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:

“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.