One Thing Jack McLamb Got Wrong
And
The Right of Avoidance
One of
the frustrating things about studying and applying law is that there
are often so many exceptions or allowances to rules in the law
regarding what can be proven true and what is not proven true, that
sometimes one assumes something is true just because it seems to make
sense and sounds correct in common parlance. Yet, when it is examined
closer, it proves to be not true under certain circumstances.
One such example of this is Jack McLamb’s assertion that the
driver license is a contract, and that it can be enforced under any one
of two circumstances. The harm here is: If you happen to mistakenly
believe that assertion is unconditionally
true, you may inadvertently consent to its enforcement.
Where we find exception with his assertion is in the second group of
people in the category he outlined. He wrote:
“Some of the
confusion in our present system has arisen because many
millions of people have waived their right to travel unrestricted and
volunteered into the jurisdiction of the state. Those who have
knowingly given up these rights are now legally regulated by state law
and must acquire the proper permits and registrations.
“There are basically two groups of people in this category:
“1) Citizens who involve themselves in commerce upon the
highways of the
state.
“(2) The second group of citizens that is legally under the
jurisdiction
of the state are those citizens who have voluntarily and knowingly
waived their right to travel unregulated and unrestricted by requesting
placement under such jurisdiction through the acquisition of a state
driver’s license, vehicle registration, mandatory insurance,
etc. (In other words, by contract.)”
While it is true that anyone who “
voluntarily and knowingly
waived their right to travel unregulated and unrestricted by requesting
placement under such jurisdiction through [acquiring] a state
driver’s license...” can be held to account for the
violation of a traffic code or ordinance based solely upon their
consent, such person, if he wishes to object, cannot be
compelled to be
held accountable, especially when no damage or injury to anyone has
occurred. Nevermind the fact that most people who apply for and receive
a driver license are
unaware
that they are waiving any right, which means that the act of
application for the license was not done “
voluntarily and knowingly.”
But let’s back up here and clear up one misconception before
we tackle the idea that a person has the right not to be compelled by
law to perform under a driver license.
Strictly speaking, the driver license is expressly
not a contract.
Therefore, it carries none of the obligations of a contract, and cannot
be used as such to compel compliance with the traffic codes (assuming
one is
operating their automobile outside of commercial interests). It does
not contain the four requisites necessary to be considered a contract
by law. The validity of these statements is backed up by the following
court ruling:
“License.
“A permit granted by an appropriate governmental body,
generally for a consideration, to a person, firm, or corporation to
pursue some occupation or to carry on some business subject to
regulation under the police power. A license is not a contract between
the state and the licensee, but is a mere personal permit. Rosenblatt
v. California State Board of Pharmacy, 69 Cal. App. 2d 69,
158 P. 2d
199, 203. Neither is it property or a property right. American States
Water Service Co. of California v. Johnson, 31 Cal. App.
2d 606, 88 P.
2d 770, 774.” Black’s
Law Dictionary, 6th
Ed. pgs. 919, 920.
A valid contract, according to
Black’s
Law Dictionary, 4th
edition is:
A promissory agreement
between two or more persons that creates, modifies, or destroys a legal
relation. . . . It is agreement creating obligation, in which there
must be competent parties, subject-matter, legal consideration,
mutuality of agreement, and mutuality of obligation, and agreement must
not be so vague or uncertain that terms are not ascertainable.
What private law administrative courts will do is to
construct a
contract (using assumption) where in reality no contract
exists. If that
constuctive
contract is not objected to
during the court proceedings, it will stand as a true assumption and be
entered into the facts of the case. If you don't want that assumption
to stand, you must get your objection to it
on the record.
Black’s Law
Dictionary, 4th edition explains what a
constructive contract is:
Constructive Contract
Constructive contracts are such as arise when the law prescribes the
rights and liabilities of persons who have not in reality entered into
a contract at all, but between whom circumstances make it just that one
should have a right, and the other be subject to a liability, similar
to the rights and liabilities in cases of express contract.
An implied contract is one not created or evidenced by the explicit
agreement of the parties, but
inferred by the law, as a matter of
reason and justice from their acts or conduct, the circumstances
surrounding the transaction making it a reasonable, or even a
necessary, assumption that a contract existed between them by tacit
understanding.
Implied contracts are sometimes subdivided into
those “implied in fact”
and those “implied
in law,” the former being
covered by the definition just given, while the latter are obligations
imposed upon a person by the law, not in pursuance of his intention and
agreement, either expressed or implied, but even against his will and
design, because the circumstances between the parties are
such as to
render it just that the one should have a right, and the other a
corresponding liability, similar to those which would arise from a
contract between them.
However, in regard to implied contracts,
Black’s
continues:
“But obligations
of this kind are not
properly contracts at all, and should not be so
denominated. There can be no true contract without a
mutual and
concurrent intention of the parties. Such obligations are more properly
described as ‘quasi contracts.’
” Union
Life Ins. Co. v. Glasscock, 270 Ky. 750,
110 S.W.2d 681, 686, 114 A. L.R. 373.
Now, on to the second item in our discussion. In the circum- stance
where a law or ordinance is unconstitutional, a person
has a right of avoidance, the right not to be
compelled or obli- gated to follow such law or ordinance. If you doubt
this, read the following court ruling with the intention of finding
within it any obligation which might limit your right to travel
unrestricted:
“A state cannot
impose restrictions on the acceptance of a license that will deprive
the licensee of his constitutional
rights.” Ruckenbrod
v. Mullins, 102 Utah 548, 133
P.2d. 325, 144 ALR 839
What that ruling essentially expresses is that as one of the
“People” under the Constitution, you have the right
to avoid performance under any unconstitutional law (private law)
passed by any state
or federal legislature. The state cannot unilaterally abrogate a right
or convert your unalienable right to travel unrestricted by any code or
ordinance into a crime.
It is just
that simple! However, you need to know how to assert this right or it
will be denied you!
If you would like to learn more about concepts of law so you
can avoid
the whole mess without having to “appear” in court,
you can download our free ebook
Common
Law Remedy To
Beat Traffic Tickets and learn about the secrets that the
courts and
legal profession don’t want you to know.
_________________
If you’d like to learn more about the law and how it can
serve you, don’t hesitate to check out our
Articles
on Traffic Law
section. Discover some of the secrets of law that you’ve
never been taught!
The
laws sometimes sleep,
but never die.