?”

Fritchey: “What this is, it’s trying to do a few things. It’s trying to modernize and bring up to date some of the eavesdropping law.., eavesdropping laws and private communication laws by stating when there is an expectation of privacy and when there isn’t. The other provisions in there are to give a tool to law enforcement. What’s happened now, through technology, is offenders are kind of a step ahead of law enforcement right now. They can clone a cellular phone and still be able to evade detection on that, because up until now, we cannot use electronic surveillance on that cellular phone because they have an expectation of privacy. This Bill’s aimed at taking that expectation of privacy away. It additionally now includes pagers and fax machines as items that can be eavesdropped upon. So, now we can go for enforcement of that, and as I said, what’s happened is, you have individuals that are cloning pagers to find out which informants are calling police officers. So, the short answer to your question is, yes, it’s an ongoing problem, which is why the State’s Attorney came up with this package.”
Cross: “Now, are we reading this correctly that the violation here, under the eavesdropping section, is a Class I Felony?”

Fritchey: “Violation of the eavesdropping is a Class IV, subsequent offenses is a Class III. If the… If the violation involves eavesdropping on a police officer, a state’s attorney, an attorney general, a judge, or a Legislator while in the performance of their official duties, then it’s a Class I, and that again is to protect
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any of these individuals from interference with their official duties.”

Cross: “Why… I mean, I can understand the state’s attorneys maybe, and I can understand police. Why on earth should it be a Class I Felony if someone overhears what we’re saying as Members of the General Assembly? Why are we a protected class?”

Fritchey: “It’s not just what we’re saying, for example, during this debate. It’s private communications. It may be a furtherance of legislative duties, discussions that we may be having with other protected Members, police officers, judges, et cetera, and that they want to accord all these classes a higher level of protection.”

Cross: “I know we talk about a lot of National Security issues, maybe that’s why we make it a Class I. I don’t have any other questions. I know Representative Durkin has some.”

More developing…. check back often.

Tagged , , ,

75-Year Prison Sentence for Taping the Police? The Absurd Laws That Criminalize Audio and Video Recording in America

Reprinting this article courtesy the original here

http://www.alternet.org/rights/149706/75-year_prison_sentence_for_taping_the_police_the_absurd_laws_that_criminalize_audio_and_video_recording_in_america

COMMENTARY BY MARK MCCOY:

What is being done to Michael Allison is nothing more than psychological terrorism directed towards anyone who would exhibit audacity in taping police. Government, and police in particular, cannot withstand documentation of their violent, public acts. They act illegally, immorally, and violently against people, using the so-called “law” as their justification. In reality, there is no such law. As with Mr. Allison, the words of the legislature, another arm of the criminal body of the State, are twisted and aimed at him to send an overt message to the rest of us; “You people are not in control.”

I have been taping government officials for some time. I used to work as a private investigator and am very adept at “wiring” myself. I have recorded conversations with the Chief of Police of Fairview Heights, the Mayor of Collinsville, St. Clair County Circuit Clerk (now State’s Attorney) Brendan Kelly, Judge Vincent Lopinot, and Judge LeChien. The Fairview Heights Police, Joshua Alemond and Aaron Nyman, who beat and Tasered me on February 17, 2009 were recorded via my mobile phone and bluetooth headset, before the Tasering and beating destroyed the equipment. My truck was also wired for video and audio, but I did not have the video running at that time. The police did, however, find a micro-cassette recorder in my console and removed the cassette from it, unlawfully. What they failed to find is the microphone hidden in the door frame that went to another digital recorder. Even after illegally searching my truck and breaking a lock to get to a hidden compartment, the digital recording survived their search.

I will be posting copies of the audio on another page from my encounters with these criminals. Luckily, when the police beat me and destroyed the phone they must have assumed it was totally inoperable, but failed to check the removable memory card for the recorded audio. I have since removed all of my “illegal” recordings off site to a number of servers for safe-keeping and no longer keep the originals in my possession. I am also working on establishing an anonymous FTP server where people who do record can upload their audio/video without a traceable trail to their identity.

I am confident Mr. Allison will not be found not guilty, and the State will most likely try to strike a deal. I say to Mr. Allison, you hold all the cards and trust the jury. As far as the juvenile  megalomaniacs writing these deceitful and oppressive laws… to hell with you.

As far as Judge Kimbra Harrell, you may wish to contact her personally and let her know how you feel about her distorted view of authority.

Office:

KIMBARA G HARRELL
117 KITCHELL
OLNEY, IL 62450
(618) 392-7070

Residence:


KIMBARA G HARRELL
Born 1957
3495 VAN RD
OLNEY, IL 62450
(618) 395-4040

The growing accessibility of recording devices is prompting officials to dig up dusty old eavesdropping laws that are being used to intimidate the nation’s citizens.
January 28, 2011 |

Last January, Michael Allison, a 41-year-old mechanic from Bridgeport, Illinois, went to court to protest what he saw as unfair treatment from local police officers. Allison is an auto enthusiast who likes to tinker with cars, several of which he keeps on his mother’s property in the neighboring town of Robinson. Because both towns have “eyesore,” or abandoned property, rules that require inoperable cars to be either registered or kept in a garage (which neither house had, and which Allison could not afford to build), Allison’s cars were repeatedly impounded by local officials.

Allison sued the city of Bridgeport in 2007, arguing that the eyesore law violated his civil rights and that the city was merely trying to bilk revenues from impound fees. This apparently enraged the local police, who, Allison alleges, began harassing him at home and threatening arrest when Allison refused to get rid of his cars.

Shortly before his January 2010 court date, Allison requested a court reporter for the hearing, making it clear to the county clerk that if one was not present he would record the proceedings himself.

With the request for a court reporter denied, Allison made good on his promise to bring his own audio recorder with him to the courthouse. Here’s what happened next, as reported by Radley Balko in the latest issue of Reason magazine:

Just after he walked through the courthouse door the next day, Allison says Crawford County Circuit Court Judge Kimbara Harrell asked him whether he had a tape recorder in his pocket. He said yes. Harrell then asked him if it was turned on. Allison said it was. Harrell then informed the defendant that he was in violation of the Illinois wiretapping law, which makes it a Class 1 felony to record someone without his consent. “You violated my right to privacy,” the judge said.

Allison responded that he had no idea it was illegal to record public officials during the course of their work, that there was no sign or notice barring tape recorders in the courtroom, and that he brought one only because his request for a court reporter had been denied. No matter: After Harrell found him guilty of violating the car ordinance, Allison, who had no prior criminal record, was hit with five counts of wiretapping, each punishable by four to 15 years in prison. Harrell threw him in jail, setting bail at $35,000.

That’s up to 75 years in prison for breaking a law Allison did not know existed, and which he violated in the name of protecting himself from what he saw as an injustice.

As Balko points out, Allison’s case may be extreme, but he is hardly alone in facing outsized punishment for efforts to combat police wrongdoing. Take Christopher Drew and Tiawanda Moore, two Chicagoans highlighted in the New York Times last week. Drew, a 60-year-old artist, faces up to 15 years in prison for using a digital video recorder during his December 2009 arrest for selling art without a permit. Drew had planned on getting arrested in protest of the permit law, which he saw as a violation of artists’ rights. He was unaware that filming the ordeal was illegal.

Likewise, Moore, a 20-year-old Southside resident, did not know it was illegal to record a conversation she had with two police officers last August, and she too faces a prison sentence of up to 15 years for doing so. Moore’s case is especially troubling because she was in the process of filing a complaint with the two officers about a third officer, who Moore alleges sexually harassed her in her home. She told the Times that she “was only trying to make sure no other women suffered at the hands of the officer” by making the recording. Presumably, she was also trying to protect herself in case she faced another lewd advance. Instead, the officers tried to talk her out of filing her complaint and then slapped her with eavesdropping charges when they found out her Blackberry was recording.

These stories all highlight Illinois’ draconian eavesdropping laws, which, ever since a privacy provision was overturned in 1994, have made it illegal to record audio of an individual without his or her consent. Carrying a sentence of between four and 15 years, the laws in the state are some of the harshest in the nation.

Illinois isn’t the only state waging a war on citizens with recording devices. Across the country, the growing accessibility of recording devices (like smart phones) and media-sharing sites (like YouTube) is prompting officials to dredge up dusty old eavesdropping and wiretapping laws, leading to “a legal mess of outdated, loosely interpreted statutes and piecemeal court opinions that leave both cops and citizens unsure of when recording becomes a crime,” according to Balko.

The good news is that few people have actually been convicted under these laws for documenting police wrongdoing; neither Michael Allison nor Christopher Drew nor Tiawanda Moore are likely to go to prison for the recordings they made. The bad news, though, is that these laws are being used to intimidate the nation’s citizens, making them afraid to stand up against police officers and other officials who are acting illegally and/or immorally. As long as no one is convicted, the law goes unchallenged, notes Adam Schwartz, senior staff counsel for the ACLU of Illinois.

The intimidation techniques extend to still photographers as well, as documented by Carlos Miller on the blog Photography is Not a Crime, which catalogs rights violations against people with cameras and teaches citizens about their legal rights to photograph people and places. (Things that can almost always be photographed from a public place, “despite popular opinion,” according to Miller’s Web site: criminal activities, law enforcement officers, industrial facilities.) Miller himself has been illegally arrested and had his photos deleted for taking pictures of police officers.

Although he’s always beaten his cases in court, Miller recognizes that coming out on top after the fact isn’t good enough. “There’s this idea that just because charges are dropped, there’s no harm,” Miller told Reason. “But that isn’t right. There’s definitely harm when someone is illegally arrested and has to spend a night or more in jail. Your life is disrupted. You now have legal bills to deal with. There’s also harm when a cop wrongly tells someone they can’t photograph or record. He’s intimidating them into giving up their rights.”

Some of the most widely viewed posts on Miller’s blog — “St. Louis Cop Beats Man Down in Youtube Video,” “Surveillance video once again shines light on Philadelphia PD corruption” — are testament to why citizens need the explicit legal right to document officers’ wrongdoings. Without the recordings of these events (and many, many others like them), justice probably never would have been realized, and the truth never brought to light. Unless we overturn the nation’s most over-the-top eavesdropping laws, our legal system will continue to obstruct, rather than promote, justice.

Maloney wants home schoolers to register with the State

When the State imposes itself upon the private pursuits of people, particularly those involving the concerns of their children, it subjects itself to the just and righteous remedies the people may elect to employ to preserve their liberties.

Senator Maloney obviously exhibits a serious mental defect and should be considered dangerous. If his megalomaniacal bill should pass then I urge you take appropriate measures.

Maloney, like so many others who receive votes by unwitting or ignorant people pining to be told how to live, suffers from a delusion whereby he suddenly has the right and power to put pen to paper and compel people to do his bidding. What is tacitly implied behind this legislation, as with all legislation, is the threat of force or removal of the children from the parents if the State does not feel they have sufficiently prostrated themselves before the its power. Make no mistake, the State will send armed DCFS officers to your home to confiscate your children so they may be properly indoctrinated, should you fail to do so. This is not possible without you first registering your children, something parents are all too eager to do.

Maloney, in his bill, cites some constitutional authority based on the State’s power to regulate and provide “education”. However, the Illinois Constitution does not apply to the people, it applies to the State. The State cannot take that document and turn it into a weapon to puff its chest and assail private individuals. You did not write the Constitution, you did not sign the Constitution, and you are not bound by the Constitution. Whoever ratified that document back in 1970 had no authority to preemptively legislate for your private affairs. This shows the systemic ignorance and arrogance of politicians where they invoke the Constitution, as if they were rubbing a magic lamp, thereby producing a genie to provide them supernatural powers.

However, so many parents are already mired in the administrative muck that is the State’s regulations that they are engaging a battle while hobbled. They have their marriage license, their children’s social security numbers, tax credits, vaccinations…. they are the epitome of a State conscript. If the State wanted to, it could just move against you, but the move would be audacious and publicly questioned. Therefore, the ruse of “please register “our” children, or else” is legislated to coerce you. If you really believe your children are “your” children, think again. I know dozens of stories where the State has absconded with the offspring of people for not meeting the standards of the State, thereby invoking its parens patrias, and exercising discretion over your progeny. You exist for no other reason than to produce tax-bearing fruit for the State. Period. If you should fail to properly arm the little wretches with the requisite misinformation and suppressed critical thinking the State will do it for you.

Maloney and his ilk can squawk about the Constitution all they like. It is nothing but a piece of paper. I’ve seen it in the archives in Springfield. It is not sacred nor divine. It is the ramblings of some who seek a device with which to justify control over other people. I urge you to refuse to comply with this Bill, should it become law. Stand your ground and make the State act upon it. Prepare yourselves. If you lack the principles or temerity, you may as well cloak your babies in the State flag and deliver them to the capital, then hang your head in shame. Do not teach them of freedom or liberty while you are wearing chains. There is no worse lesson than that taught through sanctimony.

You can contact Mr. Maloney privately at his home in Chicago or feel free to email him.

10040 TALMAN AVE
CHICAGO, IL 60655
(773) 233-0045
maloney@senatedem.state.il.us

Illinois Administrative Procedure Act – Contested Hearings

Illinois Legislative Page

(5 ILCS 100/1‑30) (from Ch. 127, par. 1001‑30)
Sec. 1‑30. “Contested case” means an adjudicatory proceeding (not including ratemaking, rulemaking, or quasi‑legislative, informational, or similar proceedings) in which the individual legal rights, duties, or privileges of a party are required by law to be determined by an agency only after an opportunity for a hearing.
(Source: P.A. 87‑823.)

(5 ILCS 100/1‑35) (from Ch. 127, par. 1001‑35)
Sec. 1‑35. “License” includes the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law, but it does not include a license required solely for revenue purposes.
(Source: P.A. 87‑823.)

(5 ILCS 100/1‑40) (from Ch. 127, par. 1001‑40)
Sec. 1‑40. “Licensing” includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license.
(Source: P.A. 87‑823.)

(5 ILCS 100/Art. 10 heading)
ARTICLE 10. ADMINISTRATIVE HEARINGS

(5 ILCS 100/10‑5) (from Ch. 127, par. 1010‑5)
Sec. 10‑5. Rules required for hearings. All agencies shall adopt rules establishing procedures for contested case hearings.
(Source: P.A. 87‑823.)

(5 ILCS 100/10‑10) (from Ch. 127, par. 1010‑10)
Sec. 10‑10. Components of rules. All agency rules establishing procedures for contested cases shall at a minimum comply with the provisions of this Article 10. In addition, agency rules establishing procedures may include, but need not be limited to, the following components: pre‑hearing conferences, representation interview or deposition procedures, default procedures, selection of administrative law judges, the form of the final order, the standard of proof used, which agency official makes the final decision, representation of parties, subpoena request procedures, discovery and protective order procedures, and any review or appeal process within the agency.
(Source: P.A. 87‑823.)

(5 ILCS 100/10‑15) (from Ch. 127, par. 1010‑15)
Sec. 10‑15. Standard of proof. Unless otherwise provided by law or stated in the agency’s rules, the standard of proof in any contested case hearing conducted under this Act by an agency shall be the preponderance of the evidence.
(Source: P.A. 87‑823.)

(5 ILCS 100/10‑20) (from Ch. 127, par. 1010‑20)
Sec. 10‑20. Qualifications of administrative law judges. All agencies shall adopt rules concerning the minimum qualifications of administrative law judges for contested case hearings. The agency head or an attorney licensed to practice law in Illinois may act as an administrative law judge or panel for an agency without adopting any rules under this Section. These rules may be adopted using the procedures in either Section 5‑15 or 5‑35.
(Source: P.A. 87‑823.)

(5 ILCS 100/10‑25) (from Ch. 127, par. 1010‑25)
Sec. 10‑25. Contested cases; notice; hearing.
(a) In a contested case, all parties shall be afforded an opportunity for a hearing after reasonable notice. The notice shall be served personally or by certified or registered mail or as otherwise provided by law upon the parties or their agents appointed to receive service of process and shall include the following:
(1) A statement of the time, place, and nature of the hearing.
(2) A statement of the legal authority and jurisdiction under which the hearing is to be held.
(3) A reference to the particular Sections of the substantive and procedural statutes and rules involved.
(4) Except where a more detailed statement is otherwise provided for by law, a short and plain statement of the matters asserted, the consequences of a failure to respond, and the official file or other reference number.
(5) The names and mailing addresses of the administrative law judge, all parties, and all other persons to whom the agency gives notice of the hearing unless otherwise confidential by law.
(b) An opportunity shall be afforded all parties to be represented by legal counsel and to respond and present evidence and argument.
(c) Unless precluded by law, disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.
(Source: P.A. 87‑823.)

(5 ILCS 100/10‑30) (from Ch. 127, par. 1010‑30)
Sec. 10‑30. Disqualification of administrative law judge.
(a) The agency head, one or more members of the agency head, or any other person meeting the qualifications set forth by rule under Section 10‑20 may be the administrative law judge.
(b) The agency shall provide by rule for disqualification of an administrative law judge for bias or conflict of interest. An adverse ruling, in and of itself, shall not constitute bias or conflict of interest.
(Source: P.A. 87‑823.)

(5 ILCS 100/10‑35) (from Ch. 127, par. 1010‑35)
Sec. 10‑35. Record in contested cases.
(a) The record in a contested case shall include the following:
(1) All pleadings (including all notices and responses thereto), motions, and rulings.
(2) All evidence received.
(3) A statement of matters officially noticed.
(4) Any offers of proof, objections, and rulings thereon.
(5) Any proposed findings and exceptions.
(6) Any decision, opinion, or report by the administrative law judge.
(7) All staff memoranda or data submitted to the administrative law judge or members of the agency in connection with their consideration of the case that are inconsistent with Section 10‑60.
(8) Any communication prohibited by Section 10‑60. No such communication shall form the basis for any finding of fact.
(b) Oral proceedings or any part thereof shall be recorded stenographically or by other means that will adequately insure the preservation of the testimony or oral proceedings and shall be transcribed on the request of any party.
(c) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
(Source: P.A. 87‑823.)

(5 ILCS 100/10‑40) (from Ch. 127, par. 1010‑40)
Sec. 10‑40. Rules of evidence; official notice. In contested cases:
(a) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence and privilege as applied in civil cases in the circuit courts of this State shall be followed. Evidence not admissible under those rules of evidence may be admitted, however, (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced, any part of the evidence may be received in written form.
(b) Subject to the evidentiary requirements of subsection (a) of this Section a party may conduct cross‑examination required for a full and fair disclosure of the facts.
(c) Notice may be taken of matters of which the circuit courts of this State may take judicial notice. In addition, notice may be taken of generally recognized technical or scientific facts within the agency’s specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.
(Source: P.A. 87‑823.)

(5 ILCS 100/10‑45) (from Ch. 127, par. 1010‑45)
Sec. 10‑45. Proposal for decision. Except where otherwise expressly provided by law, when in a contested case a majority of the officials of the agency who are to render the final decision has not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency, shall not be made until a proposal for decision is served upon the parties and an opportunity is afforded to each party adversely affected to file exceptions and to present a brief and, if the agency so permits, oral argument to the agency officials who are to render the decision. The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision and shall be prepared by the persons who conducted the hearing or one who has read the record.
(Source: P.A. 87‑823.)

(5 ILCS 100/10‑50) (from Ch. 127, par. 1010‑50)
Sec. 10‑50. Decisions and orders.
(a) A final decision or order adverse to a party (other than the agency) in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties or their agents appointed to receive service of process shall be notified either personally or by registered or certified mail of any decision or order. Upon request a copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record.
(b) All agency orders shall specify whether they are final and subject to the Administrative Review Law.
(c) A decision by any agency in a contested case under this Act shall be void unless the proceedings are conducted in compliance with the provisions of this Act relating to contested cases, except to the extent those provisions are waived under Section 10‑70 and except to the extent the agency has adopted its own rules for contested cases as authorized in Section 1‑5.
(Source: P.A. 92‑16, eff. 6‑28‑01.)

(5 ILCS 100/10‑55) (from Ch. 127, par. 1010‑55)
Sec. 10‑55. Expenses and attorney’s fees.
(a) In any contested case initiated by any agency that does not proceed to court for judicial review and on any issue where a court does not have jurisdiction to make an award of litigation expenses under Section 2‑611 of the Civil Practice Law, any allegation made by the agency without reasonable cause and found to be untrue shall subject the agency making the allegation to the payment of the reasonable expenses, including reasonable attorney’s fees, actually incurred in defending against that allegation by the party against whom the case was initiated. A claimant may not recover litigation expenses when the parties have executed a settlement agreement that, while not stipulating liability or violation, requires the claimant to take correction action or pay a monetary sum.
(b) The claimant shall make a demand for litigation expenses to the agency. If the claimant is dissatisfied because of the agency’s failure to make any award or because of the insufficiency of the agency’s award, the claimant may petition the Court of Claims for the amount deemed owed. If allowed any recovery by the Court of Claims, the claimant shall also be entitled to reasonable attorney’s fees and the reasonable expenses incurred in making a claim for the expenses incurred in the administrative action. The Court of Claims may reduce the amount of the litigation expenses to be awarded under this Section, or deny an award, to the extent that the claimant engaged in conduct during the course of the proceeding that unduly and unreasonably protracted the final resolution of the matter in controversy.
(c) In any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency’s exceeding its statutory authority or the agency’s failure to follow statutory procedures in the adoption of the rule, the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorney’s fees.
(Source: P.A. 87‑823.)

(5 ILCS 100/10‑60) (from Ch. 127, par. 1010‑60)
Sec. 10‑60. Ex parte communications.
(a) Except in the disposition of matters that agencies are authorized by law to entertain or dispose of on an ex parte basis, agency heads, agency employees, and administrative law judges shall not, after notice of hearing in a contested case or licensing to which the procedures of a contested case apply under this Act, communicate, directly or indirectly, in connection with any issue of fact, with any person or party, or in connection with any other issue with any party or the representative of any party, except upon notice and opportunity for all parties to participate.
(b) However, an agency member may communicate with other members of the agency, and an agency member or administrative law judge may have the aid and advice of one or more personal assistants.
(c) An ex parte communication received by any agency head, agency employee, or administrative law judge shall be made a part of the record of the pending matter, including all written communications, all written responses to the communications, and a memorandum stating the substance of all oral communications and all responses made and the identity of each person from whom the ex parte communication was received.
(d) Communications regarding matters of procedure and practice, such as the format of pleadings, number of copies required, manner of service, and status of proceedings, are not considered ex parte communications under this Section.
(Source: P.A. 87‑823.)

(5 ILCS 100/10‑65) (from Ch. 127, par. 1010‑65)
Sec. 10‑65. Licenses.
(a) When any licensing is required by law to be preceded by notice and an opportunity for a hearing, the provisions of this Act concerning contested cases shall apply.
(b) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license shall continue in full force and effect until the final agency decision on the application has been made unless a later date is fixed by order of a reviewing court.
(c) Except as provided in Section 1‑17 of the Department of Natural Resources Act, an application for the renewal of a license or a new license shall include the applicant’s social security number. Each agency shall require the licensee to certify on the application form, under penalty of perjury, that he or she is not more than 30 days delinquent in complying with a child support order. Every application shall state that failure to so certify shall result in disciplinary action, and that making a false statement may subject the licensee to contempt of court. The agency shall notify each applicant or licensee who acknowledges a delinquency or who, contrary to his or her certification, is found to be delinquent or who after receiving notice, fails to comply with a subpoena or warrant relating to a paternity or a child support proceeding, that the agency intends to take disciplinary action. Accordingly, the agency shall provide written notice of the facts or conduct upon which the agency will rely to support its proposed action and the applicant or licensee shall be given an opportunity for a hearing in accordance with the provisions of the Act concerning contested cases. Any delinquency in complying with a child support order can be remedied by arranging for payment of past due and current support. Any failure to comply with a subpoena or warrant relating to a paternity or child support proceeding can be remedied by complying with the subpoena or warrant. Upon a final finding of delinquency or failure to comply with a subpoena or warrant, the agency shall suspend, revoke, or refuse to issue or renew the license. In cases in which the Department of Healthcare and Family Services (formerly Department of Public Aid) has previously determined that an applicant or a licensee is more than 30 days delinquent in the payment of child support and has subsequently certified the delinquency to the licensing agency, and in cases in which a court has previously determined that an applicant or licensee has been in violation of the Non‑Support Punishment Act for more than 60 days, the licensing agency shall refuse to issue or renew or shall revoke or suspend that person’s license based solely upon the certification of delinquency made by the Department of Healthcare and Family Services (formerly Department of Public Aid) or the certification of violation made by the court. Further process, hearings, or redetermination of the delinquency or violation by the licensing agency shall not be required. The licensing agency may issue or renew a license if the licensee has arranged for payment of past and current child support obligations in a manner satisfactory to the Department of Healthcare and Family Services (formerly Department of Public Aid) or the court. The licensing agency may impose conditions, restrictions, or disciplinary action upon that license.
(d) Except as provided in subsection (c), no agency shall revoke, suspend, annul, withdraw, amend materially, or refuse to renew any valid license without first giving written notice to the licensee of the facts or conduct upon which the agency will rely to support its proposed action and an opportunity for a hearing in accordance with the provisions of this Act concerning contested cases. At the hearing, the licensee shall have the right to show compliance with all lawful requirements for the retention, continuation, or renewal of the license. If, however, the agency finds that the public interest, safety, or welfare imperatively requires emergency action, and if the agency incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. Those proceedings shall be promptly instituted and determined.
(e) Any application for renewal of a license that contains required and relevant information, data, material, or circumstances that were not contained in an application for the existing license shall be subject to the provisions of subsection (a).
(Source: P.A. 95‑331, eff. 8‑21‑07; 96‑328, eff. 8‑11‑09.)

(5 ILCS 100/10‑70) (from Ch. 127, par. 1010‑70)
Sec. 10‑70. Waiver. Compliance with any or all of the provisions of this Act concerning contested cases may be waived by written stipulation of all parties.
(Source: P.A. 87‑823.)

(5 ILCS 100/Art. 15 heading)
ARTICLE 15. SEVERABILITY AND EFFECTIVE DATE

(5 ILCS 100/15‑5) (from Ch. 127, par. 1015‑5)
Sec. 15‑5. Severability. If any provision of this Act or the application of any provision of this Act to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and for this purpose the provisions of this Act are severable.
(Source: P.A. 87‑823.)

(5 ILCS 100/15‑10) (from Ch. 127, par. 1015‑10)
Sec. 15‑10. Effective date. This Act takes effect upon becoming law.
(Source: P.A. 87‑823.)

Illinois Municipal Law With Selected Commentary

There is a body of law in Illinois called “Municipal Law”. This law creates, defines, and empowers local governments. The authority for a municipality to exercise “Home Rule” powers originated with the 1970 Illinois Constitution. An explanation of Illinois Municipal Law can be found on this page. The page is somewhat large so allow ample time for it to load.

Some excerpts -

B. [1.2] General Concepts and Definitions

A “municipal corporation” has been defined as a public corporation created by government for political purposes and having subordinate and local powers of legislation. People ex rel. Mortell v. Bergman, 253 Ill. 469, 97 N.E. 695 (1912); BLACK’S LAW DICTIONARY, p. 1042 (8th ed. 2004). As they exist today, these public corporations can be compared with private corporations. Just as private corporations have a charter under which they are organized, so, too, municipalities have a “charter” in the sense that they are organized under the general law as it exists in the Illinois Municipal Code (Code), 65 ILCS 5/1-1-1, et seq. Just as shareholders control the operations of a private corporation by ratifying a charter and electing a board of directors, the citizens comprising the electorate control the workings of the public corporation by opting to form either a city or a village under one of the forms provided in the Code and by electing officials (city council or village board), who in turn carry on the business (government) and affairs of the city or village by passing and adopting ordinances (akin to bylaws passed by the board of directors of a private corporation).

[My Commentary] So, if we look at it in these terms, we could say that Ford is a corporation (municipality) that is owned by the shareholders (Citizens/electors) who in turn elect the Officers, or Board (City Council, Mayor…) to perform the duties set forth in the Charter which were written to control the function of the “body” in achieving the ends of the shareholder/citizen. This body, in turn, passes ordinances (By-laws) that regulate the functions of that body in meeting the objectives of the shareholder/citizen. The shareholders believe that their dividends (benefits) are being wasted on providing health care coverage to workers (City employees) who smoke, and therefore want to make Ford a non-smoking company (municipality).  The Board of Ford (City council) passes an ordinance (By-law) that prohibits smoking for employees of Ford (City employees). Now, does that mean that Ford can force the smoking shareholders to quit smoking as well? No. The shareholders are not subject to the regulations governing the operation of the corporate body of Ford, the same way that Citizens are not subject to the regulations (ordinances) of the corporate body (Collinsville).

So, how do we, the People, create a government that is laid out with a charter and by-laws for the purpose of securing our freedoms and liberty, as well as performing in a collective capacity that which would be otherwise inefficient or cumbersome for us to perform individually? Why, you take up “residency”, of course. Normally, Citizens retain all of their natural rights that are protected by the Constitution. However, if you want to derive any of the “corporate benefits” of the “corporation”, you must become a resident of that corporation and therefore subject to the governing by-laws of that corporation. You do not need to be a resident to walk into a public library and read a book. However, in order to take that book out of the library’s control and have it entrusted to you for safe-keeping and return, you must be a resident of that corporate body which subjects you to the ascribed penalties for violating your agreement with the library for the use and safe return of that book. That library card, that you have to sign (give your permission and therein claim the status of resident) your name and claim residency. That contract is then enforceable with fines and punishment for your violating any provision of that agreement.

Residents derive benefits or exercise privileges that Citizens do not. If your tax dollars are going to fund a function of government then you have paid your way and are asking for nothing more than a Citizen is entitled to. However. if you are deriving a benefit that cannot be traced to a service provided through your payment of taxes, then you are acting as a resident. Most of the things provided by government in its proper capacity are paid by our taxes, i.e.., water, sewer, trash, roads…etc. The City gets you to claim the status of resident in order to receive these services, which is a trap, but you are not automatically conscripted to the ordinances unless they specifically apply to a particular benefit derived.

III. TYPES OF POLICE POWER

A. [7.3] Statutory Grants of Power

Since a municipality does not have the entire police power of the state but only what is specifically delegated to it, it is imperative that the practitioner carefully examine the statutes to determine whether a particular power exists. Most police-type powers are listed in Article 11 of the Illinois Municipal Code (Code), 65 ILCS 5/1-1-1, et seq. Other powers may be found in other portions of the Code and in other statutes. A careful examination of the index to the Illinois Compiled Statutes will help locate powers in the Code and other statutes.

II. AUTHORITY FOR AND LIMITATIONS ON ORDINANCE ENACTMENT

A. [8.6] In General

Home rule municipalities, i.e., cities, villages, and incorporated towns with a population in excess of 25,000 or that have adopted home rule by referendum, derive their authority to “exercise any power and perform any function pertaining to [their] government and affairs” from Article VII, §6, of the Illinois Constitution. See the chapter on home rule and intergovernmental cooperation and conflict in Volume IV of IICLE’s ILLINOIS MUNICIPAL LAW SERIES Non-home rule municipalities must follow Dillon’s Rule (see 1 John F. Dillon, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS §237 (5th ed. 1911)) and have under the Constitution “only powers granted to them by law” together with a few specified powers relating primarily to administrative and financial matters. ILL.CONST. art. VII, §7. General statutory authority for municipalities to “pass all ordinances and make all rules and regulations proper or necessary, to carry into effect the powers granted to municipalities,” is contained in Illinois Municipal Code §1-2-1. It is well established that this statutory authorization to enact ordinances does not in and of itself authorize the adoption of an ordinance on or with respect to any particular subject or occupation. The power to legislate on a particular subject must be shown in an express constitutional or statutory provision (Father Basil’s Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805 (1946)) or be necessarily incident to powers expressly granted (City of Bloomington v. Wirrick, 381 Ill. 347, 45 N.E.2d 852 (1942), cert. denied, 63 S.Ct. 1175 (1943)). A municipality may not, however, delegate powers by ordinance that are the obligation of the municipality. See, e.g., Doak v. City of Moline, 323 Ill.App.3d 597, 753 N.E.2d 544, 257 Ill.Dec. 349 (3d Dist. 2001). A municipality must comply with any statutory conditions associated with its exercise of a power authorized by statute. See, e.g., City of Crystal Lake v. Cunningham, 52 Ill.App.3d 819, 368 N.E.2d 142, 10 Ill.Dec. 656 (2d Dist. 1977), requiring posting of parking restrictions.

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