I will try to make this as simple as possible, but you will have to pay very close attention and abandon everything you have previously believed regarding drivers licenses. Despite what you believe about what you “think” should be done to regulate others who use their vehicle for personal transportation, keep in mind that the government has not been endowed with general authority in requiring people to apply for, and possess, licenses for their private actions. There are words which you will need to pay close attention to, and not assume you know the meaning, since they have been specifically defined in the statutes. Words such as, “resident”, “natural person”, “State”, “licensee”, “drive, “motor vehicle”…etc. Do not automatically assume the words have the same meaning as your everyday usage. Do not automatically assume the definitions apply to you.
So, what does a driver’s license do? Well, by definition a license is permission to do something that is otherwise illegal.
http://legal-dictionary.thefreedictionary.com/license – The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a Trespass or a tort. The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.
Notice the word “privilege”. It is used throughout the statutes as well. You will often hear that “driving is a privilege”. In a sense, that is true, since driving is a specific activity and not necessarily what many of you do with your automobile. Let’s look at what a privilege is:
http://legal-dictionary.thefreedictionary.com/privilege – privilege n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.
So, if privileges apply to a particular group or class of people, who are they? Well, first we have to look at just “who” can be regulated and what they are doing. This will fall under the state’s “police power“. What is the “police power”? It is the inherent power of the State to legislate for the healty, safety, welfare, and morals of its citizens. It is primarily limited to businesses or professional occupations. Keep this in mind because I’ll refer back to it later.
There are essentially two types of “persons”, residents and non-residents. We will first look at residents. A resident is defined thusly:
(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)
There are a couple of things to note. The use of the term “natural person” and “this State”. We know that corporations are considered persons under the law, and we assume that persons always includes people, but such is not the case. You must look at the object of the legislation and then at the definitions. A “person” may, in some cases depending on the legislation, mean only corporations. Likewise, “natural persons” to not mean only people. By the same token, “person” does not necessarily mean people. The Vehicle Code defines “person” as:
(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation.
(Source: P.A. 76-1586.)
So, regarding “persons”, we have reference to natural persons, and corporate entities. Seeing as how they are hanging their hat on “natural persons”, we need to investigate how that is used throughout other laws.
Here are a couple of examples:
Under former clause 5 of ¶1 of former chapter 1 (now this paragraph) providing that the word “person” or “persons,” as well as all words referring to or importing persons, might extend and be applied to bodies politic and corporate as well as individuals, a dram shop license might be issued to a corporation as well as an individual. People, on Inf. of Healy v. Heidelberg Garden Co., 1908, 84 N.E. 230, 233 Ill. 290. Intoxicating Liquors
The word “parties” in the Venue Act (see, now, ch. 110, ¶501 et seq.) refers to and imports persons and includes corporations. Commercial Ins. Co. v. Mehlman, 1868, 48 Ill. 313, 95 Am.Dec. 543.
Corporations are included in the word “person” in the attachment law. Mineral Point R. Co. v. Keep, 1859, 22 Ill. 9, 74 Am.Dec. 124.
The term “natural person” or “natural persons,” used in the Banking Act (ch. 16 1/2 , ¶101 et seq.), extends to and applies to “bodies politic” and “corporate.” Fidelity Inv. Assn. v. Emmerson, 1924, 235 Ill.App. 518, reversed on other grounds 318 Ill. 548, 149 N.E. 530.
The word “company” in an act relating to the right to operate a street railway could not, under ¶1 of former chapter 1 (now this paragraph) be construed to include a natural person. Goddard v. Chicago & N.W. Ry. Co., 1903, 104 Ill.App. 526, affirmed 202 Ill. 362, 66 N.E. 1066.
The word “person” authorizes a recovery upon the complaint of a body politic or corporate. Durbin v. People, 1894, 54 Ill.App. 101.
A city was a “person” within Workmen’s Compensation Act, § 3 (ch. 48, ¶136, repealed), in view of ¶1 of former chapter 1 (now this paragraph). Smith v. City of Hamilton, 1924, 231 Ill.App. 482.
So, based on the foregoing, we cannot assume that a “natural person” necessarily means people in-general. It is reasonable to conclude that a natural person is a human being, but a human being acting as a representative for a corporation or having a duty as an officer of a corporation. Since you cannot impose a duty or obligation upon a incorporeal entity, like a corporation, you can upon an individual who is charged with executing the by-laws of the corpration. There must be a flesh-and-blood individual responsible for carrying forth the operations of the corporation.
If “persons” and “natural persons” may mean people, cities, corporations, how do we determine who is bound by the law? Let’s look at the definition further. A resident is distinguished by two means, the “natural person” and the “un-natural person”, aka, corporation. This illustrates what I have just explained above. However, pay attention to the location of residency. Natural persons reside in “this State” and corporations reside in the State of Illinois.
Natural Persons – (a) Every natural person who resides in this state shall be deemed a resident of this State.
Corporations not incorporated in the State of Illinois – (b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
Corporations Incorporated in the State of Illinois – (c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois
There are two things to note. Notice how in (a), there are two spellings of “this state”, one being with a lower case (s) state, and the other with an upper case (S) State. This is no accident, and when read actually makes no apparent sense. Here are a few ways to possibly interpret that phrase:
(a) Every human being who resides in illinois shall be deemed to be a resident of Illinois
(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in illinois shall be deemed to be a resident of Illinois
(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in this state shall be deemed to be a resident of Illinois
(a) Every human being who resides in Illinois shall be deemed to be a resident of this State.
(a) Every human being who resides in this state shall be deemed to be a resident of Illinois
As you can see, it really makes no sense if “this state” and “this State” means the State of Illinois. So, what is “this (s)(S)tate”? In the case of natural persons, it is residency. In the case of corporations, it is their place of business or incorporation. If it applies to corporations the phrase “State of Illinois” is used, and in the case of natural persons it is “this state”.
We must determine what exactly a “state”/”State” is. I will prove that there is a state, other than the State of Illinois, which is used for the Illinois Vehicle Code. The Illinois Statutes define “State” differently in certain statutes.
(5 ILCS 70/1.14) (from Ch. 1, par. 1015)
Sec. 1.14. “State,” when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words “United States” may be construed to include the said district and territories.
(Source: Laws 1945, p. 1717.)
5 ILCS 70/1.14 – § 1.14. “State,” when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words “United States” may be construed to include the said district and territories.
1. District of Columbia – The District of Columbia is a “state” within the proviso of ch. 110 1/2 , ¶6 (see, now, ch. 111, ¶5506), permitting certified public accountants holding certificates issued under laws of another “state” to practice in Illinois. Gore v. National Ass’n of Certified Public Accountants, 1924, 231 Ill.App. 38., 5 I.L.C.S. 70/1.14, IL ST CH 5 § 70/1.14
There are parts of the Illinois Compiled Statutes which have gone to lenghts to actually define “State”, or “this State”.
AIR TRANSPORTATION
(620 ILCS 5/) Illinois Aeronautics Act.
(620 ILCS 5/7) (from Ch. 15 1/2, par. 22.7)
http://033ffdb.netsolhost.com/mark/ilcs/ilcs3d5c4.html?ActID=1803&ChapterID=48
Sec. 7. “State” or “this State” means the State of Illinois; and “Department” means the Division of Aeronautics of the Department of Transportation of this State.
(Source: P.A. 81-840.)
We can infer from the use of state in other statutes that there is a difference between Illinois, and parts of the Unites States; meaning that things other than the several 50 states can be States. So far, we have determined that persons can be people or legal entities. We have also determined that, as far as the Vehicle Code is concerned, when referring to persons, the definition specifies “natural persons”, and that “natural persons” can be both people and legal enties. As an example, let’s look at another part of the Transporation Statutes, in this case, Roads and Bridges, and see how they define a “person”:
ROADS AND BRIDGES
(605 ILCS 5/) Illinois Highway Code.
(605 ILCS 5/2-216) (from Ch. 121, par. 2-216)
http://033ffdb.netsolhost.com/mark/ilcs/ilcs41783.html?DocName=060500050HArt.+2+Div.+2&ActID=1745&ChapterID=45&SeqStart=1100000&SeqEnd=3200000
Sec. 2-216. Person-Any person, firm, partnership, association, public or private corporation, organization or business or charitable trust.
(Source: Laws 1959, p. 196.)
I fail to find the term “natural person” used for the Illinois Highway Code. So, to what does that code apply? Does it apply to “this State”, or “the State of Illinois”?
(605 ILCS 5/1-103) (from Ch. 121, par. 1-103)
Sec. 1-103.
This Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction (1) of any department, board, commission or agency of this State other than the Department of Transportation or (2) of any municipal corporation other than a city, village or incorporated town.
(Source: P.A. 77-173.)
Now, this is telling in that the Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction of another agency of “this State” other than the Department of Transporation or of a municipal corporation other than a city, village, or incorporated town. It can also be worded to say, “This Code applies to all public highways in the State of Illinois except areas under the exclusive jurisdiction of something other than the Department of Transportation or a municipal corporation that is not a city, village, or town.” So, as far as the Illinois Highway Code is concerned, there are public highways in the State of Ilinois, and those under the exclusive jurisdiction of “this State”, or a municipal corporation other than a city, village, or incorporated town, which can include a municipal corporation of the Unites States which is also called a State, such as:
625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586
To complicate matters further, but to illustrate a dual and overlapping jurisdiction of state and federal authority, we will look at Illinois in another light, that being, as a federal territory:
DIVISION 1. SYSTEMS OF HIGHWAYS
http://033ffdb.netsolhost.com/mark/ilcs/ilcs4367d.html?DocName=060500050HArt.+2&ActID=1745&ChapterID=45&SeqStart=500000&SeqEnd=3200000
(605 ILCS 5/2-202) (from Ch. 121, par. 2-202)
Sec. 2-202. Highway-any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, or which has been or may be laid out and connect a subdivision or platted land with a public highway and which has been dedicated for the use of the owners of the land included in the subdivision or platted land where there has been an acceptance and use under such dedication by such owners, and which has not been vacated in pursuance of law. The term “highway” includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a “road”, while a highway in a municipal area may be called a “street”.
(Source: Laws 1959, p. 196.)
Now, notice how there is a “Territory of Illinois” distinguished from “this State”. Illinois ceased being a territory with the Ordinance of 1818 when it was allowed statehood. However, the federal government has exclusive jurisdiction over its territories. Notice the “Source” date on the statute. It is 1959. There was no Illinois Territory in 1959, or was there? What exactly do they mean by Territory of Illinois? Let’s look at the definition of a “territory”:
http://legal-dictionary.thefreedictionary.com/territory
TERRITORY. Apart of a country, separated from the rest, and subject to a particular jurisdiction. The word is derived from terreo, and is so called because the magistrate within his jurisdiction has the power of inspiring a salutary fear. Dictum cat ab eo quod magistratus intra fines ejus terrendi jus habet. Henrion de Pansy, Auth. Judiciare, 98. In speaking of the ecclesiastical jurisdictions, Francis Duaren observes, that the ecclesiastics are said not to have territory, nor the power of arrest or removal, and are not unlike the Roman magistrates of whom Gellius says vocationem habebant non prehensionem. De Sacris Eccl. Minist. lib. 1, cap. 4. In the sense it is used in the constitution of the United States, it signifies a portion of the country subject to and belonging to the United States, which is not within the boundary of any of them.
2. The constitution of the United States, art. 4, s. 3, provides, that “the congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States; and nothing in this constitution shall be construed, so as to preclude the claims of the United States or of any state.”
3. Congress possesses the power to erect territorial governments within the territory of the United States; the power of congress over such territory is exclusive and universal, and their legislation is subject to no control, unless in the case of ceded territory, as far as it may be affected by stipulations in the cessions, or by the ordinance of 1787, 3 Story’s L. U. S. 2073, under which any part of it has been settled. Story on the Const. Sec. 1322; Rawle on the Const: 237; 1 Kent’s Com. 243, 359; 1 Pet. S. C. Rep. 511, 542, 517.
4. The only organized territories of the United States are Oregon, Minnesota, New Mexico and Utah. Vide Courts of the United States.
This essentially says that a territory is separate from the rest of the country and subject to particular jurisdiction under the full control of Congress, including land ceded to the federal government and governed by stipulations. I posit, the stipulations are the accepting federal highway dollars for roads and other transportation uses, thereby subjecting the “highways” to the control of Congress, the area over which it legislates is referred to as, “this State”. I am speculating that when it comes to the drivers license, the State of Illinois does not have the right to license the use of roads under the jurisdiction of the United States, and any alleged violation for not possessing a license can be removed to federal court for lack of standing on the part of the state government.
Here is a sampling of how the federal monies are used over certain roads and the corresponding jurisdiction over those roads:
http://033ffdb.netsolhost.com/mark/ilcs/ilcs4c9b1.html?DocName=060500050HArt.+3&ActID=1745&ChapterID=45&SeqStart=3200000&SeqEnd=5200000
(605 ILCS 5/3-104.2) (from Ch. 121, par. 3-104.2)
Sec. 3-104.2. The Department, or the Department in cooperation with municipal corporate authorities or county authorities, is authorized to receive and expend, by agreement or otherwise, federal funds for the construction, reconstruction and improvement of public roads not on any Federal-aid system, being improved under the Federal Aid Road Act.
Any Federal-aid project as authorized in this Section may be undertaken jointly at the expense of the federal government and the State of Illinois, or jointly at the expense of the federal government, a municipality or municipalities, or a county or counties, or jointly at the expense of the federal government, the State of Illinois, a municipality or municipalities or a county or counties, or any of the above jointly with any other public or private entity or public utility.
The authority having jurisdiction over a public road not on any federal-aid system prior to its improvement as a federal-aid project shall continue to be responsible for maintenance, at its own expense.
For the purposes of this Section, “public road” means any road under the jurisdiction of and maintained by a public authority and open to public travel and which is not on a federal-aid system.
(Source: P.A. 84-298.) – (Notice how the term “State of Illinois” is used instead of “this State”)
I apologize if I have deviated from my original intent, but I feel that foundation is important in supporting my analysis. All of this will come together to help you realize that the drivers license laws, although initially under the control of the States as a valid exercise of their police power in licensing and regulating drivers (chaffeurs) who accept compensation for carrying on a business, has now, through federal encroachment, become a plenary object of congress and an agreement between the States and Federal Government to establish a murky jurisdiction. Remember, the Federal Government has no authority within the boundaries of a State without that sovereignty being waived or ceded to the Federal Government, and upon doing so, thereby creates an area of concurrent jurisdiction where a federal State is found within the boundaries of one of the several States. From this, grew the National Driver Register, mandatory seat-belt laws, sobriety checkpoints, and more.
I believe it can be further speculated, that the Governor of the State of Illinois violates his oath of office by acting as an ambassador/administrator for the Federal Government in binding the people to federal regulations without clear constitutional authority or mandate. The nail in the coffin is the Illinois Highway Safety Law. I will reference the law, the Governor’s role, and a telling phraseology of what “this State” is in relation to establishing a federal territory in the State of Illinois for the purpose of receiving federal highway funds, which then provide the nexus for federal regulations imposed upon the states.
(625 ILCS 5/Ch. 17 heading)
CHAPTER 17. ILLINOIS HIGHWAY SAFETY LAW
http://033ffdb.netsolhost.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.
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
MarcMkKoy.com 
Government Regulators Target 11-year Old's Cupcake Business
This story http://www.bnd.com/2014/01/26/3021370/troy-11-year-old-turns-cupcakes.html about an industrious, entrapreunorial youngster caught the attention of the Madison County Health Department, inspiring the synaptic-challenged, bureaucratic buffoonery of nanny-state nincompoops to rear its empty head and threaten the child with a sundry of penalties if she does not procure proper permits, licenses, and pay corresponding fees. The story referencing the state-sponsored terrorist threats against a child of insufficient age, to understand legalese or comprehend the law, is here http://www.bnd.com/2014/01/27/3026205/stir-crazy-young-baker-needs-help.html
The story was encapsulated by this brilliant political cartoon, the artist-of-which, I must say, shares some of my DNA. Aside from the over-the-top bullying by the State, this is primarily a litmus test to see how far they can push us, in this case, tugging at our heart strings with an 11 year old girl who has beckoned the ire of the State.
Madison County Cupcake Regulatory Dipshits
A perusal of the county website,http://www.madisonchd.org/index.shtml, shows the chief administrator as:
Toni Corona, B.S., L.E.H.P.
Public Health Administrator
tmcorona@co.madison.il.us
(618) 296-6065
The Board of Health Members roster is here: http://www.madisonchd.org/board-of-health.shtml
Of course, the government does this all under the pretense that they are watching out for our safety; and such regulations are intended to prevent the spread of disease and injury from businesses who fail, or refuse, to implement prudent and reasonable precautions. This power, called the “police power” (which has nothing go do with police as we commonly refer to them) is regarded as in inherent power of the State to provide for the protection of the public health, safety, welfare, and morals. The police power is undefined, broad, and unlimited. It does not derive from any constitution. It’s powers are limited by the constitution, meaning it cannot cause you to be arrested or searched without constitutional limitations applying, but the scope of its legislation is so encompassing that it does need a constitution to bestow it. It is the inherent power of the State.
The purpose of this article is not to provide an in-depth analysis of the police power because first, the discussion on the validity of the State, sovereignty, natural rights, and consent, would need to be analysed. This article is a diatribe against a county regulatory board which has capriciously and zealously targeted a harmless 11 year-old girl with precocious baking abilities, and painting her as a threat to the public health in-need of governmental oversight in order to secure the confidence and soothe the minds of the fearful masses from contracting life-threatening pathogens or disease from the pre-pubescent, dough-flinging wench.
As with most bureaucratic buffoonery, the regulators will allege a violation, yet fail or refuse to cite which specific law is being broken. They will claim that you need a permit or license, or that you can’t do something, but never articulate the specifics supporting their claims. If we are to believe the Health Department’s claim, we need to find the law they refuse to cite. I found 3 possible laws/regulations which could possibly apply. The result of my research revealed the Cottage Food Preparation Act, which addressed ONLY food sold at farmer’s markets.
The first source would be the Madison County Zoning Ordinance – http://www.co.madison.il.us/planning/PDF/ZoningOrdinance.pdf
This would address the use of the home, as zoned, for baking.
The second source would be the Illinois Food Preparation Act – http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1584&ChapterID=35
And the third would be the Illinois Food Handling Regulation Enforcement Act. – http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1578&ChapterID=35
The most applicable and plausible regulation is the Food Handling Regulation Enforcement Act (410 ILCS 625/4), which allows for “Cottage food operation”.
If you want to understand legislation, there is no better resource than the House or Senate debates as to the intent and application of that Legislation. I researched what the County failed to define and found some very telling information. It is my contention that the law does NOT apply to Chloe, and others like her who are not corporate entities or otherwise dealing with hazardous foodstuffs being sold to the public.
My research and findings follow. In the mean-time, If I were Chloe, I would continue to do what I do and wait for the paper tiger to bare its fangs and let the chips fall where they may. I seriously doubt there would be any fines or penalties in her case.
Madison County Zoning Ordinance
http://www.co.madison.il.us/planning/PDF/ZoningOrdinance.pdf
PUBLIC HEALTH (410 ILCS 650/) Sanitary Food Preparation Act. ~ http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1584&ChapterID=35
PUBLIC HEALTH (410 ILCS 625/) Food Handling Regulation Enforcement Act. ~ http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1578&ChapterID=35
Cottage Food Preparation added by Public Act 097-0393 http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=097-0393&GA=97
SB0840 Enrolled LRB097 04584 KTG 44623 b
Senate Transcripts
http://www.ilga.gov/search/LISGSApage.asp?target=SB0840&submit1=Go&scope=sentran97
5/3/2011 @ Page 47 This bill relates to food sold at Farmer’s Markets ~ http://www.ilga.gov/senate/transcripts/strans97/09700035.pdf
5/27/2011 @ Page 13 Voting on the Bill ~ http://www.ilga.gov/senate/transcripts/strans97/09700054.pdf
House Transcripts
5/23/2011 @ Page 34 through Page 43 Addresses food sold at Farmer’s Markets and discusses how home bakers are affected. THIS is the important discussion you want to read. In the discussion it states that the Amish are already allowed to sell bake goods, and the Bill does not affect them. On Page 37, it discusses specifically bake sales held by groups or churches and the determination is that it does not affect what they do, it just adds the definition of what a farmer’s market is. At the top of Page 38, Representative Dugan says, “We think… I think, Representative (speaking to Representative Eddy) they’re currently exempt under current law.” ~ http://www.ilga.gov/house/transcripts/htrans97/09700062.pdf
TEXT OF THE ILLINOIS COTTAGE FOOD PREPARATION PROVISION
(410 ILCS 625/4)
Sec. 4. Cottage food operation.
(a) For the purpose of this Section:
“Cottage food operation” means a person who produces or packages non-potentially hazardous food in a kitchen of that person’s primary domestic residence for direct sale by the owner or a family member, stored in the residence where the food is made.
“Farmers’ market” means a common facility or area where farmers gather to sell a variety of fresh fruits and vegetables and other locally produced farm and food products directly to consumers.
“Potentially hazardous food” means a food that is potentially hazardous according to the Federal Food and Drug Administration 2009 Food Code (FDA 2009 Food Code) or any subsequent amendments to the FDA 2009 Food Code. Potentially hazardous food (PHF) in general means a food that requires time and temperature control for safety (TCS) to limit pathogenic microorganism growth or toxin formation. In accordance with the FDA 2009 Food Code, potentially hazardous food does not include a food item that because of its pH or Aw value, or interaction of Aw and pH values, is designated as a non-PHF/non-TCS food in Table A or B of the FDA 2009 Food Code’s potentially hazardous food definition.
(b) Notwithstanding any other provision of law and except as provided in subsections (c) and (d) of this Section, neither the Department of Public Health nor the Department of Agriculture nor the health department of a unit of local government may regulate the service of food by a cottage food operation providing that all of the following conditions are met:
(1) The food is not a potentially hazardous baked
good, jam, jelly, preserve, fruit butter, dry herb, dry herb blend, or dry tea blend and is intended for end-use only. The following provisions shall apply:
(A) The following jams, jellies and preserves are
allowed: apple, apricot, grape, peach, plum, quince, orange, nectarine, tangerine, blackberry, raspberry, blueberry, boysenberry, cherry, cranberry, strawberry, red currants, or a combination of these fruits. Rhubarb, tomato, and pepper jellies or jams are not allowed. Any other jams, jellies, or preserves not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6.
(B) The following fruit butters are allowed:
apple, apricot, grape, peach, plum, quince, and prune. Pumpkin butter, banana butter, and pear butter are not allowed. Fruit butters not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6.
(C) Baked goods, such as, but not limited to,
breads, cookies, cakes, pies, and pastries are allowed. Only high-acid fruit pies that use the following fruits are allowed: apple, apricot, grape, peach, plum, quince, orange, nectarine, tangerine, blackberry, raspberry, blueberry, boysenberry, cherry, cranberry, strawberry, red currants or a combination of these fruits. Fruit pies not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6. The following are potentially hazardous and prohibited from production and sale by a cottage food operation: pumpkin pie, sweet potato pie, cheesecake, custard pies, creme pies, and pastries with potentially hazardous fillings or toppings.
(2) The food is to be sold at a farmers’ market.
(3) Gross receipts from the sale of food exempted
under this Section do not exceed $25,000 in a calendar year.
(4) The food packaging conforms to the labeling
requirements of the Illinois Food, Drug and Cosmetic Act and includes the following information on the label of each of its products:
(A) the name and address of the cottage food
operation;
(B) the common or usual name of the food product;
(C) all ingredients of the food product,
including any colors, artificial flavors, and preservatives, listed in descending order by predominance of weight shown with common or usual names;
(D) the following phrase: “This product was
produced in a home kitchen not subject to public health inspection that may also process common food allergens.”;
(E) the date the product was processed; and
(F) allergen labeling as specified in federal
labeling requirements.
(5) The name and residence of the person preparing
and selling products as a cottage food operation is registered with the health department of a unit of local government where the cottage food operation resides. No fees shall be charged for registration.
(6) The person preparing and selling products as a
cottage food operation has a Department of Public Health approved Food Service Sanitation Management Certificate.
(7) At the point of sale a placard is displayed in a
prominent location that states the following: “This product was produced in a home kitchen not subject to public health inspection that may also process common food allergens.”.
(c) Notwithstanding the provisions of subsection (b) of this Section, if the Department of Public Health or the health department of a unit of local government has received a consumer complaint or has reason to believe that an imminent health hazard exists or that a cottage food operation’s product has been found to be misbranded, adulterated, or not in compliance with the exception for cottage food operations pursuant to this Section, then it may invoke cessation of sales until it deems that the situation has been addressed to the satisfaction of the Department.
(d) Notwithstanding the provisions of subsection (b) of this Section, a State-certified local public health department may, upon providing a written statement to the Department of Public Health, regulate the service of food by a cottage food operation. The regulation by a State-certified local public health department may include all of the following requirements:
(1) That the cottage food operation (A) register with
the State-certified local public health department, which may include a reasonable fee set by the State-certified local public health department notwithstanding paragraph (5) of subsection (b) of this Section and (B) agree in writing at the time of registration to grant access to the State-certified local public health department to conduct an inspection of the cottage food operation’s primary domestic residence in the event of a consumer complaint or foodborne illness outbreak.
(2) That in the event of a consumer complaint or
foodborne illness outbreak the State-certified local public health department is allowed to (A) inspect the premises of the cottage food operation in question and (B) set a reasonable fee for that inspection.
(Source: P.A. 97-393, eff. 1-1-12.)