Category Archives: Illinois Constitutional History

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

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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:

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(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 , , ,

Illinois Constitutional Convention

What to expect:

Illinois is ready for a new constitution. The time is right for a constitutional convention. Our present Illinois Constitution has failed us miserably, and has allowed government to creep into almost every aspect of our lives. Through this website I hope to garner enough interest in having the people call for a constitutional convention, and also to point out the inherent weaknesses in our present document. We need a total re-write of our constitution. Our republic has been slowly eroding away, thanks to our so-called leaders, lawyers, judges and ignorance. I hope to stop that erosion. This site will be in development constantly, so visit often to keep apprised of updates and events. In-short, here is where the new Illinois Constitution begins, and the tyranny of the past ends.

I will be seeking the People’s vote in becoming a delegate to the constitutional convention. I believe that my knowledge and understanding of our constitution, as well as the shortcomings and failings of the present one, will afford me the opportunity to serve in forming a new constitution that will have the necessary wording to avoid any ambiguity in drawing well-defined limits for government, while leaving everything not defined to the People. I am not a parchment idolater. I do not look to the artifices of mischievous, self-aggrandizing men in seeking to understand the boundaries of my freedom. Such contrivances are the ruminations of oligarchic elitists who pander to our patriotism, exploit our ignorance, and cultivate our fear. I am a stalwart of natural rights and natural law.

There can be expected to be many who decry a new Illinois Constitution. The opposition from the people-at-large will be infinitesimal. However, there will be such an effort consolidated amongst associations, industries, organizations, and bureaucracies so as to lend to the perception that this government exists merely as a protectionist racket for monopolistic corporatism. It is this consolidation of money, power, and influence that has tantalized the elected servants of the people; and thus, having basked in their incestuous patrimony of corruption and privilege, devise ever more clever ways of causing the people to vie for the scraps from their tables.

I predict that much, if not all of the opposition, will come from Chicago. Chicago is a bastion of corruption, power, and money. The problems inherent in such an urban environment set the tone for other communities in Illinois. Let’s face it. Chicago pretty much runs Illinois. Whether it’s political corruption, nazi-like police tactics, crime, corporate protectionism…. Chicago picks the playlist we all dance to.  Chicago should be either ceded to the federal government as an enclave of socialist fermentation, or there needs to be a provision in the constitution that provides for special circumstances to address large metropolitan units possessing particular problems that require people to relinquish their personal liberty in favor of privileges. I predict that an effluent consisting of constitutional law attorneys, academics, and displaced philosophes waxing Hobbs and social utility will attempt to sweep away pro-convention constructionists, sovereigns, and natural rights proponents who exhibit the audacity to tinker with the constitution.

Before embarking upon another constitutional convention, we should reflect back on, not where the other constitutions were inadequate, but where we were so neglectful, indifferent, apathetic, and greedy as to allow ourselves to be subjugated and patronized as though we were catatonic troglodytes meandering aimlessly in search for a sovereign to protect us and compel our allegiance. We must once again assert that we are the true sovereigns. Government possesses no inherent sovereignty. We allow it only to exercise what limited sovereignty we bestow upon it to effect our just and lawful ends. Let those who wish to submit do so, but let the rest who refuse to be ruled retain the recourse and the means with which to repel any governmental aggression. So where do we go from here?

First, I will go through the text of the previous constitutions of Illinois and explain how they reflect the People’s intent to form a limited government. I will also identify significant political milestones that would later be reflected in Illinois changing constitution; milestones that were not necessarily in maintaining state sovereignty and autonomy.

Second, I will breakdown our present Illinois Constitution with a comparative analysis between it and the original, along with annotations and case law.

Third, I will provide wording for a new constitution along with annotations for why I chose such wording.

After all is said and done, I hope to convince the People that they should demand a constitutional convention; elect me as a delegate; and demand the wording I offer for the new Illinois Constitution. This is a fairly daunting and exhaustive task for one man. I will be updating this site as I progress, so please make it a point to visit often. I will also be asking for the People’s input and comments to my efforts. Remember, this is merely a constitution. It is the blueprint, the organic law for that legal fiction, the mischievous artifice called government. It’s purpose is limited and specific. It can be destroyed as easily as it can be created. The people lending themselves to the animation of agencies, officers, and bureaucrats are flesh-and-blood. They may call themselves authorities, sovereigns, governors, but they are people in costume playing to your indoctrinated consent for them to act through your abdication of power.

Case Law, Court Rulings, Interpretation

Case Law, Court Rulings, Interpretation

Brown v. City of Chicago
42 Ill.2d 501, 250 N.E.2d 129
Ill. 1969.
May 28, 1969

42 Ill.2d 501, 250 N.E.2d 129
Supreme Court of Illinois.
Joseph I. BROWN, Jr., et al., Appellants,
v.
The CITY OF CHICAGO et al., Appellees.
No. 41550.
May 28, 1969.

L. Louis Karton, Chicago, for appellants.

Raymond F. Simon, Corp. Counsel, Chicago (Marvin E. Aspen and Robert J. Collins, Asst. Corp. Counsel, Edmund Hatfield, Chicago, Ill., of counsel), for appellees.

KLINGBIEL, Justice.
This case involves the constitutional validity of two Chicago ordinances regulating the possession of firearms and requiring their registration. Three individuals and a sporting goods store brought suit in the circuit court of Cook County to enjoin the City and its officials from enforcing them. On motion of defendants the complaint was stricken and the cause dismissed. Plaintiffs appeal.

The ordinances became effective April 15, 1968, and appear as Chapters 11.1 and 11.2 of the Municipal Code of Chicago, Chapter 11.1 pertains to the registration of firearms. It requires detailed records to be kept when a firearm is sold or given away, including full identification of the firearm as well as the person to whom it is sold or given. A *503 registration form must be completed and mailed to the office of the city collector within 48 hours. Persons who have acquired their firearms prior to the date of the ordinances are also required to register possession. The city collector is then to forward to the possessor or purchaser a registration certificate with full identifying information, which must be carried with the firearm and exhibited on request of any police officer. Certain classes of persons are declared ineligible to register, including minors under 18-years-of-age, narcotic addicts, felons, and mental defectives, and all such persons are forbidden to have firearms. Chapter 11.2, relating to the possession of guns, makes it unlawful for any person to carry a rifle, shotgun, or other firearm except in his home or place of business. The chapter is made inapplicable to peace officers and other authorized classes enumerated therein.

To sustain their charge of invalidity plaintiffs employ a ‘shotgun’ technique, alleging a dozen different grounds therefor in addition to claiming that the ordinances will not achieve their object of reducing crime. In substance the principal contentions are that the City lacks power to legislate with regard to gun control because the State has pre-empted the field, that the ordinances violate the provisions of the Federal constitution concerning the right of the people to keep and bear arms, that they **131 are vague, confusing and inconsistent with the statute on the subject, that they unlawfully delegate legislative power to the city collector and contravene the doctrine of separation of powers, and that they constitute an unreasonable exercise of police power.

[1] With regard to the first contention it is suggested that whatever power the City had to regulate firearms has been repealed by implication by an act effective July 1, 1968. (Ill.Rev.Stat.1967, ch. 38, par. 83-1 et seq.) The argument is without merit. The statute does not require the registration of weapons, as does the Chicago registration ordinance.*504 Rather it deals with registration of the individual owner of firearms. Its declared purpose merely is ‘to provide a system of identifying persons who are not qualified to acquire or possess firearms and firearm ammunition * * *.’ (Ill.Rev.Stat.1967, ch. 38, par. 83-1.) Unlike the registration certificate for which the ordinance provides, the identification cards required by the Act do not even refer to or identify particular weapons. There is no inconsistency or repugnancy between the two, and the legislature has not pre-empted the field of gun control. As this court said in Kizer v. City of Mattoon, 332 Ill. 545, 549, 164 N.E. 20, 22: ‘While municipal ordinances must be in harmony with the general laws of the state, and in case of a conflict the ordinance must give way, the mere fact that the state has legislated upon a subject does not necessarily deprive a city of power to deal with the subject by ordinance. Police regulations enacted by a city under a general grant of power may differ from those of the state upon the same subject, provided they are not inconsistent therewith.’ See, also Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N.E.2d 495.

[2] Also invoked is the second amendment to the United States constitution, which says that ‘(a) well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’ Contentions that this right precludes firearm regulation and control have been answered both in this State (Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182), and, more recently, elsewhere. (Burton v. Sills, 53 N.J. 86, 248 A.2d 521.) They need not be dealt with again here. As the opinion in the Burton case points out, regulation which does not impair the maintenance of the State’s active, organized militia is not in violation of either the terms or the purposes of the second amendment.

[3] [4] Plaintiffs argue that the definition of ‘firearms’ in the ordinances is broader than the one in the statute, and that even though a person obeys all the requirements of the latter *505 he will not necessarily be protected thereby from prosecution for violating the ordinances. This does not constitute a valid objection. As we have indicated, the statute and the ordinances have differing objectives. Nor is there merit in objections that the definition includes parts of a weapon, that the ordinances are vague and indefinite, that they duplicate other ordinances, that they are inconsistent with statutes on the subject, that during the 30-day period which the city collector is given to forward the registration certificate the owner may be penalized for not having one, and that in other enumerated respects the plaintiffs’ constitutional rights are violated. We find no merit at all in these multiple criticisms, and no useful purpose would be served by discussing them in detail.

[5] Included in the registration ordinance’s definition of firearms which must be registered is a ‘firearm silencer’. By statute it is made a crime to possess such a device (Ill.Rev.Stat.1967, ch. 38, par. 24-1(a)(6).) The circuit court held that the part of the ordinance relating to silencers is unconstitutional, on the ground that it violates the privilege against self-incrimination, but that the remainder of the ordinance is not thereby invalidated. Plaintiffs here urge the court erred in not declaring**132 that the entire ordinance was therefore void. We cannot accept the argument. The portion relating to firearm mufflers or silencers is clearly severable from the other provisions, and it can hardly be said that the latter would not have been passed if silencers had not been included.

[6] The fact that a part is unconstitutional does not require that the remainder be held void unless all the provisions are so connected as to depend upon each other. If what remains after the invalid portion is stricken is complete in itself and capable of being executed wholly independently of that which is rejected, the invalid portion does not render void the entire ordinance unless it can be said that the city council would not have passed it with the invalid portion eliminated. *506 (People ex rel. Engle v. Kerner, 32 Ill.2d 212, 205 N.E.2d 33; People ex rel. Adamowski v. Wilson, 20 Ill.2d 568, 170 N.E.2d 605; McDougall v. Lueder, 389 Ill. 141, 58 N.E.2d 899, 156 A.L.R. 1059.) That the remaining provisions in the case at bar are complete in themselves and would have been passed even with the silencer portion eliminated is too clear for further discussion.

[7] The registration ordinance requires a seller to maintain a register containing the date of sale, the name, address, age, physical description and occupation of the purchaser, the price of the firearm, its description and serial number, the purpose for which it is obtained, the permit number and ‘other relevant information deemed necessary by the City Collector.’ It is claimed that the quoted phrase is an unlawful delegation of legislative power to the city collector, and unlawfully confers upon a member of the executive department the discretion to determine what additional information the citizen shall produce.

[8] The position cannot be sustained. The discretion is not to be construed as being uncontrolled. It can be exercised only within limits which are relevant to the purpose of identification and is, we think, subject to adequate standards. Absolute criteria whereby every detail necessary in the enforcement of a law is anticipated need not be set forth in the ordinance itself. While a legislative body cannot delegate its general power to determine what the law shall be, it may delegate to others the authority to do those things which it might properly do itself but cannot do as understandingly or advantageously. (Hill v. Relyea, 34 Ill.2d 552, 216 N.E.2d 795.) The city collector in administering the ordinance is in a position to determine more advantageously when and what further descriptive information is needed. In doing so he is not exercising a legislative power as contemplated by the separation-of-powers article in the constitution.

[9] Each of the ordinances provides that any person violating its provisions shall be fined $500. The plaintiffs contend that this ‘mandatory’ penalty infringes on the function of *507 the judiciary to determine the punishment, in contravention of the separation-of-powers requirement contained in Article III of the Illinois constitutions, S.H.A. We cannot agree. The sum provided for is within the limits of the power conferred by statute (Ill.Rev.Stat.1967, ch. 24, par. 1-2-1), and the mere fact that the maximum penalty is imposed in any case does not make the ordinances void. City of Arcola v. Wilkinson, 233 Ill. 250, 84 N.E. 264.

[10] Plaintiffs argue at length that strict gun laws do not tend to reduce crime, and statistics and excerpts from reports of surveys are quoted to show that legal restrictions are easily circumvented by experienced criminals. The shameful fact is pointed out that it is unsafe to walk alone at night in many neighborhoods and parks, and it is suggested that firearms might often be necessary for self-protection. These arguments, whatever validity they might have, are not appropriately addressed to this court. They relate to matters of legislative instead of judicial concern, and **133 bear on the advisability of the present provisions rather than on their validity.

We have carefully considered the plaintiffs’ arguments and contentions, many of which consist in little more than bare statements that particular aspects contravene due process or some other constitutional provision, but find them without sufficient merit to warrant further discussion. The circuit court of Cook County was correct insofar as it upheld the ordinances and dismissed the complaint. The judgment will be affirmed.

Judgment affirmed.

Ill. 1969.
Brown v. City of Chicago,
42 Ill.2d 501, 250 N.E.2d 129

Pierce v. State
42 Okla.Crim. 272, 275 P. 393
Okla.Crim.App. 1929.
March 16, 1929

42 Okla.Crim. 272, 275 P. 393
Criminal Court of Appeals of Oklahoma.
PIERCE v STATE.
No. A-6407.
March 16, 1929.

Syllabus by the Court.

C. B. Leedy and L. E. Moyer, Jr., both of Arnett, for plaintiff in error.

Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.

CHAPPELL, J.
The plaintiff in error, hereinafter referred to as defendant, was tried in Ellis county, Okl., on the 9th day of August, 1926, upon an information filed in the county court charging the defendant with unlawfully, willfully, and wrongfully carrying upon and about his (the said Fritz Pierce’s) person, a Colt’s automatic revolver, without authority of law, and contrary to the statute in such cases made and provided.

The defendant was found guilty, and was sentenced to pay a fine of $25, from which judgment of the court the defendant appeals.

The facts as disclosed by the evidence of the state are: That J. A. Hanley, Mr. Devenney, and Mr. Thoroughman had gone to the premises of the defendant for the purpose of searching the premises for a still. The officers had a search warrant to search the premises of the defendant, and, upon their *394 arrival at the premises of the defendant, the defendant came to the door and had a gun on his person, on his right side in the top of his pants, stuck down under his belt, extending inside of his trousers, about half of the gun being visible. That this was an automatic revolver, about a .38. That, during the time the officers were present on the premises of the defendant, the defendant came out in the yard with his gun, and made trips into the house and out into the yard at different times during the time the search was being made. At the time the officers were ready to leave, one of the officers took the gun off the person of the defendant. No effort was made by the defendant to use the gun, but he claimed that he had the gun because he had heard that he was liable to be robbed, and that he had some money about his premises, and that he purchased the gun and kept it for the purpose of protecting himself against any intruders who might attempt to rob him.

[1] There is but one question raised in the brief of the defendant, and that question is whether or not, under the Constitution and laws of the state of Oklahoma, the defendant had a right to carry a gun on his person while in his own house and yard.

The defendant in his brief states his allegation of error in the following language: “All assignments will be considered in one assignment. That under the Constitution (Bill of Rights) Sec. 26, of Article 2, the defendant committed no offense, and the evidence is insufficient to sustain a conviction.”

This contention presents squarely to this court the question of whether the Constitution and laws of the state of Oklahoma prevent any person from carrying any pistol, revolver, bowie knife, dirk knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon on his person while in his house or in the curtilage of his premises, and whether he may be convicted and punished for the act under the Constitution and laws of this state.

Section 26, article 2, of the Constitution of Oklahoma, reads as follows: “The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

The defendant is prosecuted under section 1992, C. O. S. 1921, which provides as follows: “It shall be unlawful for any person in the State of Oklahoma to carry upon or about his person any pistol, revolver, bowie-knife, dirk-knife, loaded-cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided.”

Section 1994, C. O. S. 1921, provides: “Public officers while in the discharge of their duties or while going from their homes to their place of duty or returning therefrom shall be permitted to carry arms, but at no other time and under no other circumstances: Provided, however, that if any public officer be found carrying such arms while under the influence of intoxicating drinks, he shall be demed guilty of a violation of this article as though he were a private person.”

Section 1995, C. O. S. 1921, provides: “Persons shall be permitted to carry shot-guns or rifles for the purpose of hunting, having them repaired, or for killing animals, or for the purpose of using the same in public muster or military drills, or while traveling or removing from one place to another and not otherwise.”

The defendant does not come within any of the exceptions mentioned in such statutes.

In the case of Ex parte Thomas, 1 Okl. Cr. 210, 97 P. 260, 20 L. R. A. (N. S.) 1007, in the syllabus of the case, this court held: “The provisions of the Statutes of Oklahoma (Sections 2502, 2503, Wilson’s Rev. & Ann. St. Okla. 1903) prohibiting the carrying of the weapons therein set out are not repugnant to each other, or violative of section 26 of article 2 of the Bill of Rights of the Constitution of Oklahoma, but the valid provisions of such statutes extended to and put in force in the state by the provisions of section 21 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277) and section 2 of the Schedule of the Constitution.”

The body of the opinion enlarges and discusses at length the right to carry a pistol or a concealed weapon. The court says the question now arises: “Is a pistol the character of arms in contemplation of the constitutional convention and of the people of the state when they declared that the right of a citizen ‘to carry and bear arms,’ etc., ‘shall never be prohibited.’ We hold that it is not, and most of the states where it has been passed upon support us in this conclusion. Bishop on Statutory Crimes, § 793; Andrews v. State, 3 Heisk. (Tenn.) 165, 8 Am. Rep. 8; Fife v. State, 31 Ark. 455, 25 Am. Rep. 556; English v. State, 35 Tex. 473, 14 Am. Rep. 374; Aymette v. State, 2 Humph. (Tenn.) 154; Hill v. State, 53 Ga. 472; City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 3 L. R. A. (N. S.) 168, 115 Am. St. Rep. 196, 7 Ann. Cas. 925.”

In Mathews v. State (Okl. Cr. App.) 244 P. 56, the court said:

“The provisions of the statutes of Oklahoma (sections 1991, 1992, C. O. S. 1921), prohibiting the carrying of the weapons therein set out, are not violative of section 26 of article 2 (Bill of Rights) of the Constitution of Oklahoma.”

“The evidence is brief, and is, in substance, that the defendant is a practicing attorney of Payne county; that at the time the offense is charged the defendant appeared before a justice of the peace at Stillwater as attorney for *395 some persons in that court, and at the time had in his right-hand coat pocket a revolver, the barrel of which protruded through the pocket and was exposed. The defendant admitted that he carried the pistol as alleged, * * * and that he carried the pistol for his protection. The contention is advanced that, under section 26 of the Bill of Rights of the state Constitution, he had a right to carry the pistol for his protection. This section of the Constitution is as follows: The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.’ The prosecution was conducted under section 1991, Comp. Stat. 1921, which is: ‘It shall be unlawful for any person in the state of Oklahoma to carry concealed on or about his person, saddle or saddle bags, any pistol, revolver, bowie-knife, dirk, dagger, slungshot, sword-cane, spear, metal knuckles or any other kind of knife or instrument manufactured or sold for the purpose of defense, except as in this article provided.’ The Supreme Court had occasion to construe this statute in the case of Ex parte Thomas, 1 Okl. Cr. 210, 97 P. 260, 20 L. R. A. (N. S.) 1007, in which case it was held that the right to bear arms, as provided by section 26 of the Constitution, supra, has reference to arms of a military character, such arms as are used for purposes of war, and does not prevent the Legislature from prohibiting the carrying of weapons such as may be concealed about the person and used in private quarrels, and which do not contribute to the common defense; that the Legislature, in the exercise of the police power of the state, without any infringement of the constitutional rights of the citizens, may prohibit and punish the promiscuous carrying of arms. That case was approved and followed by this court in the case of Beard v. State, 7 Okl. Cr. 154, 122 P. 941. We adhere to the principles of law announced in those cases.”

In 40 Cyc. pp. 856 to 864, inclusive, in discussing “Place and Manner of Carrying,” we have this language: “Under statutes making it an element of the offense of carrying a weapon that it be carried on or about the person, it is so carried when it is in the hand or clothing of accused, or in a basket carried in his hand, or upon or under the seat of the vehicle in which he is riding, but not when it is in some other part of the vehicle. It is immaterial what locality a person is in when carrying a weapon, except where the statute expressly allows one to carry a weapon on his own premises or about his place of business, or except where it is a distinct statutory offense to carry a weapon to certain public places, assemblies, or gatherings. Neither is it material that the time and distance the weapon is carried is short, where it is wholly within the possession of accused during that time.”

Section 40 of article 5 of the Constitution of Oklahoma provides: “The Legislature shall provide for organizing, disciplining, arming, maintaining, and equipping the Militia of the State.”

[2] Herein is shown clearly that the Constitution contemplates the maintenance of a militia, and, taking this in connection with the other provisions and the views expressed by the courts from whose decisions we have quoted and the history of and ends to be attained by the arms-bearing provisions, we believe there is no room for doubt that the arms defendant had a right to bear, and which right could never be prohibited him, relates solely to such arms as are recognized in civilized warfare and not those used by the ruffian, brawler, or the assassin.

[3] Under article 2, § 26 (Bill of Rights), of the Constitution of Oklahoma, the Legislature has power to not only prohibit the carrying of concealed or unconcealed weapons described in sections 1991, 1992, C. O. S. 1921, but also has the power to even prohibit the ownership or possession of such arms. Some of the states under similar constitutional provisions have prohibited the ownership, but the Legislature of Oklahoma has not seen fit to go that far. As the law now is in this state, a person may lawfully own and possess any of the weapons named in sections 1991, 1992, and may move such weapons from room to room in their place of residence, but may not wear them on their person and transport them about the yard as shown by the evidence to have been done by the defendant in this case.

[4] In the trial of the case, the defendant testified substantially as follows: “That he was a single man living alone, and a friend of his told him that three fellows, which were named, intended to rob or hi-jack him, and that he purchased this pistol about six weeks before the officers came down to search, and had the pistol on his person, but had never carried it off his premises, that this was his only home, had lived at this place over a year, and owned other lands, but rented the lands out, that this place was a rented place, with only a house and small yard. That Jess Miles told him, that Boyd wanted Miles to help hijack defendant, and defendant says he always had about $100.00 about his house. Defendant says he never threatened any one, told the officers to come in and search but they found nothing in the way of whiskey or liquor.”

In the case of Shepherd v. State (Okl. Cr. App.) 192 P. 235, this court held: “In a prosecution for carrying a concealed weapon, an offered defense that the revolver which defendant was carrying concealed on his person was a 44-caliber gun commonly known *396 as an ‘army gun,’ and was carried to resist a threatened attack on his life, was not a sufficient defense.”

There being no question of fact in this case, but merely one of law, we hold that the defendant was properly convicted of unlawfully carrying a revolver.

The judgment is therefore affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J. (dissenting).
I cannot concur in the views of the majority opinion, wherein it holds that the defendant could carry the pistol he was carrying from room to room in his home but could not carry it into his yard, the curtilage of his home. Section 26, art. 2, of the Constitution of Oklahoma, is as follows: “The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

Section 1992, C. O. S. 1921, being the section under which this defendant is prosecuted, is as follows: “It shall be unlawful for any person in the State of Oklahoma to carry upon or about his person any pistol, revolver, bowie-knife, dirk-knife, loaded-cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided.”

Under the Constitution, supra, the Legislature has regulated the carrying of weapons. There is no law which prohibits the defendant from owning and possessing the pistol he was carrying, for which he was arrested and convicted. It is urged by the defendant that, under section 26, art. 2 (Bill of Rights), he committed no offense, and that the evidence introduced by the state against him is insufficient to sustain a conviction. With this contention I agree. Several opinions of the court are cited in the majority opinion, none of which are applicable to the facts in this case, for the reason the party charged in the cases cited was away from his home and in a public place. There is no dispute as to the facts. All the evidence shows that the witnesses against the defendant went to defendant’s home possessed with a search warrant to search the same; that, when they arrived at his home and advised the defendant that they had a search warrant to search his home, the defendant raised no objections; at the time of their arrival, the defendant had the pistol he is charged with unlawfully carrying stuck under his belt on the right side, in the top of his pants; that the officers found nothing called for in the search warrant. The testimony shows that, while they were searching, the pistol still being in defendant’s belt where it was when they first arrived, the defendant walked into the yard, the curtilage of his home, and back into the house.

The search was completed by the officers without finding anything called for in the search warrant. They then took the pistol from the defendant and arrested him for unlawfully, willfully, and wrongfully carrying about his person a Colt’s automatic revolver The defendant insists that the testimony in this case is insufficient to sustain a conviction, for the reason that he was not carrying the pistol in violation of our statute; that, being at home and in his yard, the curtilage of his home, he had a right to own and possess the pistol he was carrying, and to carry it in his house and upon his yard, the curtilage of his home; and that in so doing he was not violating the law prohibiting the carrying of weapons. This seems to be the first time in the history of the criminal courts that any one has ever been arrested for carrying a weapon in his own home or within his yard, the curtilage of his home under a statute regulating the wearing or carrying of a pistol. Many cases are found where the defendant has been arrested for carrying weapons in violation of the statutes of his state, yet I fail to find any where a man has been arrested and convicted for carrying a weapon that he had a right to own and possess in his house or in his yard, the curtilage of his home, nor does the majority opinion cite any case from any court in this or any other state where the defendant has ever been convicted for carrying a pistol in his home or his yard.

After a careful search of authorities, trying to find one case to sustain the majority opinion, I have failed. I find a case not exactly in point, but by analogy may be construed in defendant’s favor. In Tucker v. State, 105 S. W. 499, the Court of Criminal Appeals of Texas, in passing upon the question, made the following statement:

“It is contended that the evidence is not sufficient. There seems to be no practical contradiction in the evidence that appellant was arrested at home and carried by the officers to the county seat, and while en route was searched for weapons and none found. Upon reaching the jail, he was again searched and a knife found upon him, which the witnesses testified was not a dirk, and did not know whether it was a bowie knife or not, that it did not correspond with the definition of a bowie knife, and they did not know what sort of a knife it was.”

The court further said:

“It is the state’s case that he was arrested at his home, and carried under arrest to the county seat and placed in jail. When arrested at home, he had on the knife, and had no opportunity to get it at any other time or place, and being under arrest his actions were not voluntary, but in obedience to the wish and will of the officers.”

*397 “If he had carried the knife himself unfettered by the arrest off his premises, he might be guilty, but we do not believe the law intended, nor is it the law, that a party having on his person a pistol, or an interdicted weapon at his home, and being forced away with it on him, that it would be such a carrying of an inhibited weapon as would make him subject to punishment.”

From an examination of the record, the defendant was at his home where he had a right to be, exercising peaceably his rights, and, in the exercise of those rights, he was not interfering with any other individual. I cannot believe that the defendant, by carrying the pistol in his house and into his yard, the curtilage of his home violated the statute of this state. I do not believe that the intention of the Legislature, when it enacted the law regulating the carrying of weapons, intended to abridge the sacred right of a citizen of the state by prohibiting him from doing a certain thing within the walls of his home, and to say that he could not do the same in his yard, the curtilage of that home. From time immemorial, the home, be it ever so humble, has been sacred-the castle of the occupant-with the right to repell invasion or any trespass thereon. For centuries the right to occupy that home has gone unchallenged. The curtilage to the home is a part of that home, and no court, so far as I have been able to find, has ever attempted to abridge the rights of the occupant of the home and to the exercise and use of the curtilage the same as the home. Without the unrestricted use of the curtilage, the home would be useless. To say that an individual may own and possess, and have the right to carry from one room to another in the house, a pistol, but that he cannot carry it into the yard, the curtilage, in my judgment strikes at the very foundation of the privacy of the home; its sacred protection that has been thrown around it since the organization of a home would be destroyed. The regulations of the carrying of weapons, in my judgment, was not intended to restrict the rights of an individual in his home and the curtilage thereto.

I think that the defendant was wrongfully convicted; that he violated no law when he was in his home or curtilage thereto in carrying the pistol he carried, and that his objections to the evidence were well taken and should have been sustained, and that the evidence is insufficient to sustain a conviction, and should be reversed, with directions to discharge the defendant.

Okla.Crim.App. 1929.
PIERCE v. STATE.
42 Okla.Crim. 272, 275 P. 393, 73 A.L.R. 833

Carlton v. State
63 Fla. 1, 58 So. 486
Fla. 1912
March 26, 1912

63 Fla. 1, 58 So. 486

Supreme Court of Florida.
CARLTON et al.
v.
STATE.
March 26, 1912.
Rehearing Denied May 15, 1912.

Syllabus by the Court

Threats made against the deceased by two of the three persons indicted for his murder on the night before the homicide, not made in the presence of the third party, are admissible in evidence against the two who made them, as tending to show their animus against the deceased; and the third person indicted is not injured by such evidence, when the court instructs the jury that such threats are not evidence against such third party.
No error is committed in refusing to permit a party charged with an unlawful homicide to prove that he voluntarily surrendered to the officer, when the state had not undertaken to show that he evaded arrest.
The question whether the title to an act was broad enough to cover some of its sections is of no moment, when the sections of said act were subsequently embodied in the General Statutes of 1906.
Sectipn 3262, General Statutes of 1906, is not unconstitutional, because it excepts sheriffs and other police officers from its operation, as said exception or classification is based on a public necessity, and is not in conflict with any specific provision of the Constitution.
The statutes against carrying concealed weapons have no connection with section 20 of the Bill of Rights, which preserves ‘to the people the right to bear arms in defense of themselves and the lawful authority of the state.’
Since the adoption of sections 3262 and 3263 of the General Statutes of 1906, the carrying of concealed weapons is a breach of the peace which authorizes an arrest by an officer, without warrant; and section 3929 is broader, and gives an officer authority to arrest, without warrant, any one who, in the presence of such officer, violates any of the penal laws of this state, or of any municipality, and makes it the duty of such officer to arrest, without warrant, and take into custody any person whom such officer has reasonable ground to believe, and does believe, has committed any felony, or whom he finds in the act of committing any felony, or about to commit a felony, or engage in a fight or other breach of the peace.
Where a person fires a pistol in a village, behind a cold drink stand within 100 yards of an officer’s residence, it may fairly be said that the pistol was fired in the ‘presence’ of the officer, and is an offense, under section 3626, Gen. St. 1906, for which an officer may arrest the person firing the pistol, without warrant.
Requested instructions, not warranted by the evidence, are properly refused.

*2 **486 John E. & Julian Hartidge, of Jacksonville, and A. R. Logan, of St. Augustine, for plaintiffs in error.

Park Trammell, Atty. Gen., and C. O. Andrews, both of Tallahassee, for the State.

HOCKER, J.
Bascom Carlton, Dan Carlton, and Marion Carlton were indicted on the 25th of April, 1911, in the *3 circuit court of St. Johns county, for the murder of one Guy White on the 5th day of March of the same year. On the trial, Bascom Carlton was convicted of murder in the first degree, with recommendation to mercy, and Marion and Dan Carlton were convicted of murder in the second degree, and each of them sentenced to the state prison for life. The judgments are here for review on writ of error. Before discussing the assignments of error, the writer will endeavor to give a synopsis of the evidence.

On Saturday, the 4th of March, 1911, Bascom and Dan Carlton went from the neighborhood of Espanola to Hastings, in St. Johns county. They went on the East Coast Railroad. Their brother, Marion, went with them as far as Dinner Island, and there Marion left the train. At Hastings, Dan and Bascom figured around the barrooms considerably, bought and drank whisky, and one of them, probably Bascom, got into some trouble in a place where there was dancing by stepping on some one’s toe. Some disturbance occurred, which led to the arrest of Bascom and Dan. They gave bond, were released, and spent the night at a private house. They say that they were arrested just about midnight, when they were ready to take a train back to Espanola. They got on the train Sunday morning to go back to Espanola. At Dinner Island, they were joined **487 by Marion Carlton. A youth named Burney, who worked with Bascom near Espanola, also went to Hastings, and was on the train on Sunday morning. He was drunk, and had a pistol which Bascom says was his; he having left it in his room, where Burney got it. It was evident all these parties were drinking. The pistol which Burney had was taken from him by one of the parties and given to Marion or Dan, but finally *4 found its way to Marion. The defendants say that when Marion got off the train on Saturday at Dinner Island Bascom gave him his pistol, which Marion returned to him on Sunday, when he got on the train. It was proven that Bascom and Dan, on Saturday night at Hastings, made threats of killing Guy White and another man, Kelley, who had arrested them at Hastings. The defendants got off the train Sunday at Espanola about 12:30 o’clock. The evidence tends to prove that they hung around the depot for some time in the negro waiting room. There is some evidence that the agent requested Guy White, who was a deputy sheriff, to get them away from the depot. Marion and Dan went first from the depot to a vacant cool drink stand, about 100 yards from the depot. They say they went there to have a settlement of money matters, as Marion was to leave the next day. Some time after Marion and Dan went to the cool drink stand, Bascom joined them. The evidence tends to prove that while they were at this place Marion and Bascom indulged in threats about Guy White and another person; that they seemed to anticipate trouble with Guy White, the deputy sheriff, and expected to kill him. Then a pistol shot was fired by Marion, and Guy White, the deputy sheriff, hastended to the spot, calling upon one Snyder, who seems also to have been a deputy sheriff, and one Durrance to go with him. When Guy White reached the parties, he demanded who shot off the pistol. Marion answered that he did it, and he says he told White the pistol was accidentally fired. White demanded the pistol, and in trying to get it a short struggle ensued; but he finally got it, and them notified the three brothers they were all under arrest. It appears that Marion was boisterous and used threatening language, but that Dan counseled moderation and urged that there be no trouble. *5 Dan told White he had no pistol. No effort was there made to secure Bascom’s pistol. There was evidence from which the jury might have inferred that the pistol was fired off to attract the attention of White and bring him to the place, with the view of precipitating a difficulty with him, and of carrying out the threats that had been made.

After the brothers were put under arrest by White with the aid of a posse which he had called together, he undertook to take them to a jail or calaboose, which was some 50 years away. Espanola was a small settlement; the houses being some distance apart. On the way to the jail, Marion was obstreperous, and threatened to kill the whole of the arresters when he was turned loose. Handcuffs were put on him by Snyder, which White took off as soon as he reached the jail. The jail was a samll wooden building, with a passageway down one side, and three cells on the other, with doors opening on the passageway. The deputy sheriff, White, Snyder, and some of the posse escorted the arrested parties into the passageway; Bascom being the last of the brothers to enter. They arranged themselves along the passageway in front of the cell doors. Snyder had his pistol drawn. The evidence on the part of the state tends to prove that when the parties were all in the passageway, as above indicated, one of the posse, named Dorman, being next to Bascom, that White then said to Bascom he would have to search him to see if he had a gun or knife; that White then attempted to put his hand in Bascom’s pocket; and that as he did so Bascom drew his pistol and fired rapidly twice, killing both White and Snyder. Dorman seized the pistol in the hands of Bascom, and a struggle took place. The state’s witnesses say that both Dan and Marion seized Dorman, one choking him and the other holding his arm; but others present*6 came to Dorman’s help, with the result that he held onto the pistol. There was then a separation of the parties; the defendants leaving the scene, as well as the members of the posse.

The state’s witness Durrance says that when he went up to the cold drink stand to aid White, Marion was very ugly to him, saying to him and Snyder, who was with him: ‘You two sons of bitches, I am talking to Guy; if you got any word against me, say it, you bastards.’ He also says that when Marion got about halfway to the jail he said to the men who were guarding him: ‘You three sons of bitches, I will kill you if I ever got out of this. I know you.’ Durrance says he also heard Dan or Marion, he could not tell which, say, just as the shots were fired, ‘Kill all inside and outside.’ He also says he heard no cursing of Guy White, though Bascom and Marion protested against being arrested by him. Mr. Sabate, a deputy sheriff, who arrested Dan and Marion after the shooting on the night of March 5th, testified that they said to him ‘that when Bascom killed Mr. White, shot Mr. White, just previous to the shooting, when they were put in jail, that they knew he was going to shoot, and they stepped inside into one of the cells, and he did the shooting;’ and, again, that they said ‘they stepped into the cell one side to keep out of the way as it was of the shooting.’ Mr. Dean testified for the state that on the night of the killing he saw Dan at the witness’ camp, about a mile from Espanola. Dan came to his gate and called **488 him. The witness told him to come in and sit down, which he did. A fellow named Burney was with him. Dan said, ‘Well, I guess you heard what happened.’ Witness said: ‘I heard. I hope it is not so.’ Dan said, ‘Well, the Jew, Snyder, is killed.’ That Bascom killed him. He also said: ‘One thing I am sorry of, there was another damned long cracker in there. I am sorry they didn’t kill *7 him.’ Dan also said ‘he knowed the thing was going to happen, and stepped back one side out of the way.’ He said Bascom told him that if he ever got that much drop on Guy White he would kill him. He also said Dan was cutting ties for the witness.

The Carltons deny making the threats which the state alleged were made before the killing, and they deny saying the accusing things which the state’s witnesses say were made after the killing by Marion and Dan. They all say that when Bascom shot, White or some one had cried out, ‘Shoot the sons of bitches,’ or words of like import; and Bascom claims that he shot because he thought he was about to be shot himself. These statements are in conflict with the testimony of the state’s witnesses. The foregoing is a synopsis of the evidence.

It is difficult to discover from the brief of plaintiffs in error what particular assignments of error are most relied on. The first part of the brief seems to be devoted to a general discussion of assignments ‘under the tenth to the twentieth, inclusive.’ These assignments deal with charges given and instructions refused. Next assignments, fifth, sixth, seventh, and eighth, are grouped and discussed together in the brief, as is also done in the case of the nineteenth and twentieth assignments; and, lastly, the twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-seventh, twenty-eighth, and twenty-ninth are grouped, and the court is asked to apply the arguments made under the other assignments to these. Under these circumstances, we shall first discuss those assignments that are specifically argued.

[1] Several assignments question the propriety of permitting in evidence threats, alleged to have been made at Hastings on the night of March 4th by Bascom and Dan Carlton. We think this evidence was proper as to these *8 two as showing the animus of the parties. The court instructed the jury that declarations and admissions of the declarations were not evidence against such as were not present.

[2] Under the ninth assignment, it is contended that the court erred in not permitting Bascom Carlton to prove that he surrendered voluntarily to the officers. The state had not undertaken to show that he had fled, and no authority is shown to support this contention, and we know of none.

Assignment 10 questions a charge of the court, based on section 3263, General Statutes of 1906, making it a breach of the peace to carry concealed weapons, and authorizing an officer to arrest for said offense without a warrant.

[3] It is first contended that the original act of 1901, of which this section is a part, is unconstitutional, because its title was not broad enough. This is now of no moment, as the act is brought forward and re-enacted in several sections of the General Statutes of 1906.

[4][5] It is next contended that section 3262 is unconstitutional, because it excepts sheriffs and other police officers from its operation, and permits them to carry concealed weapons, which is denied to others. We are not referred to any special provision of our state Constitution which this statute is supposed to violate, and none occurs to us at this time. Apparently the exception or classification is based upon a public necessity growing out of the difficulties and hazards which sheriffs and other officers encounter in dealing with dangerous characters. These statutes against carrying concealed weapons have no connection with section 20 of the Bill of Rights, which preserves to the people the right ‘to bear arms in defense *9 of themselves and the lawful authority of the state.’ This section was intended to give the people the means of protecting themselves against oppression and public outrage, and was not designed as a shield for the individual man, who is prone to load his stomach with liquor and his pockets with revolvers or dynamite, and make of himself a dangerous nuisance to society. See the case of State v. Workman, 35 W. Va. 367, 14 S. E. 9, as reported in 14 L. R. A. 600, and important note; Presser v. State of Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615.

The eleventh assignment of error attacks a portion of the charge of the court defining a conspiracy. The contention is there was no evidence of a common design to murder Guy White. We think there were facts before the jury which save the charge from the general attack upon it, which was made. Their sufficiency was left by the court to the jury.

[6][7] The twelfth assignment is based on the refusal of the circuit judge to give an instruction to the effect that an officer was not justified in making an arrest without a warrant, when the person whom he arrests is not at the time in the presence of the arresting officer, committing a breach of the peace or criminal offense, or engaged in open violence by fighting or engaging in a fight, or about to escape after committing a felony.

It is alleged in the brief that this instruction is based on the case of Roberson v. State, 43 Fla. 156, 29 South. 535, 52 L. R. A. 751. Since this decision was made, the statute law has been changed by sections 3262 and 3263, General Statutes of 1906. The latter makes the carrying of a concealed **489 weapon a breach of the peace, and authorizes any officer to arrest for the offense without warrant. Section 3929 is broader, and gives an officer authority to *10 arrest, without warrant, any one who, in the presence of such officer, violates any of the penal laws of the state, or of any municipality, and makes it the duty of such officer to arrest, without warrant, and take into dustody any person whom such officer has reasonable ground to believe, and does believe, has committed any felony, or whom he finds in the act of committing any felony, or about to commit any felony, or engage in a fight or other breach of the peace. This section became law since the decision in Roberson v. State, supra.

Section 3626 is as follows: ‘Whoever discharges on any public highway or in any unincorporated village within three hundred years of any premises, any fire arms, without permission from the occupant of said premises, or in defense of life, limb or property, shall be punished,’ etc.

It may be fairly said that Marion Carlton fired his pistol in the presence of Guy White, the deputy sheriff. The firing was done within 100 yards of White’s residence, in the village of Espanola; and the only thing that prevented White from actually seeing the act of shooting was that Marion was behind the little shed, called a cold drink stand. Evidently White heard the shot and immediately repaired to the spot where it occurred.

At common law, sheriffs and other police officers, virtute officii, and all who aid them, are empowered by law to arrest, not only felons and those suspected of felony, but also persons guilty of a breach of the peace, or just suspicion thereof, such as nightwalkers and persons unduly armed. 2 Hale’s P. C. 85, 86. Hale gives weighty reason why peace officers should have these powers.

In Ramsey v. State, 92 Ga. 53, 17 S. E. 613, it is held that an officer may arrest, without warrant, for wife-beating, if he arrives at the scene during the progress*11 of or immediately after the beating; he being attracted thereto by the noise of the disturbance or the outcry of the woman. This was based on a section of the Georgia Code, authorizing an officer to arrest without warrant, if the offense is committed in his presence.

In the case of State v. McAfee, 107 N. C. 812, 12 S. E. 435, 10 L. R. A. 607, it is held that, ‘where the defendant struck his wife a blow with a stick in a public road, so near to the officer [a justice of the peace] that he could hear the sound made by the blow and the cries of the woman, though, on account of the darkness, he could not actually see the assault, it was such a breach of the peace in the presence of the officer as authorized him to arrest the assailant without a warrant.’ To the like effect are the decisions in the cases of Dilger v. Commonwealth, 88 Ky. 550, 11 S. W. 651; Hawkins v. Lutton, 95 Wis. 492, 70 N. W. 483, 60 Am. St. rep. 131, and note, discussing what constitutes a breach of the peace.

Under the facts of the instant case, we think it clear that Guy White was authorized to arrest the defendants Bascom and Marion Carlton and Dan also, if the facts were such as authorized him to believe there was a conspiracy to produce a breach of the peace in which they were all engaged.

[8] The thirteenth assignment of error is based on the refusal of the court to give an instruction to the effect that an officer, in making an arrest, is not authorized to use more force than is necessary. We do not think the evidence warranted this instruction. There is no evidence that Guy White used more force in arresting the defendants than was necessary. What we have already said disposes of a number of the assignments of error.

*12 The fifteenth assignment is based on the refusal of the court to instruct the jury that, under the law of Florida, a homicide is justifiable, when committed in the lawful defense of a brother. The difficulty with this instruction is that it assumes that Bascom Carlton shot White while White and Snyder were attempting to arrest Dan and Marion Carlton, and they were resisting an unlawful arrest. The evidence does not warrant such a hypothesis. The assignments based on the hypothesis that Guy White committed an unlawful arrest of the defendants, we do not think it necessary to consider. The facts seem to us to show a lawful arrest.

Several of the assignments of error question the correctness of the verdict as to each and all of the defendants. All of the Justices are of opinion that the evidence is sufficient to sustain the verdict as to Bascom Carlton. Chief Justice WHITFIELD, Justice SHACKLEFORD, and Justice COCKRELL are of opinion that there is sufficient evidence that Dan and Marion Carlton were present aiding and abetting in the murder of Guy White. On the sufficiency of the evidence to sustain the conviction as to Dan and Marion Carlton, Justice TAYLOR dissents, and the writer dissents as to Dan Carlton.

The judgment below is affirmed as to all the defendants.

Fla. 1912
CARLTON v. STATE
63 Fla. 1, 58 So. 486

City of Salina v. Blaksley
72 Kan. 230, 83 P. 619
Kan. 1905.
November 11, 1905

72 Kan. 230, 83 P. 619, 3 L.R.A.N.S. 168, 115 Am.St.Rep. 196

Supreme Court of Kansas.
CITY OF SALINA
v.
BLAKSLEY.
Nov. 11, 1905.

Syllabus by the Court.

Section 4 of the Bill of Rights, which provides that “the people have the right to bear arms for their defense and security,” is a limitation on legislative power to enact laws prohibiting the bearing of arms in the militia, or any other military organization provided for by law, but is not a limitation on legislative power to enact laws prohibiting and punishing the promiscuous carrying of arms or other deadly weapons.
[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Weapons, § 3.]

Appeal from District Court, Salina County; R. R. Rees, Judge.
James Blaksley was convicted of carrying a pistol within the city of Salina, and appeals. Affirmed.

David Ritchie, for appellant.

R. A. Lovitt, for appellee.

GREENE, J.
James Blaksley was convicted in the police court of the city of Salina, a city of the second class, of carrying a revolving pistol within the city while under the influence of intoxicating liquor. He appealed to the district court, where he was again convicted, and this proceeding is prosecuted to reverse the judgment of the latter court.

The question presented is the constitutionality of section 1003 of the General Statutes of 1901, which reads: “The council may prohibit and punish the carrying of fire arms or other deadly weapons, concealed or otherwise, and may arrest and imprison, fine or set at work all vagrants and persons found in said city without visible means of support, or some legitimate business.”

Section 4 of the Bill of Rights is as follows: “The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.” The contention is that this section of the Bill of Rights is a constitutional inhibition upon the power of the Legislature to prohibit the individual from having and carrying arms, and that section 1003 of the General Statutes of 1901 is an attempt to deprive him of the right guarantied by the Bill of Rights, and is therefore unconstitutional and void. The power of the Legislature to prohibit or regulate the carrying of deadly weapons has been the subject of much dispute in the courts. The views expressed in the decisions are not uniform, and the reasonings of the different courts vary. It has, however, been generally held that the Legislatures can regulate the mode of carrying deadly weapons, provided they are not such as are ordinarily used in civilized warfare. To this view, there is a notable exception in the early case of Bliss v. Commonwealth, 2 Litt. (Ky.) 90, 13 Am. Dec. 251, where it was held, under a constitutional provision similar to ours, that the act of the Legislature prohibiting the carrying of concealed deadly weapons was void, and that the right of the citizen to own and carry arms was protected by the Constitution, and could not be taken away or regulated. While this decision has frequently been referred to by the courts of other states, it has never been followed. The same principle was announced in Idaho in re Brickey, 8 Idaho, 597, 70 Pac. 609, 101 Am. St. Rep. 215, but no reference is made to Bliss v. Commonwealth, nor to any other authority in support of the decision. In view of the disagreements in the reasonings of the different courts by which they reached conflicting conclusions, we prefer to treat the question as an original one.

The provision in section 4 of the Bill of Rights “that the people have the right to bear arms for their defense and security” refers to the people as a collective body. It was the safety and security of society that was being considered when this provision was put into our Constitution. It is followed immediately by the declaration that standing armies in time of peace are dangerous to liberty and should not be tolerated. and that “the military shall be in strict subordination to the civil power.” It deals exclusively with the military. Individual rights are not considered in this section. The manner in which the people shall exercise this right of bearing arms for the defense and security of the people is found in article 8 of the Constitution, which authorizes the organizing, equipping, and disciplining of the militia, which shall be composed of “able-bodied male citizens between the ages of twenty-one and forty-five years. ***” The militia is essentially the people’s army, and their defense and security in time of peace. There are no other provisions made for the military protection and security of the people in time of peace. In the absence of constitutional or legislative authority, no person has the right to assume such duty. In some of the states where it has been held, under similar provisions, that the citizen has the right preserved by the Constitution to carry such arms as are ordinarily used in civilized warfare, it is placed on the ground that it was intended that the people would thereby become accustomed to handling and using such arms, so that in case of an emergency they would be more or less prepared for the duties of a soldier. The weakness of this argument lies in the fact that in nearly every state in the Union there are provisions for organizing and drilling state militia in sufficient numbers to meet any such emergency.

That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Here, also, the right of the people to keep and bear arms for their security is preserved, and the manner of bearing them for such purpose is clearly indicated to be as a member of a well-regulated militia, or some other military organization provided for by law. Mr. Bishop, in his work on Statutory Crimes, in treating of this provision, which is found in almost every state Constitution, says, in section 793: “In reason, the keeping and bearing of arms has reference only to war and possibly also to insurrections wherein the forms of war are, as far as practicable observed.” *621 Commonwealth v. Murphy (Mass.) 44 N. E. 138, 32 L. R. A. 606, strongly supports the position we have taken. The defendant was convicted of being a member of an independent organization which was drilling and parading with guns. The guns, however, had been intentionally made so defective as to be incapable of being discharged. The prosecution was had under a statute which provided that: “No body of men whatsoever, other than the regularly organized corps of the militia [and certain other designated organizations], shall associate themselves together at any time as a company or organization, for drill or parade with fire-arms, or maintain an armory in any city or town of the commonwealth. ***”

On the trial the defendant invoked the provisions of the Massachusetts Bill of Rights, “the people have a right to keep and bear arms for the common defense,” in support of his contention that he had the right to bear arms. The court said: “This view cannot be supported. The right to keep and bear arms for the common defense does not include the right to associate together as a military organization, or to drill and parade with arms in cities or towns, unless authorized to do so by law. This is a matter affecting the public security, quiet, and good order, and it is within the police power of the Legislature to regulate the bearing of arms, so as to forbid such unauthorized drills and parades.” The defendant was not a member of an organized militia, nor of any other military organization provided for by law, and was therefore not within the provision of the Bill of Rights, and was not protected by its terms.

The judgment is affirmed. All the Justices concurring.

Kan. 1905.
CITY OF SALINA v. BLAKSLEY.
72 Kan. 230, 83 P. 619, 3 L.R.A.N.S. 168, 115 Am.St.Rep. 196

People v. Brown
253 Mich. 537, 235 N.W. 245
Mi. 1931
February 27, 1931

253 Mich. 537, 235 N.W. 245, 82 A.L.R. 341

Supreme Court of Michigan.
PEOPLE
v.
BROWN.
No. 144.
Feb. 27, 1931

Error to Circuit Court, Jackson County; John Simpson, Judge.
Bernard Brown was convicted of carrying a dangerous weapon and of possessing and having in possession a blackjack, and sentenced as a fourth offender as on a plea of guilty, and he brings error.
Conviction by jury affirmed, and supplemental procedure and sentence reversed, and cause remanded.
Argued before the Entire Bench.

Frank L. Blackman, of Jackson, for appellant.

H. D. Boardman, Pros. Atty., and Owen Dudley, Asst. Pros. Atty., both of Jackson, for the People.

FEAD, J.
Defendant was convicted on both counts of an information charging him (a) with carrying a dangerous weapon, a blackjack, in an automobile, Comp. Laws 1929, § 16753, and (b) with possessing and having in possession a blackjack contrary to the provisions of section 3, Act No. 206, Pub. Acts 1929, Comp. Laws 1929, § 16751. He and another man had the blackjack and a rifle in an automobile. Supplemental information was filed, and, as on plea of guilty, he was convicted of being a fourth offender and sentenced to life imprisonment.

**246 Defendant contends that the statutes under which he was convicted are invalid as contravening section 5, art. 2, of the State Constitution, which reads: ‘Sec. 5. Every person has a right to bear arms for the defense of himself and the state.’

The penalty for the violation of each statute is the same. Section 16751 includes the offense charged as under section 16753. If the former is constitutional, and latter must be, if and in so far as it is applicable to the weapon herein involved.

*539 Section 16751 reads in part:

‘Sec. 3. It shall be unlawful within this state to manufacture, sell, offer for sale or possess any machine gun or firearm which can be fired more than sixteen (16) times without reloading or any muffler, silencer, or device for deadening or muffling the sound of a discharged firearm, or any bomb, or bomb shell, blackjack, slung shot, billy, metallic knuckles, sand club, sand bag, or bludgeon or any gas ejecting device, weapon, cartridge, container, or contrivance designed or equipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact.

The statute applies to all persons except peace officers, certain manufacturers, military and licensed persons, and contains no limitations of place, time, purpose, or use. It prohibits the possession of the enumerated weapons by any one, other than an excepted person, in private as well as in public, in the home or elsewhere, and whatever the purpose and contemplated use.

It is generally recognized that the constitutional declaration, in both Federal and State Constitutions, of the right to bear arms, had its origin in the fear of the American colonists of a standing army and its use to oppress the people, and in their attachment to a militia composed of all able-bodied men. Probably the necessity of self-protection in a frontier society also was a factor.

[1] Some courts have been so impressed with the historical background that they have held that the constitutional protection covers the bearing of such arms only as are a customary part of the equipment of a militiaman; and in Salina v. Blaksley, 72 Kan. 230, 83 P. 619, *540 3 L. R. A. (N. S.) 168, 115 Am. St. Rep. 196, 7 Ann. Cas. 925, it was decided that the Legislature may prohibit the bearing of arms anywhere except in a military organization provided for by law It is interesting to note that pistols and revolvers seem to have given these courts trouble in the application of the militia test. On the other hand, some courts, for various reasons, have extended the protection to weapons of all descriptions. The authorities cannot be reconciled except in respect of the proposition that, regardless of the basis of the right to bear arms, the state, nevertheless, has the police power to reasonably regulate it. 28 Harvard Law Review, 473; Aymette v. State, 2 Humph. (21 Tenn.) 154; Nunn v. State, 1 Ga. 243; Ex parte Thomas, 1 Okl. Cr. 210, 97 P. 260, 20 L. R. A. (N. S.) 1007; 40 Cyc. p. 853; State v. Workman, 35 W. Va. 367, 14 S. E. 9, 14 L. R. A. 600; Commonwealth v. Murphy, 166 Mass. 171, 44 N. E. 138, 32 L. R. A. 606; City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 3 L. R. A. (N. S.) 168, 115 Am. St. Rep. 196, 7 Ann. Cas. 925; Ex parte Thomas, 21 Okl. 770, 97 P. 260, 20 L. R. A. (N. S.) 1007, 17 Ann. Cas. 566; Strickland v. State, 137 Ga. 1, 72 S. E. 260, 36 L. R. A. (N. S.) 115, Ann. Cas. 1913B, 323; State v. Keet, 269 Mo. 206, 190 S. W. 573, L. R. A. 1917C, 60; and notes.

When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and composed of all able-bodied male citizens of Michigan and those of foreign birth who have declared their intention to become citizens, Comp. Laws 1929, § 629, is practically extinct and has been superseded by the National Guard and reserve organizations. If called to service, the arms are furnished by the state. Comp. Laws 1929, § 633. In times of peace, the militia, as such, is unarmed and the historical test would render the constitutional provision lifeless.

The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to ‘every person’ to bear arms for the ‘defense of himself’ as well as of the state. This *541 includes the right of a foreigner to possess a revolver for the legitimate defense of his person and property, subject, however, to the valid exercise of the police power of the state to regulate the carrying of firearms. People v. Zerillo, 219 Mich. 635, 189 N. W. 927, 24 A. L. R. 1115.

Some arms, although they have a valid use for the protection of the state by organized and instructed soldiery in times of war or riot, are too dangerous to be kept in a settled community by individuals, and, in times of peace, find their use by bands of criminals and have legitimate employment only by guards and police. Some weapons are adapted and recognized by the common opinion of good citizens as proper for private defense of person and property. Others are the peculiar tools of the criminal. The police power of the state to preserve public safety and peace and to regulate the bearing of arms cannot fairly be restricted to the mere establishment of conditions under which all sorts of weapons may be privately possessed, but it may take account of the character and ordinary use of weapons and interdict those whose customary employment by individuals **247 is to violate the law. The power is, of course, subject to the limitation that its exercise be reasonable, and it cannot constitutionally result in the prohibition of the possession of those arms which, by the common opinion and usage of law-abiding people, are proper and legitimate to be kept upon private premises for the protection of person and property.

We find no decisions in point upon an identical constitutional provision, but in People v. Persce, 204 N. Y. 397, 97 N. E. 877, 879, it was held that the Legislature may prohibit the possession of ‘instruments [a slung shot] which are ordinarily used for criminal and improper purposes and which *542 are not amongst those ordinary legitimate weapons of defense and protection which are contemplated by the Constitution and the Bill of Rights.’ See, also, People v. Warden, 154 App. Div. 413, 139 N. Y. S. 277; Andrews v. State, 3 Heisk. (50 Tenn.) 165, 8 Am. Rep. 8.

And in State v. Duke, 42 Tex. 455, the court said: ‘The arms which every person is secured the right to keep and bear (in the defense of himself or the State, subject to legislative regulation), must be such arms as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense, as well as such as are proper for the defense of the State.’

The list of weapons in section 16751, supra, is significant and demonstrates a definite intention of the Legislature to protest society from a recognized menace. It does not include ordinary guns, swords, revolvers, or other weapons usually relied upon by good citizens for defense or pleasure. It is a partial inventory of the arsenal of the ‘public enemy,’ the ‘gangster.’ It describes some of the particular weapons with which he wars on the state and reddens his murderous trail. The blackjack is properly included in the list of outlawed weapons. As defined in Encyclopaedia Britannica, it is ‘a bludgeon like weapon consisting of a lead slug attached to a leather thong. The more carefully constructed black jacks contain a spring within the handle which serves to ease the effect of the impact upon the wrist of the one who wields the weapon. The black jack has the reputation of being a characteristic weapon of urban gangsters and rowdies.’

[2] The statute does not infringe upon the legitimate right of personal or public defense, but is within the *543 reasonable and constitutional exercise of the police power of the state to curb crime.

Defendant challenged the supplemental procedure, charging him with being a fourth offender, on motion for a new trial, on the ground that no plea of guilty had been entered by him and no trial had, as shown by the records of the court.

[3] The statute, Comp. Laws 1929, § 17341, requires (a) the court shall inform defendant of the allegations contained in the supplemental information, and (b) of his right to be tried as to the truth thereof according to law, (c) that defendant be required to say whether he is the same person as charged in the information, and (d) that he plead guilty or be convicted, before he may be sentenced under it. The charge of habitual offender includes both the identity of the person alleged to have committed other felonies and the fact of his prior convictions.

The record of arraignment was: ‘Bernard Brown, defendant in this cause, having been duly arrigned at the bar in open court on a supplemental information charging fourth felony and the said information having been read to the defendant and the said defendant having been asked if he is the same person mentioned in the said information, and acknowledging that he is the same person, it is ordered now here that the said plea be, and the same is hereby accepted.’

The record of sentence reads: ‘Bernard Brown, the defendant in this cause, having been upon his plea of guilty convicted of the crime of fourth felony as appears by the record thereof,’ etc.

[4] The statement of plea of guilty in the entry of sentence refers back to the record as made. The *544 record as made does not show a compliance with the statutory duty of the court to inform the defendant of his rights nor a plea of guilty to the charge. It shows no more than that defendant acknowledged he was the person charged in the supplemental information, not that he admitted being the person charged in the previous offenses alleged therein nor that he had been convicted thereof. In People v. Palm, 245 Mich. 396, 223 N. W. 67, 68, the situation was different, as the record there recited that the defendant had pleaded guilty and that ‘said plea of guilty was voluntarily and understandingly tendered.’ It was not without some hesitation that the record was held sufficient in that case, as not affirmatively showing the statute had not been complied with. The ruling should not be extended. In this case, the record fails to show a plea of guilty covering the elements of the offense.

We appreciate that this ruling may seem technical and, in the instant case, may have no greater result than a retreating of formal ground. But the practice as outlined in the statute affords such opportunity for misunderstanding by a defendant, unless its effect is clearly explained to him, and the consequences of conviction of being a habitual offender are so serious that the procedure should be strictly pursued and the record of the court should show, in essentials at least, its observance.

The conviction by the jury is affirmed. The supplemental procedure and sentence are reversed, and the cause remanded to the circuit **248 court to pass sentence, without prejudice to such renewal of proceedings under the habitual criminal law as may be presented to it.

BUTZEL, C. J., and CLARK, McDONALD, POTTER, SHARPE, NORTH, and WIEST, JJ., concur.

Mi. 1931
PEOPLE v. BROWN
253 Mich. 537, 235 N.W. 245, 82 A.L.R. 341

Legislative Branch

Legislative

There is a legal doctrine named “void for vagueness”. Examples of the application of this doctrine can be found here, but in essence it states that “All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.” [Rector, Etc., Of Holy Trinity Church v. United States, 143 U.S. 457; 12 S.Ct. 511 (1892)]

You may ask yourselves what it is that I am referring to which invokes the doctrine, void for vagueness? I have constructed an Article for the Illinois Constitution which addresses the issue of legislative clarity, authority, and organization. I don’t know how many of you have taken the time to peruse the Illinois Compiled Statutes, but I honestly doubt there is “sensible construction” which is discernable to a man of “common intelligence”.  For example, a search of the Illinois Vehicle Code for the word “resident”, produces this result:

(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.)

Another example of “Persons” as defined in “The statute on statutes” reads:

(5 ILCS 70/1.05) (from Ch. 1, par. 1006)
Sec. 1.05. “Person” or “persons” as well as all words referring to or importing persons, may extend and be applied to bodies politic and corporate as well as individuals.
(Source: Laws 1945, p. 1717.)

Notice how there are three different references for state, State, and State of Illinois. If you are a “natural person” who “resides” in a lowercase state, then you are deemed to also “reside” in “this State”. In other words, it may be saying, “If you live here, you shall be deemed to live Here.” However, subsections (b) and (c) seem able to say exactly what they  mean. If a copartnership is located in the State of Illinois, then such shall be deemed to be a resident of the State of Illinois. Is there a difference between state and State? How come subsection (a) doesn’t say, “Every natural peson who resides in the State of Illinois shall be deemed a resident of the State of Illinois?” If the State of Illinois apparently does not pertain to “natural persons”, and state or State so, what is a state?

(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.)

Is this definition meaning to say that a state is a state, as well as a territory or possession of the United States…., or is it saying that a state is a state of the United States, or a territory of the United States, or a possession of the United States…..? Is Illinois a state of the United States? No. The United States is ONLY the federal government comprised of the area of Washington, D.C., as well as federal territories, possessions, and enclaves located within the states. The union of 50 states is named the united States of America. The federal government is the government of the united States. The word “of” means owing its source or origination to, deriving its power or origin to. Illinois is not a consequence of the federal government, the federal government was created by an act between the states. When the word “United States” is used it applies only to the federal government and not the state governments. This is why murder is not identified as a crime in the United States Code. Murder of a particular officer of the United States within United States or federal jurisdiction is a crime under the United States Code, but murder of a free man or woman is not a crime cognizable under federal law. Let’s look at the “Commonwealth of Puerto Rico” and “possession of the United States”. If we look to the United States Codes, we can find one definition which is illustrating:

TITLE 26 > Subtitle F > CHAPTER 79 > § 7701 (d) Commonwealth of Puerto Rico
Where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, references in this title to possessions of the United States shall be treated as also referring to the Commonwealth of Puerto Rico.

Here are a few other examples of definitions found in the United States Code:

(9) United States
The term “United States” when used in a geographical sense includes only the States and the District of Columbia.

(10) State
The term “State”shall be construed to include the District of Columbia, where such construction is necessary to carry out provisions of this title.

(c) Includes and including
The terms “includes” and “including” when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.

(30) United States person
The term “United States person” means—
(A) a citizen or resident of the United States,
(B) a domestic partnership,
(C) a domestic corporation,
(D) any estate (other than a foreign estate, within the meaning of paragraph (31)), and
(E) any trust if—
(i) a court within the United States is able to exercise primary supervision over the administration of the trust, and
(ii) one or more United States persons have the authority to control all substantial decisions of the trust.

Another example states:  (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.)

What this definition is saying is that a State, when applied to different parts of the United States… What are the different parts of the United States? Well, the District of Columbia, Guam, Puerto Rico, the Virgin Islands, the Northern Mariana Trust, possessions and enclaves located within the several states which have been ceded to the United States government for carrying into effect the enumerated powers found in the Constitution of the United States of America. The parts of the United States I just listed are what is being referred to in “several territories”. So, the word State, when applied to the several territories, and the District of Columbia, and enclaves, and possessions, may be construed to include the District of Columbia and the several territories. You should pay particular attention to what is not being said, as well as what is being said. It does NOT say that, “State”, when applied to the several states, or the 50 states….. which is what would be required for that definition to apply to Illinois, or any of the other 49 states.

In the pursuit of thoroughness, I feel it necessary to also investigate the definition of “person”. I do this for obvious reasons. You may be thinking, “Who doesn’t know what a person is?” Well, possibly many of you. We saw an example of “natural person” above, but what is a person generally? Here is one example:

(h) “Person” includes any natural person, partnership, association, joint venture, trust, governmental entity, public or private corporation, health facility or other legal entity. (410 ILCS 305/3) (from Ch. 111 1/2, par. 7303)
(Source: P.A. 85‑677; 85‑679; 93‑482, eff. 8‑8‑03.)

I highlight “other legal entity” because people are NOT legal entities. Legal entities exist by way of acts of law, as in corporations or other legally formed bodies. Used in the context above, the phrase “natural person” applies to a man or woman who has taken a position involving some form of legal duty, thereby being required to act in the execution of that office, position, or duty. For a good example of the multiple uses of “person”, read this case here. After reading that case, read the information on this site for an interesting understanding of what a person, resident, individual…and so forth mean when used in statutes.

“Very interesting” you may say. So what? If you are satisfied with the role government has cast you in then no problem. However, if you would like to go back to the “crazy times” where people did not have to check the statutes, codes, and regulations before doing many of the day-to-day things of life without worrying if you need a permit, license, or may have to produce papers along the way, then I recommend a Constitutional article that avoids all of the aforegoing confusion and word-play. This will not prevent those who choose to adopt state-directed personas, but for the rest who prefer a simpler, freer life, I recommend the following language for a Constitutional Article addressing Legislative Clarity, Authority, and Organization. This article attempts to address the most common pitfalls of statutory construction that lends misinterpretation and misperception to many readings of the statutes.

Legislative Clarity, Authority, and Organization

All the laws of Illinois, which are general in nature, and passed by the Legislature, and which may apply to the People, shall be written only in the common language of the day, and shall not define any word(s) or phrases in any way whatsoever except in cases where such word(s) or phrases import more than one meaning, thus necessitating definition for the sake of clarity. Such laws shall state also the specific intent of the Legislature, the specific objects of the legislation, and the authority being exercised pursuant to the specific provision found in the Illinois Constitution.

The laws of Illinois shall be arranged according to the nature of the law and be clearly identified as being either mala in se, mala prohibita, administrative, contractual, admiralty/maritime, chancery, or equity. any law originating under any such nature shall declare its nature, as well as the intent of the legislature.

Laws which are mala in se shall be identified, charged, and prosecuted in accordance with the Common Law.

Laws which are mala prohibita shall find their authority only in the statutes, and be used to identify a crime, correct an existing deficiency, amend an existing deficiency, or otherwise expand the applicability of to address changing times, as governed by the Common Law.

Any form, contract, agreement, license, or other act finding its origin in any law, statute, code, regulation, rule, or ordinance shall clearly state and specify which jurisdictional nexus attaches as a result of any People(s) engaging in such.

All the laws of Illinois shall use the following words in accordance only with the following reserved definitions.

People or Peoples – Any and all natural-born, flesh and blood, male or female, sentient beings in their natural state, and claiming no political status other than Citizenship, which may be claimed or exercised as a result of their birth within a political jurisdiction. Citizen or citizen shall originate as a result of sovereign birthright or privilege of political status; the former being Capitalized, and the latter being lower-case. The word inhabitant may be used interchangeably with the words People or Peoples.

Person or Persons – Any and all incorporeal, fictitious, artificial, legal entities which find their origin in an act, or under the authority of the general government, the legislative, administrative, or judicial branch of Illinois. These words may also apply to People who have claimed a political status such as citizen. When used to identify People claiming the political status of citizen, the words person or persons shall be lower-case, and when referring to Sovereign People, shall be capitalized.

Individual or Individuals – Shall be used only to identify a singular People or Person, used immediately preceding People or Person, and only when the words Peoples or Persons would not provide clear definition or specificity.

Resident (all derivatives and tenses) – Shall apply only to incorporeal, fictitious, artificial, legal entities.

Domicile – Shall apply only to People or Peoples. The word Inhabit may be used interchangeably with domicile.

Research and Resources

Research and Resources

Research, commentary and analysis of Illinois Constitutions past and present. (This page is a work-in-progress. Some of the files can be quite large. Please be patient while information is compiled and uploaded to the site.)

Background

I would like to recommend this pamphlet written by the American Bar Association when it was only 50 years old. Even though I do not agree with much of what the Bar Association stands for today, this pamphlet was written when the concepts of individual liberty, state sovereignty, limited government, and a rule of law were still popular and fundamental to the scheme of American government. I suggest you read it carefully; it makes some good points. Remember that it was written by lawyers with the intent of educating people on their roles as citizens. I was skeptical at first, but found the work to be substantive and fairly honest. You won’t find the Bar Association stating such things in our current political climate, but in 1925 these things were just as much a concern and valid as they are today; today even more so. The piece foretells the future of what was to come, what has come to pass, and how it happened.

This piece is called “Understanding the Illinois Constitution”, 2001 Edition, put together by the Illinois Bar Foundation. I discuss this in detail on my Analysis and Commentary page, but nevertheless it is a dumbded-down, pretentious and sophomoric work that is not without its adequate historical commentary. An astute student of law, rights, or constitutions should be able to pick this apart rather easily. It is insightful as a reference to how the oligarchy thinks and dissembles in preservation of their class and status.

Research Materials

Annotated Constitutional Convention of Illinois 1870 (7 parts)  THESE FILES ARE LARGE AND MAY TAKE SOME TIME TO DOWNLOAD

Part 1 Part 2 Part 3 Part 4 Part 5 Part 6 Part 7

Lists of Suggestions for Constitutional Change Together With Texts of Constitutions of Illinois (1919)

This was prepared by for the 1919 Constitutional Convention convened for possibly amending the 1870 Constitution. Even though the convention did not produce a new constitution (it was rejected by the voters) it does a good job of reviewing all the prior constitutions. The information is relevant in explaining the state of the constitution up to the 1870 revision.

Part 1 Part 2 Part 3 Part 4

Constitutional Development in Illinois  Second Edition.

This was prepared  as a guide for the voters in considering a possible constitution by the 1919 Constitutional Convention.

History of Constitutional Conventions in Illinois

Due Process of Law in Relation to Statutory Uncertainty and Constructive Offenses, Giving Much Needed Enlightenment to Legislators, Bar and Bench

This was written by a Lawyer named Theodore Schroeder in 1908 in cooperation with the Free Speech League. The piece deals with mischief arising from misconstruction of law and statutory uncertainty. It is an honest and educational piece that discusses the true nature of law. Highly recommended for fundamental understanding of what “law” actually is, and is not.

Due Process of Law in Relation to Statutory Uncertainty and Constructive Offenses

Record of Proceedings, Sixth Illinois Constitutional Convention

This is an excellent resource for seeing what went into the most recent Illinois Constitution. I’m sorry they did not include the committee proceedings because that is where much of the meat would be regarding the final version of the articles. Nevertheless, you will be able to see who was involved in the various committees, what associations and parties were allowed to address the convention on different issues, and what influences eventually won out in crafting the final versions of the articles. This file is large (174MB), and in Adobe PDF format. It is worth the time to peruse, particularly the Bill of Rights. Definitely a good, comprehensive, and educational resource on what goes into a constitutional convention, and how politics managed to infiltrate the minds of the people creating our organic law. Other good resources of information from the Legislative Research Unit can be downloaded from their site.

Record of Proceedings, Sixth Illinois Constitutional Convention

Con-Con Issues for the Illinois Constitutional Convention. Papers prepared by the Constitution Research Group. Samuel K. Grove, Director, Victoria Ranney, Editor. University of Illinois Press.

This book was written to study the possible facing the Constitutional Convention of 1969. There is good, albeit misleading, information that dilutes or avoids the true nature of sovereignty and limited government. I am hoping to annotate this work, but time is at a premium. A good read if you’re looking for perspective on what government believes to be important issues; as well as how they interpret our constitution. This file is in Adobe PDF format and is 9MB in size.

Con-Con – Issues for the Illinois Constitutional Convention.

The Illinois Constitution, theory of government in general and a "sovereign people".

The Illinois Constitution, theory of government in general and a “sovereign people”.

Let me begin by stating that I do affirm to being somewhat of a hypocrite. Here I am, taking much time and effort to construct a site with information to educate people about the theory regarding our system of state government; yet I do so reluctantly because it is the in-application of that theory, and the ongoing misperception that our present government is a manifestation of the supreme will of a sovereign people, which has begotten the lie before us, which is nothing less than a metastasizing police state. I hate to say that we, being a sovereign people, could not be further from the truth. What we have before us today, both as a society and as a government, is a result of our own self-aggrandizement and megalomaniacal beliefs that we are both free and self-governing. I ask myself how a People can cite, quote, defend and rely upon a document that many have never seen, read, nor understand. It hasn’t been until fairly recently that I have come to understand, through exhaustive study, just what goes in to a constitution, as well as the convention creating such, and the application and interpretation of the different branches of government. What I have discovered is that people are not disposed to interpret the constitution, but rather government assumes the authority to interpret the constitution. The people lie dormant, ignorant, and uninterested.

I will save many of the details framing my argument for other pages that provide proper context, but my argument is based upon some very simple precepts that, if taken at face value, give rise to serious questions about the lawfulness, propriety, efficacy, applicability and authority of the government that has been created by some. I say that the constitution was written by a few, posed to the many, allowed to be voted upon by the select, and imposed upon the consenting. A few questions should come to mind when someone spews ideological platitudes about the constitution.  First, who wrote the constitution; who voted to give any delegates that authority; who voted to ratify or reject the proposed constitution; who was given permission pursuant to that constitution to vote for the people who would hold office and pass legislation imposed upon the people; who gave their consent to be bound by that document and where does that consent exist for all to see?

If one is to be honest with themselves then these questions should not be easily dismissed. I would welcome a detailed answer on any of the issues presented. The conundrum presented arises from a reading of the Declaration of Independence where it says, …”governments are instituted amongst men, deriving their just powers from the consent of the governed.” Since it can be said that a constitution is a document outlining the repository of power under which a government may justly act, from where does the consent of those who deposit their power exist? How does one consent, through the constitution, and what of those who do not consent?

Discussions on the oath for serving as a delegate to the Constitutional Convention of 1870.

There was some discussion on whether there needed to be an oath at all. Some believed an oath was necessary, as it may include supporting the Constitution of the United States and the State of Illinois, while others thought the phrase “and of the State of Illinois” superfluous and unnecessary. Some of the reasoning being, how could one support something, abiding by its rules, ensuing legislation and boundaries in toto; while at the same time possibly finding fault with those provisions and seeking to revise, alter, amend or abolish those provisions? If one swears to uphold the Constitution of the State of Illinois, are they not also swearing to uphold any legislation or statutes that are not inharmonious as well? Are not constitutional laws an extension of the constitution; expounded upon and specifically applied through legislative authority? Is it only a cursory understanding of the Constitution of the State of Illinois which is needed, or a broad and exhaustive understanding of the positive law and statutes, as well as judicial interpretations, that is required to adhere to such an oath? Has every law or statute been challenged on constitutional grounds? Has every judicial interpretation that supports some laws on a constitutional basis, despite how repugnant or contrary to the reason or will of the People such may seem, been examined for error or mischief? If not, then how can this body, both collectively and severally, take and be bound by an oath to support that which they are not aware or do not fully understand? Will an oath also be required for each delegate to swear that they possess the knowledge and wisdom to make such interpretations? If so, then I wish to witness and then examine the first who will accept such responsibility.

The delegation, as it sits in assembly, is a manifestation of the legislature through their statutory exercise. However, from what authority did the original convention of 1818 derive its power? There were no statutes; there was no legislature to bind the delegates to creating something other than what sprung from their free-will or reason in crafting a document for the sole purpose of creating a defined, enumerated government for protecting their rights, property and liberty. That original body acted of its own volition with no oversight, save for that of the People who would vote on the fruits of that convention. If the Constitution is the organic law of the State, then how can a legislature, statute, or oath bind the delegates to anything other than that what is truly the giver of power, the People? I believe no oath is required. Nevertheless, if an oath is to be demanded by the majority of the delegation, then an oath to the People, represented by the delegation assembled, and seeking to craft a document to create a state government; limited in scope, and enumerated in power, deriving such from the consent of the governed and amenable to any of abuse of such power being subject to the reserved rights of the People to withdraw their consent immediately upon any perceived abuse of the delegated powers or a violation of individual rights. An oath, that considers first, the natural, unalienable and innumerable rights of the individual People; and second, the civil and political rights of the Citizen.

I find it contradictory to pledge any oath to the Constitution of the United States. To take such an oath requires an understanding; but first, an interpretation of that document. The courts of this land cannot settle on the meaning of the different provisions of the Constitution given their varied and differing interpretations. Until the Supreme Court of the United States makes the final determination, that is still only binding on the courts and not the legislative or executive, there will be as many interpretations of the Constitution as there are men who will read it. It is difficult to believe that when taking such an oath it is understood by all that what Ithey believe the Constitution to mean is the same as any other delegates understanding. The Constitution of the Unites States is not subject to interpretation by the federal government, since it is the People who crafted it and the States who are bound by it. How can a document that breathes life into a political body then be examined, interpreted, and applied by the very thing it creates? The federal government exists secondarily, and subordinate to, the several states. It is the central deposition of limited and enumerated power for achieving specific and limited ends. All other power remains with the People or their State. The delegates of the Convention, not able to fully understand the meaning of the United Stated Constitution since they are not the ones who wrote it, can only be concerned with deciding how much of the People’s sovereignty may be considered to be delegated to the State for effecting the safety and happiness of the Citizens. As long as the laws of the State are not out of harmony with the laws of the United States, notwithstanding the reserved powers through the ninth and tenth amendments, the power of the People to do what they will is limitless. With the increasing encroachment of federal power into the states and the dilution of state sovereignty through “necessary and proper” and “commerce clause” misapplication, we could craft a constitution that simply states, “We are a totalitarian outcropping of federal authority” and be in perfect harmony with the United States Constitution.

What's the Point?

What is a constitution and why do we need one? Let’s take it a step further and discuss first who We are. Without We, there is no constitution. We are our own masters. We are the People. The People are Sovereign. Sovereignty is an important word. It is important that you understand the idea of sovereignty.

Sovereignty is the closest we can get to being kings and queens. Sovereignty used to be equated with being bestowed the divine providence to rule over others. On earth, there is nothing more authoritarian or absolute than sovereignty. Sovereignty is absolute, it is supreme, and it cannot be taken away. Sovereignty must be viewed as being in relation to something else. Royalty used to be considered sovereign. They were sovereign in relation to their subjects. All royalty was sovereign unto themselves, and therefore none above the other. Only in relation to their subjects.

The founding fathers took the idea of sovereignty and applied it to the People. Since tyranny and despotism could be exercised by one man, a sovereign king, they felt it best to recognize People as being the true sovereigns; each in their own individual capacity and equal as in relation to each other. No man would rule over another. Therefore, every individual would be their own sovereign; with absolute control and authority over their own life; and respecting the like sovereignty of their fellow men.

There isn’t much talk about sovereignty these days. The word has been relegated to the same cluttered drawer where words like liberty, tyranny, despotism, and freedom are kept. They are taken out from time to time and curiously inspected; often evoking faded notions of their invocation during some long-forgotten civics lesson in high school; but are eventually tossed back into the junk drawer in exchange for more germane and contemporary words like necessity, civil rights, privileges and benefits. This has been accomplished by design through our government schools and the incremental disseverment of the People’s sovereignty. We need to reeducate our children with the fundamentals of that notion of being individually supreme.

We will sometimes hear sovereignty mentioned when the government is asserting its sovereignty. Government claims to be immune from accountability for its actions because of sovereign immunity. This means that government claims to be immune from any responsibility for wrongs it may cause because it is above being accountable to its subjects. Does government have sovereignty? Yes. It has a limited amount of sovereignty that came from the People, in bestowing some of their sovereignty upon the government, to allow it to act in accordance with the People’s wishes as defined in their constitution: and only then in providing enough immunity so as to protect the People’s individual sovereignty. Government’s sovereignty is not absolute, plenary, or inherent. The People have given it, and the People can take it away. The People possess what is more often referred to as “popular sovereignty”. They give government as much sovereign immunity as it needs to protect the People, but not for the government to protect itself against the People.

Eventually, we would have had a land with a large number of sovereign people living amongst themselves and exercising their rights unencumbered by any authority. However, man being the imperfect being that he is, sought to rule his fellow man despite whatever sovereignty they may possess; and collectively people established rules and laws as well as governing institutions needed to carry out these laws. Likewise, when governing institutions, obviously occupied by imperfect people, assumed too much authority, people sought then to limit government by building a framework for it to operate within, called a constitution. The constitution is the bridge between a sovereign people and the governmental institutions they create. The constitution breathes life into every office and position occupied by imperfect people. When those positions abuse their power or act in a way that is detrimental to the People’s rights or liberties, then that office is no longer acting in accordance with the People’s will. If someone in office steps outside their constitutional authority then they lose that authority and stand as naked aggressors against the People and must be dealt with harshly. Such is the state of our government today.

We are under assault by naked aggressors who attempt to cloak themselves in the gossamer armor comprised of the color-of-law. Their protection is transparent and paper thin. It is we who are armed with the might and force of fire and steel. They are no match against a well-armed, righteously indignant populace. However, we have allowed them to deceive us though trickery and indoctrination into believing that reaching for our fire and steel will only do us harm, and that it is better to approach them with pleas and humble words when begging for our liberties to be restored or our rights to be acknowledged.

A new constitution, a proper constitution, taking into account the failings of the previous document; along with the record behind us showing a steady stream of violations and usurpations perpetrated by government; should provide the proper relief from; and establish appropriate bars to, further transgressions until government again finds chinks in our armor for it to exact further harm or seize more control, thus necessitating future constitutions in attempting to remedy any potential flaws in the ones that follow the next. It is a never ending battle that we should be so ever eager to embrace.

Analysis of the Article, "Right to Arms" with annotations.

Also see relevant photos from “Making a Modern Constitution: The Illinois Experience”

SIXTH ILLINOIS CONSTITUTIONAL CONVENTION (1970)

Analysis of the Article, “Right to Arms” with annotations.

Right to Arms

The Committee voted 12 to 3 to add to the Bill of Rights the following new provision concerning the right to arms. “Subject only to the police powers of the State, the right of the individual citizen to keep and bear arms shall not be infringed.” This provision affirms the right of the individual citizen to possess and use arms, including firearms. It also makes explicit the principle that this right is not absolute, but is subject to regulations required by the safety and good order of society. Since the right to arms provision is new, it will be helpful to put it in perspective by reviewing comparable provisions in the United States Constitution and in the constitutions of the several states.

The Second Amendment to the United States Constitution provides: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” The United States Supreme Court has referred to this guarantee as being limited to arms that have “some reasonable relationship to the preservation or efficiency of a well regulated militia . . . .” United States v. Miller, 307 U.S. 174, 178 (1939) subject to regulations required by the safety and good order of society. Since the right to arms provision is new, it will be helpful to put it in perspective by reviewing comparable provisions in the United States Constitution and in the constitutions of the several states.

The Second Amendment to the United States Constitution provides: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” The United States Supreme Court has referred to this guarantee as being limited to arms that have “some reasonable relationship to the preservation or efficiency of a well regulated militia. . . .” United States v. Miller, 307 U.S. 174, 178 (1939).  The Illinois Supreme Court has recently declared that “regulation which does not impair the maintenance of the State’s active, organized militia is not in violation of either the terms or the purposes of the Second Amendment.” Brown v. City of Chicago, 42 Ill. 2d 501, 504, 250 N.E. 2d 129, 131 (1969).

It appears from these interpretations that the Second Amendment language only refers to a collective right, which must be reasonably connected to the maintenance of a militia or other form of common defense. Thirty-five state constitutions have provisions concerning the right to keep or bear arms. Seven of these are cast in the language of the Second Amendment, although two omit the introductory reference to the militia. Four other states (Arkansas, Maine, Massachusetts, Tennessee) use phraseology that is different, but which seems clearly limited to a collective right. The Massachusetts provision reads: “The people have a right to keep and to bear arms for the common defense.” Six state constitutions clearly declare an individual right to arms in language similar to the following provision from the Connecticut constitution: “Every citizen has a right to bear arms in defense of himself and the state.” Columbia University Legislative Drafting Research Fund, CONSTITUTIONS OF THE UNITED STATES, Vols. 1 & 2 (1962); McKenna, The Right to Keep and Bear Arms, 12 MARQ. L. REV. 138 (1928). Alaska, Georgia, Hawaii, Louisiana, North Carolina, Rhode Island, South Carolina. 1970 — COMMITTEE PROPOSALS 85 Alabama, Arizona, and Washington use practically identical language. Texas is similar except that it refers also to the right to “keep” arms. Michigan is like Texas except that it refers to “every person.” Five other state constitutions have a lengthier provision that also expresses an individual right. Colorado, Missouri, Montana and Oklahoma all have provisions similar to the following section from the Mississippi Constitution: “The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.” The provisions of thirteen states are unclear on whether the right to arms is only a collective right, for the common defense, or whether it also guarantees a right to the individual. Eight of these seem to imply an individual right. These declare that “the people” or “the citizens” or “all men” have “a right to bear arms, for the defense of themselves and the state.” But see Pierce v. State 42 Okla. Cr. 272, 275 P. 393 (1929), holding that the protection given the individual by the Oklahoma provision only extends to arms in common use by a militia. Florida, Indiana, Kentucky, Oregon, Pennsylvania, South Dakota, Vermont and Wyoming. But see Carlton v. State, 63 Fla. 1, 58 So 486 (1912), limiting the Florida provision to a collective right. Five others seem to imply a collective right. These declare that “the people have the right to bear arms for their defense and security ….” By referring to “the individual citizen” and to the right to “keep” as well as to “bear” arms, the proposed new provision guarantees an individual right rather than a collective right and seeks to assure that the “arms” involved are not limited by the armaments or needs of the state militia or other military body.

The substance of the right is that a citizen has the right to possess and make reasonable use of arms that law-abiding persons commonly employ for purposes of recreation or the protection of person and property. Laws that attempted to ban all possession or use of such arms, or laws that subjected possession or use of such arms to regulations or taxes so onerous that all possession or use was effectively banned, would be invalid. Idaho, Kansas, New Mexico, Ohio and Utah. Compare City of Salina v. Blaksley, 72 Kan. 230, 83 Pac. 619 (1905), and similar holdings under constitutional provisions concerning only a collective right. People v. Brown, 253 Mich. 537, 541-42, 235 N.W. 245, 246-47 (1931); State v. Duke, 42 Tex. 455, 458 (1875). In re Brickley, 8 Idaho 597, 70 Pac. 609 (1902); People v. Zerillo, 219 Mich. 635, 189 N.W. 927 (1922); State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921). The introductory phrase makes explicit the well settled principle that the right to keep and bear arms is subject to the police power. Thus, in the earliest Illinois decision on the permissible regulatory power concerning firearms, the Illinois Supreme Court upheld the validity of a Chicago ordinance that required that all sellers and buyers of pistols obtain a license. The Court’s reasoning contained this far-reaching dictum: “It is clear, under the authorities, that the sale of deadly weapons may be absolutely prohibited under the police power of the State, and to do this in no way conflicts with the provision of the constitution of the United States and of various state constitutions that ‘the people have a right to bear arms for their defense and security.’ [cites] If the State has the right to prohibit, such right necessarily includes the power of regulating, and the power to regulate includes the power of licensing.” Biffer v. City of Chicago, 278 Ill. 562, 570, 116 N.E. 182, 185 (1917). The Supreme Court cited this case with approval in its recent opinion upholding the validity of the Chicago gun registration ordinance. Brown v. City of Chicago, 42 Ill. 2d 501, 504, 250 N.E. 2d 129, 131 (1969).

Because arms pose an extraordinary threat to the safety and good order of society, the possession and use of arms is subject to an extraordinary degree of control under the police power. The five succeeding paragraphs describe regulatory State v. Dawson, 272 N.C. 535, 548, 159 S.E. 2d 1, 11 (1968); Hill v. Georgia, 53 Ga. 472, 477 (1874); People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931); FREUND, POLICE POWER,§90 (1904). 88 SIXTH ILLINOIS CONSTITUTIONAL CONVENTION measures, including some outright prohibitions, that have been approved as not constituting an unconstitutional infringement of even an individual as well as a collective right to arms. The state may altogether prohibit the possession of certain deadly weapons not commonly and peacefully used by individuals, such as machine guns, firearms equipped with silencing devices, gas-ejecting devices, blackjacks, artillery weapons, bombs, etc. The State may forbid or regulate the possession or use of firearms by minors or by persons whose physical or mental disabilities or violent propensities shown by prior criminal conduct present unacceptable risks of danger to themselves or others. To implement this power, “to provide a system of identifying persons who are not qualified to acquire or possess firearms” (Ill. Rev. Stats., 1969, ch. 38, §83-1), the state may adopt a reasonable licensing law pertaining to those who possess or use firearms. Many states have done so.12/ Illinois adopted such legislation in 1969 (Ibid.) 10/ People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931) (blackjack); Morrison v. State, 170 Tex. Crim. 218, 339 S.W. 2d 529 (1960) (machinegun). 11/ See Ill. Stats., 1969, ch. 38, §24-3.1. Decisions include: Glenn v. State, 10 Ga. App. 128, 72 S.E. 927 (1911) (possession of pistol by minors); Mason v. State, 39 Ala. App. 1, 103 So. 2d 337 (1956), aff’d. 267 Ala. 507, 103 So. 2d 341 (1958) (possession of pistol by persons convicted of crime of violence); State v. Robinson, 217 Ore. 612, 343 P. 2d 886 (1959) (possession of concealable weapons by convicted felon); Webb v. State, 439 S.W. 2d 342 (Tex. Crim. App. 1969) (same); City of Akron v. Williams , 113 Ohio App. 293, 177 N.E. 2d 802 (1960), rev’d. on other g’nds., 175 Ohio St. 186, 192 N.E. 2d 63 (1963) (possession of any firearms by convicted felon). 12/ Matthews v. State, 237 Ind. 677, 148 N.E. 2d 334 (1958); Note, 98 U. Pa. L. Rev. 905 (1950). 1970 — COMMITTEE PROPOSALS 89 The State may prohibit or regulate the carrying of concealed weapons, and may implement this power by licensing laws. Numerous court decisions sustain this power and many states have exercised it.

The State may also regulate or prohibit the carrying of weapons openly when there is no good reason for such action and the regulation bears a fair relation to the preservation of public peace and safety. The State may regulate the purchase and sale of weapons, even to the extent of totally prohibiting the sale of some weapons in some circumstances. McKenna, The Right to Keep and Bear Arms, 12 MARQ. L. REV. 138, 143-44 (1928); Note, 3 L.R.A. (N.S.) 168, 169 (1906); Note, 98 U. PA. L. REV. 905, 908-9 (1950). State v. Dawson, 272 N.C. 535, 159 S.E. 2d 1 (1968) (sustains constitutionality of common-law offense of going armed with dangerous weapons to the terror of the people); Haile v. State, 38 Ark. 564 (1882); Hill v. Georgia, 53 Ga. 472 (1874); 564 (1882); Commonwealth v. Murphy, 166 Mass. 171, 44 N.E. 138 (1896); Presser v. Illinois, 116 U.S. 252 (1885); State v. Duke, 42 Tex. 455 (1875). 15/ Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182 (1917), quoted above; State v. Burgoyne, 75 Tenn. 173 (1881); Caswell & Smith v. State, Tex., 148 S.W. 1159 (1912) (confiscatory tax); Strickland v. State, 137 Ga. 1, 72 S.E. 260 (1911). An exercise of the police power that results in inconvenience or loss to individuals must of course find basis in the doctrine of overruling necessity or bear some substantial relation to the public good, and it must also be consistent with other Bill of Rights guarantees such as Due Process and Equal Protection of the laws.

In upholding some of the licensing measures or other regulations described above, some state courts have relied on specific provisions in their Bill of Rights providing that the right to bear arms was subject to regulation by the legislature. The conferring of specific regulatory authority is unnecessary, since the state enjoys such authority in any case. Nevertheless, as a matter of “super-abundant caution,” the proposed new provision makes the declared right subject “to the police powers of the State.” This reference to the police power “of the State” of course also includes an exercise of police power by cities and villages or other instrumentalities of government to whom state power has been validly delegated. As the Illinois Supreme Court stated in City of Chicago v. O’Connell, 278 Ill. 591, 603, 606, 116 N.E. 210, 214, 215 (1917): 16/ Chicago Park Dist. v. Canfield, 370 Ill. 447, 451-52, 19 N.E. 2d 376, 378 (1939); State v. Dawson, 272 N.C. 535, 547, 159 S.E. 2d 1, 10 (1968). Haile v. State, 38 Ark. 564, 567 (1882), quoted with approval in State v. Dawson, 272 N.C. 535, 548, 159 S.E. 2d 1, 11 (1968). “The police power may be exercised by the legislature directly, or it may be exercised indirectly by conferring the power upon agencies created by the legislature. . . . ‘The City, as the representative of the State, is invested with power to enact and enforce all ordinances necessary to prescribe regulations and restrictions needful for the preservation of the health, safety and comfort of the people.'” The Illinois Supreme Court has recently upheld the validity of the Chicago gun registration ordinance. The Court held that the state legislation that required the registration of gun owners did not preempt the field of gun control and deprive the city of power to deal with the subject by an ordinance that was not inconsistent with the state legislation. Brown v. City of Chicago, 42 Ill. 2d 501, 504, 250 N.E. 2d 129, 131 (1969). The new provision is similar to Proposal 105, which provides that the right of the individual citizen to keep and bear arms should not be infringed except for the mentally ill or convicted felons. Proposals 13 and 502 would have prohibited laws requiring the registration of gun owners or guns. Proposal 80 would have forbidden laws requiring registration or imposing special taxes on firearms. Proposal 470 would have invalidated laws infringing the right to possess and use firearms to safeguard one’s life, but would have authorized the Legislature to regulate weapons used for hunting and other sports. Proposal 526 sought to employ the Second Amendment language that “The right of the people to keep and bear arms shall not be infringed.” A minority of the Committee supported Proposal 220, to the effect that the Bill of Rights should contain no provision -10- §27 concerning the right to keep or bear arms. They were fearful that any mention of this subject in the Bill of Rights might cast doubt upon the validity of existing provisions for licensing gun owners or registering firearms, or might discourage or cast doubt upon the validity of future measures to control guns.

Citing evidence of the increased possession of firearms, especially handguns, and of the high rate of involvement of firearms in home accidents and in crimes of violence, the minority urged the inappropriateness of any constitutional provision that could possibly interfere with efforts to impose reasonable controls on the possession and use of firearms, especially handguns. SCHEDULE A Proposals Considered By Committee The following proposals were examined and considered by the Bill of Rights Committee during its deliberations: NUMBER CHIEF SPONSOR SUBJECT MATTER Dwight P. Friedrich Right to Bear Arms Matthew Hutmacher Preamble Ted A. Borek Preamble Ralph Dunn Preamble John D. Wenum Equal Opportunity Richard K. Cooper Fair Employment Richard K. Cooper Open Housing Clifford L. Downen Right to Bear Arms Joseph A. Tecson Right to Privacy Wendell Durr Right to Bear Arms Francis X. Lawlor Right to Bear Arms Betty Howard Protection from financial slander Henry C. Hendren Right to Bear Arms Henry C. Hendren Abortion Robert Butler Bill of Rights Ronald C. Smith Preamble Mary Lee Leahy Right to Public Information James Gierach Eminent Domain SCHEDULE B Witnesses Heard By Committee The witnesses who appeared before the Bill of Rights Committee are listed in this section according to subject matter.

Where applicable, the witness is identified according to group affiliation. In the case of witnesses heard in Chicago or Waukegan by the committee, no group affiliation is made. The notation Chicago or Waukegan after a witness identifies where testimony was given to the committee. If no notation of location is made, testimony was given in Springfield. In some instances, witnesses were heard on items which the committee took no action. These witnesses are also listed by subject. Because of the large number of witnesses, it is probable that several have been omitted by inadvertence; for which our apologies. All members of the committee were invited to produce witnesses, but in some instances arrangements could not be completed. In some instances, communications were received from persons unable to appear. RIGHT TO BEAR ARMS Wendell Durr, Delegate Clifford L. Downen, Delegate Henry C. Hendren, Delegate Dwight Friedrich, Delegate Franklin Zimring, Professor of law, University of Chicago Marvin Aspen, assistant corporation counsel, Chicago Chief Michael Spiotto, Chicago Police Department David Goldberger, American Civil Liberties Union Robert Kukla, Illinois Rifle Association Jeff Fitzwillia, Chicago  SCHEDULE C MATERIALS UTILIZED BY THE COMMITTEE LEGAL AND RESEARCH ADVISOR’S MEMORANDA (“L.A.R.A.M.”) A major source material studied by the Bill of Rights Committee were the Legal and Research Advisor’s Memoranda (“L.A.R.A.M.”) specially prepared by the Committee’s Counsel, Professor Dallin H. Oaks, and University of Chicago Law School students working under his direction. The students were: James Franczek (J.F.), Joseph H. Grobert (J.H.G.), Randolph N. Jonakait (R.N.J.), David Krott (D.K.), Peter C. Partnow (P.C.P.), and Katherine B. Soffer (K.B.S.). Following is a list of the 50 L.A.R.A.M.’s considered by the Committee, which comprised a total of 660 pages. Following this list there is a summary of the contents of the memoranda, arranged according to the various sections of the existing Bill of Rights and proposed additions. L.A.R.A.M. Title or Subject # 1 Suggested Organization for Consideration of Bill of Rights Topics # 2 Aid to Nonpublic Schools # 3 The Grand Jury Indictment # 4 Stop and Frisk # 5 Religion # 6 Capital Punishment # 7 Provision on Group (Ethnic) Libel # 8 Official to Receive Citizen Complaints # 9 Regulation of Arms #10 Bail and Preventive Detention #11 Jury Trial in Civil Cases #12 Truth as a Defense to Libel #13 Limitation of Criminal Penalties #14 Reduction of Poverty #15 The Privilege Against Self-incrimination #16 Investigative Interrogation #17 Imprisonment for Debt #18 Sex Discrimination #19 The Right to Be Represented by Counsel and the Right to Be Provided with Counsel in Noncriminal Proceedings #20 Railroad Easement #21 Right to Privacy #22 Right to Speedy Trial #23 Chicago Hearings #24 Equal Protection Clause #25 Alternatives on Right to Bear Arms #26 Topics for Decision Day February 25th: I. Inherent and Inalienable Rights, II. Fundamental Principles, III. Preamble, IV. Relations with the Military, V. Provision on Free Elections, VI. Free Speech Provision, VII. The Right to Bear Arms, VIII. Habeas Corpus – 2 – L.A.R.A.M. Title or Subject #27 State Constitutional Provisions on Press, Speech, and Assembly #28 Rights of Public and Private Employees #29 Proposal on Eminent Domain #30 Proposals on Discrimination #31 Proposal on Hortatory Statement Concerning Remedy #32 Opinion on Provision Concerning Right to Bear Arms Section of 1870 Bill of Rights Related L.A.R.A.M.’s and Summary of Contents (L.A.R.A.M. included partial or complete text of all sources cited here) Preamble #35 (p. 24) Includes state constitutional provisions and Illinois case law which indicate that the preamble is to be used as substantive law for the protection of individuals, and comments on a related proposal. #26 (III) Compares language of present and proposed preambles. §1 Inherent and Inalienable Rights NEW PROVISIONS OR PROPOSED NEW PROVISIONS: Arms #9, Regulation of Arms D. Newton and F. Zimring, Firearms and Violence in American Life: A Staff Report to the National Commission on the Causes and Prevention of Violence, 253-62 (1969). #25, Alternative on Right to Bear Arms #26 (VII) Includes an analysis of the right to bear arms #32, Opinion on Provision Concerning Right to Bear Arms Additional material consulted by the Bill of Rights Committee (A partial list.) A Proposed Draft of the Constitution of Illinois prepared by certain students of Elk Grove High School, Township High School District 214. Abortion and the Law. Newsweek, April 13,1970. Facts and Figures About Non-public Schools in Illinois (Revised–January, 1970) Illinois Catholic Conference. A Study of Nonpublic Schools. Prepared for the General Advisory Committee, Office of the Superintendent of Public Instruction. The Case for State Aid for Non-Public Schools. By Monsignor Laurence J. O’Connell, Secretary of Education, Diocese of Belleville. Constitution of the State of Illinois. Proposed by Illinois Jaycee Model Constitutional Convention, November 21-23, 1969. Springfield. Fact Pack on Firearms Ownership. The National Shooting Sports Foundation, Inc. Does Firearms Registration Work? A Statistical Analysis of New York State and New York City. By Alan S. Krug, National Shooting Sports Foundation, Inc. Memorandum of Richard Wexler with respect to Eminent Domain.

Current Constitutional and Statutory Aspects of the Right to Keep and Bear Arms, by Alan S. Krug. “The Lost Amendment,” by Robert A. Sprecher. American Bar Association Journal, June, 1965. MINORITY PROPOSAL 1H BE IT PROPOSED: That Section 27, entitled “Right to Arms”, in the majority proposal of the Bill of Rights Committee be deleted. MINORITY REPORT IH The minority of the Committee submit that it would be unwise and dangerous to add a new provision to the Illinois Constitution creating an individual right to keep and bear arms. The Committee proposal is so ambiguous and self-contradictory that lawyers cannot reasonably determine its meaning and effect. The Committee proposal would create uncertainty about the power of the legislature to enact gun control laws which may be needed in the interest of public safety. The Committee proposal would invite serious public misunderstanding and litigation challenging existing and future gun control legislation. The Committee proposal could even have the self-defeating effect of subjecting Illinois to a federal system of handgun licensing more stringent than would have been necessary otherwise. In view of the extraordinary threat to public safety posed by firearms, the Convention has  every responsibility not to recommend constitutional restrictions which might handicap the legislature in protecting the public. This is especially important in view of the huge supply of firearms in private hands in the United States and the alarming increases in recent years in homicides, attacks on police and other crimes usually committed with guns. No need has been shown for constitutional change on this subject. In our climate of concern about violence, a new constitutional right to bear arms is not the ethical message needed by the people of our state and our nation.

The Committee Proposal is Ambiguous and Self- Contradictory. It is difficult to determine the meaning and effect of the Committee proposal. The proposal declares an undefined individual right to keep and bear arms. The right is, however, completely subject to the vague concept of the “police powers” of the State. What kinds of laws would be prohibited by the Committee proposal? The majority report states that the proposed constitutional provision would not prohibit certain types of firearms laws which have been upheld by the courts, such as laws prohibiting the carrying of concealed weapons, gun registration laws and gun owner licensing laws. The majority is silent, however, as to what new limits, if any, the Committee proposal would place on the power of the legislature to enact other types of gun control laws, laws which are not now on the books and have not been passed on by the courts, but which may be needed in the years to come to deal with the “extraordinary threat to the safety and good order of society” posed by arms. The only answer to this question offered in the majority report is the suggestion on page 4 that a law would be invalid if it “attempted to ban all possession or use” of “arms that law-abiding persons commonly employ for purposes of recreation or the protection of person or property.” However, it is difficult to reconcile this statement with the principle that the “right to keep and bear arms” is completely subject to “the police powers of the State” or with the statement on page 7 of the majority report that the State, acting under the police power, can totally prohibit the sale of “some weapons in some circumstances.” Indeed the majority report cites Biffer v. City of Chicago, 278 Ill. 562, 570 (1917) which said that “the sale of deadly weapons may be absolutely prohibited under the police power of the State. . .” The majority report thus mirrors the inconsistency and ambiguity which are central to the Committee proposal. On balance, however, the majority report appears to reflect the view expressed by most of the Committee members that the Committee proposal is not intended to prevent the legislature from passing such reasonable gun control legislation as Majority report, p. 5. -3- may be needed in the interest of public safety. Thus, the Committee proposal would add nothing to the existing requirement that any gun control legislation must meet constitutional standards of reasonableness. Because this interpretation would make the proposed constitutional change a meaningless act, and because of the ambiguity of the proposal, confusion and uncertainty would inevitably be created about the power of the legislature to pass certain types of gun control legislation which may be deemed necessary in the coming decades.

One type of legislation which may be challenged under the Committee proposal might be enacted under a recommendation of the National Commission on the Causes and Prevention of Violence. The Commission proposed federal legislation under which a federal system of handgun licensing would become applicable only to those states which, within a four-year period, failed to enact a state law restricting the possession of handguns to individuals showing a need to own  handguns. If such a federal law were enacted, the constitutional provision proposed See Majority report, pp. 1 (second paragraph), 5 to 7. As noted above, the majority report cites Biffer v. City of Chicago with apparent approval. Biffer was cited with approval in Brown v. City of Chicago, 42 Ill. 2d 501 (1969) upholding the validity of the Chicago gun registration ordinance. “To Establish Justice, To Insure Domestic Tranquility,” Final Report of the National Commission on the Causes and Prevention of Violence, December 1969, Chapter 7, pp. 180- 182. -4- by the Committee could be self-defeating since the legislature or the courts might be persuaded that a state law of the type required would ban “all possession or use. . .of arms that law abiding persons commonly employ for purposes of recreation or the protection of the person or property.” The result would be to subject Illinois to a more stringent federal system of handgun licensing than would have been the case otherwise. It is not our purpose here to advocate the legislation recommended by the Violence Commission or any other particular gun control laws. We do submit, however, that the Convention should not approve a constitutional provision which is so ambiguous that lawyers cannot determine its meaning or effect.

Whatever interpretation would ultimately be given to the Committee proposal, its ambiguity and inconsistency seem certain to invite public misunderstanding and litigation challenging existing and future gun control laws. The general public cannot be expected to understand that since the proposed individual constitutional right is completely subordinate to the “police power” of the state, the “right” may turn our to be without content. This type of constitutional change is not likely to build public confidence in the work of the Convention. See 80 Harvard Law Review 1328, 1344 (1967). -5- 2. The Legislature Must Be Left With Broad Power To Enact Whatever Weapons Control Laws Are Needed In The Interest Of Public Safety. It is not the responsibility of the Constitutional Convention to decide what, if any, gun control laws should be adopted in Illinois. Nor is the Constitutional Convention equipped, as is the legislature, to gather the facts in order to decide from time to time what changes in our gun control laws are necessary. However, in view of the extraordinary threat to public safety posed by firearms, the Convention has  every responsibility not to recommend constitutional restrictions which might handicap the legislature in protecting the public. For many years, public officials concerned with law enforcement, including J. Edgar Hoover, the International Association of Chiefs of Police and the National Conference of Mayors, have joined responsible leaders of both political parties in urging the need for more effective gun control laws to deal with the problem of violent crime in the United States.

Public opinion polls have shown repeatedly that See The Challenge of Crime in a Free Society, a Report by the President’s Commission on Law Enforcement and Administration of Justice, Chapter 10 (1967). -6- the general public, including gun owners, favors stricter gun control legislation. Just last year the National Commission on the Causes and Prevention of Violence documented the problems arising from the huge supply of firearms in civilian hands in the United States. The Violence Commission estimated there are now 90,000,000 firearms in the United States. In recent years sales of firearms, particularly handguns, have risen sharply. The Commission concluded that “the urban arms build-up threatens not only to escalate future civil disorders, but also to bring with it greater misuse of firearms in crimes and accidents.” Among other key findings of the Violence Commission are the following: “Firearms are a primary instrument of injury and death in American crime. Two out of every three homicides are committed with guns. Since 1963 the number of homicides involving firearms has increased 48 percent in the United States while the number of homicides committed with other weapons has risen only 10 percent. A 1967 Gallup Poll showed the public favoring gun registration laws by 73% in the case of long guns and 85% in the case of handguns. During the past 10 years a series of Gallup Polls has found a strong majority of the public favoring a law under which it would be necessary to obtain a police permit before purchasing  handguns. Majorities favoring such a law have ranged as high as 78% (73% in the most recent 1967 Poll). Such laws have also been favored by a majority of gun owners (60% in 1965). 7/ “To Establish Justice, To Insure Domestic Tranquility,” Final Report of the National Commission on the Causes and Prevention of Violence, December 1969, Chapter 7. See also the Commission’s Task Force Report “Firearms and Violence in American Life” by George D. Newton and Franklin E. Zimring. -7- “The deadliness of firearms is perhaps best illustrated by the fact that they are virtually the only weapons used in killing police officers. Policemen are armed. They are trained in the skills of self-defense. They expect trouble and are prepared for it. Yet, from 1960 through 1967, 411 police officers were killed in the course of their official duties — 76 of them in 1967 alone. Guns were used in 96 percent of these fatal attacks on police. “In assassinations, guns play a crucial role because they extend the deadliness and the effectiveness of the assassin. Of the nine assassination attempts on American presidents or presidential candidates, all involved firearms. All, except the assassination of President Kennedy, involved handguns. “Guns also play an increasingly deadly role in aggravated assault and robbery. In 1968, 23 percent of all aggravated assaults were committed with guns, as opposed to only 13 percent in 1963. One out of every three robberies (two out of every three armed robberies) is committed with a gun, and the fatality rate for victims of firearms robberies is almost four times as great as for victims of other armed robberies. “In all these violent crimes, handguns are the weapon predominantly used. Although only slightly more than one-fourth (or 24 million) of the firearms in the nation are handguns, they account for about half of all homicides and three-fourths of all firearms homicides. When firearms are involved in aggravated assaults and robberies in large cities, the handgun is almost invariably the weapon used.” During 1968, 68 police officers were killed in the line of duty. Guns were used in 96% of the fatal attacks on officers between 1960 and 1968. In the City of Chicago in 1968, 5 policemen were killed and 39 shot with firearms. In 1969, 9 were killed and 64 shot (information supplied by chief of Chicago Detectives Michael Spiotto) -8- In recent years the rhetoric of extremist groups urging their followers to arm themselves, together with fear of civil disorders, has contributed to a climate in which discussion of firearms legislation frequently becomes highly charged emotional debate. The Convention must seek to avoid such debate and focus instead on its responsibility to generations to come, whose problems in this field may be even more serious than ours. The proposed right to bear arms is without precedent in the Illinois Constitution. The report of the Committee mentions no reason whatever for adding a provision of this kind at this time. No need has been shown for constitutional change on this subject. In our climate of concern about violence, a new constitutional right to bear arms is not the ethical message needed by the people of our State and our nation. -9- 174

1) Since this provision is new, it is not to mean that the right never existed. The only thing this article does do is specify a specific right and not define an unalienable right. The Constitution cannot give people any rights. It may identify certain rights and specify certain conditions under which the government may infringe upon or limit those rights, but such intrusive powers only arise when the exercise of that right by individual People results in a conflict with, or infringement upon, other’s like-rights. Under those circumstances the constitution provides for a limited power to address a specific and limited issue arising from conflicts of the exercise of that right. This Article states that subject “only to the police power…”, which does not say, “Subject to the will of the Legislature….”. The police power has a limited and specific application and cannot infringe upon an already existing natural right. This article is thus misleading and contradictory and should be read in the context of having applications pertaining to commercial or regulatory actions; and not applicable to the private actions of private people who provide for their own safety and security, as well as that of their fellow Citizens.

2) Notice how this Supreme Court ruling applies to actions in “interstate commerce” of which authority is delegated under Article I, Section 8, Clause 3 of the Constitution of the United States.