a brief synopsis of the right to travel

8/7/2019 A BRIEF SYNOPSIS OF THE RIGHT TO TRAVEL

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A BRIEF SYNOPSIS OF THE RIGHT TO TRAVEL (with references)Selected excerpts from:

BLACKSTONES COMMENTARIES on the LAWS of ENGLANDBOOK THE FIRST. OF THE RIGHTS OF PERSONS. CHAPTER THEFIRST. OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.

PERSONS also are divided by the law into either natural persons, orartificial [persons]. Natural persons are such as the God of natureformed us: artificial are such as created and devised by human lawsfor the purposes of society and government; which are calledcorporations or bodies politic.THE rights of persons considered in their natural capacities are also oftwo sorts, absolute, and relative. Absolute, which are such asappertain and belong to particular men, merely as individuals or singlepersons: relative, which are incident to them as members of society,and standing in various relations to each other. The first, that is,

absolute rights, will be the subject of the present chapter.BY the absolute rights of individuals we mean those which are so intheir primary and strictest sense; such as would belong to theirpersons merely in a state of nature, and which every man is entitled toenjoy whether out of society or in it. But with regard to the absoluteduties, which man is bound to perform considered as a mereindividual, it is not to be expected that any human municipal lawsshould at all explain or enforce them. For the end and intent of suchlaws being only to regulate the behavior of mankind, as they aremembers of society, and stand in various relations to each other, theyhave consequently no business or concern with any but social or

relative duties. Let a man therefore be ever so abandoned in hisprinciples, or vicious in his practice, provided he keeps his wickednessto himself, and does not offend against the rules of public decency, heis out of the reach of human laws. But if he makes his vices public,though they be such as seem principally to affect himself, (asdrunkenness, or the like) they then become, by the bad example theyset, of pernicious effects to society; and therefore it is then thebusiness of human laws to correct them. Here the circumstance ofpublication is what alters the nature of the case. Public sobriety is arelative duty, and therefore enjoined by our laws: private sobriety isan absolute duty, which, whether it be performed or not, humantribunals can never know; and therefore they can never enforce it by

any civil sanction. But, with respect to rights, the case is different.Human laws define and enforce as well those rights which belong to aman considered as an individual, as those which belong to himconsidered as related to others.FOR the principal aim of society is to protect individuals in theenjoyment of those absolute rights, which were vested in them by theimmutable laws of nature; but which could not be preserved in peacewithout that mutual assistance and intercourse, which is gained by the


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institution of friendly and social communities. Hence it follows, that thefirst and primary end of human laws is to formation of states andsocieties: so that to maintain and regulate these, is clearly asubsequent consideration. And therefore the principal view of humanlaws is, or ought always to be, to explain, protect, and enforce suchrights as are absolute, which in themselves are few and simple; and,then, such rights as are relative, which arising from a variety ofconnections, will be far more numerous and more complicated. Thesewill take up a greater space in any code of laws, and hence mayappear to be more attended to, though in reality they are not, than therights of the former kind. Let us therefore proceed to examine how farall laws ought, and how far the laws of England actually do, take noticeof these absolute rights, and provide for their lasting security.THE absolute rights of man, considered as a free agent, endowed withdiscernment to know good from evil, and with power of choosing thosemeasures which appear to him to be most desirable, are usuallysummed up on one general appellation, and denominated the natural

liberty of mankind. This natural liberty consists properly in a power ofacting as one thinks fit, without any restraint or control, unless by thelaw of nature: being a right inherent in a us by birth, and one of thegifts of God to man at his creation, when he endowed him with thefaculty of freewill.THIS natural life being, as was before observed, [is] the immediatedonation of the great creator.Selected excerpts from:BLACKSTONES COMMENTARIES on the LAWS of ENGLANDBOOK I. CHAPTER THE EIGHTEENTH.OF CORPORATIONS.

WE have hitherto considered persons in their natural capacities, andhave treated of their rights and duties. But, as all personal rights diewith the person; and, as the necessary forms of investing a series ofindividuals, one after another, with the fame identical rights, would bevery inconvenient, if not impracticable; it has been found necessary,when it is for the advantage of the public to have any particular rightskept on foot and continued, to constitute artificial persons, who maymaintain a perpetual succession, and enjoy a kind of legal immortality.THESE artificial persons are called bodies politic, bodies corporate,(corpora corporata) or corporations: of which there is a great varietysubsisting, for the advancement of religion, of learning, and ofcommerce.

THE first division of corporations is into aggregate and sole.Corporations aggregate consist of many persons united together intoone society, and are kept up by a perpetual succession of members, soas to continue forever: of which kind are the mayor and commonaltyof a city, the head and fellows of a college, the dean and chapter of acathedral church. Corporations sole consist of one person only and hissuccessors, in some particular station, who are incorporated by law, inorder to give them some legal capacities and advantages, particularly


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that of perpetuity, which in their natural persons they could not havehad. In this sense the king is a sole corporation: so is a bishop: and sois every parson and vicar.ANOTHER division of corporations, either sole or aggregate, is intoecclesiastical and lay. Ecclesiastical corporations are where themembers that compose it are entirely spiritual persons; such asbishops; certain deans, and prebendaries; all archdeacons, parsons,and vicars; which are sole corporations: deans and chapters at presentand formerly prior and convent, abbot and monks, and the like, bodiesaggregate. These are erected for the furtherance of religion, and theperpetuating the rights of the church. Lay corporations are of twosorts, civil and eleemosynary. The civil are such as are erected for avariety of temporal purposes.I. CORPORATIONS, by the civil law, seem to have been created by themere act, and voluntary association of their members; provided suchconvention was not contrary to law,ALL the other methods therefore whereby corporations exist, by

common law, by prescription, and by act of parliament, are for themost part reducible to this of the king's letters patent, or charter ofincorporation.WHEN a corporation is erected, name must be given it; and by thatname alone it must sue, and be sued, and do all legal acts; . . . and bythat same name the king baptizes the incorporationTHERE are also certain privileges and disabilities that attend anaggregate corporation, and are not applicable to such as are sole; thereason of them ceasing, and of course the law. It must always appearby attorney; for it cannot appear in person, being, as sir Edward Cokesays [10 Rep. 32.], invisible, and existing only in intendment and

consideration of law. It can neither maintain, or be made defendant,to, an action of battery or such like personal injuries; for a corporationcan neither beat, nor be beaten, in its body politic.

Selected excerpts from:COMMENTARIES on the LAWS of ENGLAND (Sir William Blackstone)Vol. III, 301DILATORY PLEAS are,

1. To the jurisdiction of the court: alleging, that it ought not to holdplea of this injury, it arising in Wales or beyond sea; or because theland in question is of ancient demesne, and ought only to bedemanded in the lord's court, &c.2. To the disability of the plaintiff, by reason whereof he is incapable tocommence or continue the suit; as, that he is an alien enemy,outlawed, excommunicated, attainted of treason or felony, under a


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praemunire, not in rerum natura (being only a fictitious person), aninfant, a feme-covert, or a monk professed.3. In abatement: which abatement is either of the writ, or the count,for some defect in one of them; as by misnaming the defendant, whichis called a misnomer; giving him a wrong addition, as esquire insteadof knight; or other want of form in any material respect. Or, it may be,that the plaintiff is dead; for the death of either party is at once anabatement of the suit. And in actions merely personal, arising exdelicto, for wrongs actually done or committed by the defendant, astrespass, battery, and slander, the rule is that actionpersonalismoritur cum persona; and it never shall be revived either by or againstthe executors or other representatives. For neither the executors ofthe plaintiff have received, nor those of the defendant havecommitted, in their own personal capacity, any manner of wrong orinjury. But in actions arising ex contractu, by breach of promise andthe like, where the right descends to the representatives of theplaintiff, and those of the defendant have assets to answer the

demand, though the suits shall abate by the death of the parties, yetthey may be revived against or by the executors: being indeed ratheractions against the property than the person, in which the executorshave now the fame interest that their testator had before.

Selected excerpts from:BLACKS LAW DICTIONARYJurisdiction over the person is obtained by the legal service of a validprocess issued out of a court of competent jurisdiction in a case orproceeding properly pending, or by some party voluntarily appearing,or by his seeking, taking or agreeing to some act or step in theproceeding or action to his benefit, or to the detriment of the other

party, other than by one contesting the jurisdiction over his persononly. Pleas based on lack of jurisdiction of the person are in theirnature pleas in abatement and find no especial favor in the law. Theyamount to no more than the declaration of the defendant that he hashad actual notice, is actually before the court in a proper action, butfor the informality in the service of process, is not legally before thecourt.


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This is purely a dilatory plea and when a defendant is seeking to availhimself on it, he must, for very obvious reasons, stand upon his nakedlegal right and seek nothing further than an injunction upon his plea,then, by logic of the fact, he must necessarily have waived irregularityof his summons before the court. Here is one reason for the well-settled rule that if a defendant wished to insist upon the objection thathe is not in court for want of jurisdiction over his person, he mustspecially appear for that purpose only, and must keep out for all otherpurposes except to make that objection. So it is well-settled that if adefendant, under such circumstances, raises any other question, orasks for any relief which can be granted under the hypothesis that thecourt has jurisdiction over his person, his appearance is general,though termed special, and he thereby submits to the jurisdiction ofthe court as completely as if he had been regularly served with asummons. A court cannot, by presuming to act, invest itself with

jurisdiction. Therefore it is proper to inquire into the record, but solelyto determine that question.

No court or tribunal can acquire jurisdiction by the mere assertion of itor where the facts on which jurisdiction depends are falsely alleged.[Mulligan v. Smith, 59 Cal. 206, 236 (1881)]. Jurisdiction in anyproceeding is conferred by the constitution or by statute, and anymode thereby prescribed for the acquisition of jurisdiction must bestrictly complied with. Jurisdiction in any particular case may involvethree aspects jurisdiction over the cause or subject matter,

jurisdiction over the parties (in personam), and jurisdiction over thething, or res, if any (in rem).Jurisdiction over the person may be acquired in several ways, the mostcommon being service of process. Thus, by statutory provision, the

court in which an action is pending has jurisdiction over the party fromthe time summons is served upon him as provided by statute,continuing throughout subsequent proceedings in the action.Numerous cases have reiterated the principle that (in personam)

jurisdiction of the person is acquired on due service of the summonsand a copy of the complaint, or from the publication of the summons iscomplete, or on voluntary general appearance. The purpose ofpersonal service of notice or summons is to apprise a defendant of thecommencement of an action against him and of its nature, so thatwithin a specified time he may act with reference thereto. However,

jurisdiction in a civil case cannot be obtained over one who is forcefullybrought within the territorial limits of the court.

The words answer and appear are not synonymous. To construethe word answer as including every appearance would amount to

judicial legislation, which is beyond the authority of the court. Theanswer of the defendant shall contain: (1) A general or specific denialof the material allegations of the complaint controverter by thedefendant. (2) A statement of any new matter constituting a defenseor counterclaim. A defendant appears in any action when he answers,demurs, or gives plaintiff written notice of his appearance, or when an


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attorney gives notice of an appearance for him. This makes it plainthat, although an answer is an appearance, an appearance is notnecessarily an answer. [Schultz v. Schultz, 70 Cal.App.2d 293, 298-299, 161 P.2d 36]

Appearance is defined by Blacks Law Dictionary to be: A coming intocourt as a party to a suit, either in person or by an attorney, whetheras a plaintiff or defendant; the formal proceeding by which adefendant submits himself to the jurisdiction of the court. In civilactions the parties do not normally appear in person, but ratherthrough their attorney (who enters their appearance by filing writtenproceedings, or a formal written entry of appearance). Also, at manystages of criminal proceedings, particularly involving minor offenses,the defendants attorney appears in his behalf. [See e.g.,Fed.R.Crim.P. 43]An appearance may be either general or special, the former is a simpleand unqualified or unrestricted submission to the jurisdiction of the

court, the latter a submission to the jurisdiction of the court for somespecific purpose only, not for the purposes of the suit. A specialappearance is for the purpose of testing or objecting to the jurisdictionof the court over the defendant without submitting to such jurisdiction;a general appearance is made where the defendant waives defects ofservice and submits to the jurisdiction of the court. [Insurance Co. ofNorth America v. Kunin, 175 Neb. 260, 121 N.W.2d 372, 375-376]

General Appearance is defined by Blacks Law Dictionary: Consent tothe jurisdiction of the court and a waiver of all jurisdictional defectsexcept the competency of the court. [Johnson v. Zoning Bd. Of

Appeals of Town of Branford, 166 Conn. 102, 347 A.2d 53 @ p. 56.]

An appearance by defendant in an action that has the effect of waivingany threshold defenses of lack of territorial authority to adjudicate orlack of notice.

A special appearance is a device used under civil rules to contestexistence of personal jurisdiction. A defendant making a specialappearance has to take care to avoid any inconsistent action thatmight serve to waive jurisdictional objection and convert the specialappearance into a general appearance. The rules of civil procedurealso permit the defendant to contest the existence of personal

jurisdiction and to contest the merits of the action as well. In a civilaction, a court acquires personal jurisdiction over a defendant by the

service of process upon the defendant within the forum.


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Selected excerpts from:CONSTITUTION OF THECOMMONWEALTH OF MASSACHUSETTS

PART THE FIRSTA Declaration of the Rights of the Inhabitantsof the Commonwealth ofMassachusetts.

Article IV. The people of this commonwealth have the sole and

exclusive right of governing themselves, as a free, sovereign, andindependent state; and do, and forever hereafter shall, exercise andenjoy every power, jurisdiction, and right, which is not, or may nothereafter, be by them expressly delegated to the United States ofAmerica in Congress assembled.Article V. All power residing originally in the people, and being derivedfrom them, the several magistrates and officers of government, vestedwith authority, whether legislative, executive, or judicial, are theirsubstitutes and agents, and are at all times accountable to them.

Selected excerpts from:MASSACHUSETTS RULES OF CIVIL PROCEDURE

Rule 9: Pleading Special Matters(a) Capacity. It is not necessary to aver the capacity of a party to sueor be sued or the authority of a party to sue or be sued in arepresentative capacity or the legal existence of an organizedassociation of persons that is made a party. When a party desires toraise an issue as to the legal existence of any party or the capacity ofany party to sue or be sued or the authority of a party to sue or besued in a representative capacity, he shall do so by specific negative


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averment, which shall include such supporting particulars as arepeculiarly within the pleader's knowledge.(b) Fraud, Mistake, Duress, Undue Influence, Condition of the Mind. Inall averments of fraud, mistake, duress or undue influence, thecircumstances constituting fraud, mistake, duress or undue influenceshall be stated with particularity. Malice, intent, knowledge, and othercondition of mind of a person may be averred generally.Rule 11: Commencement of Action(b) Appearances.(3) No appearance shall, of itself, constitute a general appearance.Rule 12: Defenses and Objections - When and How Presented - ByPleading or Motion - Motion for Judgment on Pleadings(b) How Presented. Every defense, in law or fact, to a claim for reliefin any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if oneis required, except that the following defenses may at the option of thepleader be made by motion:

(1) Lack of jurisdiction over the subject matter;(2) Lack of jurisdiction over the person;(3) Improper venue;(4) Insufficiency of process;(5) Insufficiency of service of process;(6) Failure to state a claim upon which relief can be granted.(7) Failure to join a party under Rule 19;(8) Misnomer of a party;(9) Pendency of a prior action in a court of the Commonwealth;(10) Improper amount of damages in the Superior Court as set forth inG. L. c. 212, 3 or in the District Court as set forth in G. L. c. 218,

19.Rule 17: Parties Plaintiff and Defendant: Capacity(a) Real Party in Interest. Except for any action brought under GeneralLaws, chapter 152, section 15, every action shall be prosecuted in thename of the real party in interest. An executor, administrator,guardian, conservator, bailee, trustee of an express trust, a party withwhom or in whose name a contract has been made for the benefit ofanother, or a party authorized by statute may sue in his own namewithout joining with him the party for whose benefit the action isbrought; and when a statute so provides, an action for the use orbenefit of another shall be brought in the name of the Commonwealth.An insurer who has paid all or part of a loss may sue in the name of

the assured to whose rights it is subrogated. No action shall bedismissed on the ground that it is not prosecuted in the name of thereal party in interest until a reasonable time has been allowed afterobjection for ratification of commencement of the action by, or joinderor substitution of, the real party in interest; and such ratification,

joinder, or substitution shall have the same effect as if the action hadbeen commenced in the name of the real party in interest.


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American Jurisprudence 2d Series, Volume 16A, CONSTITUTIONALLAW 576. Right to travelThe constitutional right to travel includes the freedom to enter andabide in any state in the Union.[36]

While the freedom to travel within the United States has been held tobe a basic right under the Federal Constitution which is independent ofa specific provision therein,[38] the right of locomotion has also beenheld to be a part of the liberty guaranteed by the due processclauses.[39]

Thus, the Supreme Court has stated that the liberty secured by theDue Process Clause of the Fourteenth Amendment consists, in part, inthe right of a person to live and work where he or she will.[42][36]Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106S.Ct. 2317, 90 L.Ed.2d 899, 40 Empl. Prac. Dec. (CCH)

36158(1986).

The right of a United States citizen to travel from one state toanother and to take up residence in the state of his or her choice isprotected by the Federal Constitution. Jones v. Helms, 452 U.S. 412,101 S.Ct. 2434, 69 L.Ed.2d 118 (1981).[38] [16B Am.Jur.2d,] 612, 613[39] U.S. v. Lamb, 385 U.S. 475, 87 S.Ct. 574, 17 L.Ed.2d 526(1967).

Even though one may not have a constitutional right to be in acertain place, the government may not prohibit one from going thereunless by means consonant with due process of law. Cafeteria andRestaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S.

886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), reh

g denied, 368 U.S.869, 82 S.Ct. 22, 7 L.Ed.2d 70 (1961).[42] Jacobson v. Commonwealth ofMassachusetts, 197 U.S. 11, 25S.Ct. 358, 99 L.Ed. 643 (1905);

Booth v. People of State of Illinois, 184 U.S. 425, 22 S.Ct. 425,46 L.Ed. 623 (1902);

Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186(1900) (also stating that the right to move from one place to anotheraccording to inclination is an attribute of personal liberty).

American Jurisprudence 2d Series, Volume 16A, CONSTITUTIONALLAW

577. Rights in public vehicles and placesUnder the constitutional guarantee of liberty one may, under normalcircumstances, move at his or her own inclination along the publichighways or in public places, and while conducting himself in anorderly and decent manner, neither interfering with nor disturbinganother

s rights, one will be protected, not only in his or her person,but in his or her safe conduct.[52]


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For example, the right of a citizen to drive on a public street withfreedom from police interference, unless he or she is engaged insuspicious conduct associated in some manner with criminality, is afundamental constitutional right.[53]

A person is free to live on the street, if that person chooses to do so; aperson may not be held against [his or] her will merely to improve [hisor] her standard of living or because society may find it uncomfortableto see such people on the street.[60]

[52] Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579 (1889); City ofSt. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30 (1908) (loitering on thestreet)[53] People v. Horton, 14 Cal.App.3d 930, 92 Cal.Rptr. 666 (5th Dist.1971).[60]Abney v. U.S., 451 A.2d 78 (D.C. 1982), related reference, 616A.2d 856 (D.C. 1992);

In re Long, 237 Ill.App.3d 105, 180 Ill.Dec. 182, 606 N.E.2d1259 (2d Dist. 1992) and cert denied, 149 Ill.2d 650, 183 Ill. Dec.

861, 612 N.E.2d 513 (1993).American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,AND BRIDGES 227 GenerallyStreets and highways are established and maintained primarily forpurposes of travel by the public,[1] and incidental uses.[2]

the use of highways for purposes of travel and transportation is nota mere privilege, but a common and fundamental right,[3]

Because bridges constitute a part of the highways,[7] they aresubject to the same public easement of passage.[8][1] Birmingham Ry., Light & Power Co. v. Smyer, 181 Ala. 121, 61 So.

354 (1913);Escobedo v. State Dept. ofMotor Vehicles, 35 Cal.2d 870, 222P.2d 1 (1950)

(overruled on other grounds by, Rios v. Cozens, 7 Cal.3 792, 103Cal.Rptr. 299, 499 P.2d 979 (1972));

Yale University v. City of New Haven, 104 Conn. 610, 134 A. 268,47 A.L.R. 667 (1926);

Smith v. City ofJefferson, 161 Iowa 245, 142 N.W. 220 (1950);Terrell v. Tracy, 312 Ky. 631, 229 S.W.2d 433 (1950);Brenning v. Remington, 136 Neb. 883, 287 N.W. 776 (1939);Ex Parte Duncan, 1937 OK 155, 179 Okla. 355, 65 P.2d 1015

(1937);

City of Radford v. Calhoun, 165 Va. 24, 181 S.E. 345, 100 A.L.R.1378 (1935);

Ex Parte Dickey, 76 W.Va. 576, 85 S.E. 781 (1915);Park Hotel Co. v. Ketchum, 184 Wis. 182, 199 N.W. 219, 33 A.L.R.

351 (1924).[2] 249 et seq.[3] Campbell v. Superior CourtIn and ForMaricopa County, 106 Ariz.542, 479 P.2d 685 (1971);


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Escobedo v. State Dept. ofMotor Vehicles, 35 Cal.2d 870, 222P.2d 1 (1950)

(overruled on other grounds by, Rios v. Cozens, 7 Cal.3 792, 103Cal.Rptr. 299, 499 P.2d 979 (1972));

Duff v. State, 546 S.W.2d 283 (Tex. Crim.App. 1977);Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604

(1930);Blumenthal v. City of Cheyenne, 64 Wyo. 75, 186 P.2d 556

(1947).[8] Gellasch v. Van Syckle, 267 Mich. 378, 255 N.W. 345 (1934).

American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,AND BRIDGES 228 Right of all to useThe existence of a public highway creates a public easement of travel,which permits the general traveling public to use the highway at will.[1]All persons have an equal right to use the highways for purposes oftravel by proper means, and with due regard for the corresponding

rights of others.

[2]

The right to use them is not restricted to the citizensof the municipality[3] or the state.[4][1] Town of Ridgefield v. Eppoliti Realty Co., Inc., 71 Conn.App. 321,801 A.2d 902 (2002);

The public highway created by operation of law along everysection line is more than a right of way over which a public highwaymay be established; it is a passage or road that every citizen has aright to use. Douville v. Christensen, 2002 SD 33, 641 N.W.2d 651(S.D. 2002).[2] State v. Mayo, 106 Me. 62, 75 A. 595 (1909);

Omaha & Council Bluffs St. Ry. Co. v. City of Omaha, 114 Neb.483, 208 N.W. 123 (1926);

Dent v. Oregon City, 106 Or. 122, 211 P. 909 (1923);Bombard v. Newton, 94 Vt. 354, 111 A. 510, 11 A.L.R. 1402

(1920);Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604

(1930).A traveler is privileged to enter that part of the land in the

possession of another upon which there is a public highway, to the


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extent his or her presence there is in the reasonable use of thehighway. Restatement Second, Torts 192.[3] Ex Parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172 (1920);

Wilmot v. City of Chicago, 328 Ill. 552, 160 N.E. 206, 62 A.L.R.394 (1927);

New York State Public Employees Federation, AFL-CIO v. City ofAlbany, 269 A.D.2d 707, 703 N.Y.S.2d 573 (3d Dept 2000);

Parker v. City of Silverton, 109 Or. 298, 220 P. 139, 31 A.L.R. 589(1923);

Norfolk & P. Traction Co. v. City of Norfolk, 11 Va. 169, 78 S.E.545 (1912);

Yarrow First Associates v. Town of Clyde Hill, 66 Wash.2d 371,403 P.2d 49 (1965).[4] County Comrs of Charles County v. Stevens, 229 Md. 203, 473A.2d 12 (1984).

American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,

AND BRIDGES 230 Superior rights of publicStreets and highways are primarily for the benefit of the travelingpublic, and only incidentally for the benefit of property owners alongthem.[2]

American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,AND BRIDGES 231 Manner of use

The public easement of passage over a highway or street includesevery kind of travel and communication for the transportation ofpersons or property that is reasonable and proper.[1] The easement ofthe public in a highway is not limited to the particular methods of usein vogue when the easement was acquired, but includes all methodsthat are later developed,[2] which are assumed to have beencontemplated.[3]

[1] Yale University v. City of New Haven, 104 Conn. 610, 134 A. 268,47 A.L.R. 667 (1926);

People ex rel. Mather v. Marshall Field & Co., 266 Ill. 609, 107N.E. 864 (1915);

Hall v. Lea County Elec. Co-op., 78 N.M. 792, 438 P.2d 632(1968);

Sumner County v. Interurban Transp. Co., 141 Tenn. 493, 213S.W. 412, 5 A.L.R. 765 (1919);


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this great and glorious principle, that the people are the sovereign ofthis country nothing but the free course of Constitutional law andGovernment can ensure the continuance and enjoyment of them.[479]

PENHALLOW v. DOANES ADMINISTRATORS (1795) (3 Dallas)3 US 54

sovereignty resides in the great body of the people [93]It has been properly observed that a court cannot by its own decisiongive itself jurisdiction where it had none [95] usurpation can give noright [109]

MARBURY v. MADISON (1803) (1Cranch 170) 5 US 137an act of the legislature repugnant to the constitution is void.

McCULLOCK v. MARYLAND (1819) (4

Wheaton) 17 US 316The government proceeds directly from the people

COHENS v. VIRGINIA (1821) (6Wheaton) 19 US 264We [the Court] have no more right to decline the exercise of

jurisdiction which is given, than to usurp that which is not given. Theone or the other would be treason to the constitution. [309]The people of the United States are the sole sovereign authority of thiscountry. [347]The people made the constitution, and the people can unmake it. It is

the creature of their will, and lives only by their will. [389]

THOMPSON v. TOLMIE (1829) (2Peters) 27 US 157If there is a total want of jurisdiction, the proceedings are void and amere nullity, and confer no right and afford no justification and may berejected when collaterally drawn in question. [163]UNITED STATES v. THE AMISTAD (1841) (15Peters) 40 US 518they were natives of Africa, and were born free, and ever since hadbeen, and still of right were and ought to be, free [525]born free, and ever since have been, and still of right are free . . .

influenced by the desire of recovering their liberty [529]They are in a State where they are presumed to be free. [551]the obligation to surrender was not deemed to exist [553]all men being presumptively free [559]born free . . . a right to be everywhere regarded as free . . . [562]born free, and still, of right, ought to be free, [589]


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THE PASSENGER CASES (1849) (7 Howard)7 How. 283

We are all citizens of the United States; and, as members of the samecommunity, must have the right to pass and repass through every partof it without interruption

DRED SCOTT v. SANDFORD (1856) (19Howard) 60 US 393

The words "people of the United States" and "citizens" aresynonymous terms, and mean the same thing. They both describe thepolitical body who, according to our republican institutions, form thesovereignty and who hold the power and conduct the Governmentthrough their representatives. They are what we familiarly call the"sovereign people," and every citizen is one of this people, and aconstituent member of this sovereignty. [404]

PENNOYER v. NEFF (1878)95 US 714

the validity of every judgment depends upon the jurisdiction of thecourt before it is rendered, not upon what may occur subsequently.[728]. . . if the court has no jurisdiction over the person of the defendant . .. , and consequently no authority to pass upon his personal rights andobligations; if the whole proceeding, without service upon him or hisappearance, is coram non judice and void; if to hold a defendantbound by such a judgment is contrary to the first principles of justice.

[732]

YICK WO v. HOPKINS (1886)118 US 356

Sovereignty itself is, of course, not subject to law, for it is the authorand source of law; but, in our system, while sovereign powers aredelegated to the agencies of government, sovereignty itself remainswith the people, by whom and for whom all government exists andacts.NORTON v. SHELBY COUNTY (1886)

118 US 425An unconstitutional act is not a law; it confers no rights; it imposes no

duties; it affords no protection; it creates no office; it is, in legalcontemplation, as inoperative as though it had never been passed.

HALE v. HENKEL (1906)201 US 43

The individual may stand upon his constitutional rights as a citizen. Heis entitled to carry on his private business in his own way. His rightsare such as existed by the law of the land long antecedent to the


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organization of the state, . . . He owes nothing to the public so long ashe does not trespass upon their rights. Upon the other hand, thecorporation is a creature of the state. Its powers are limited by law.

BYARS v. UNITED STATES (1927)273 US 28

'. . . it is the duty of courts to be watchful for the constitutional rightsof the citizen, and against any stealthy encroachments thereon.'

UNITED STATES v. MURDOCK (1933)290 US 389

The [Supreme] Court has recognized that the word "willfully" generallyconnotes a voluntary, intentional violation of a known legal duty. Ithas formulated the requirement of willfulness as "bad faith or evilintent,"

McNUTT v. G.M.A.C. (1936)

298 US 178

The prerequisites to the exercise of jurisdiction are specifically defined,They are conditions which must be met by the party who seeks theexercise of jurisdiction in his favor. He must allege in his pleading thefacts essential to show jurisdiction. If he fails to make the necessaryallegations, he has no standing. If he does make them, an inquiry intothe existence of jurisdiction is obviously for the purpose of determiningwhether the facts support his allegations. The authority which thestatute vests in the court to enforce the limitations of its jurisdictionprecludes the idea that jurisdiction may be maintained by mere

averment If his allegations of jurisdictional facts are challenged by hisadversary in any appropriate manner, he must support them bycompetent proof. the jurisdictional facts be established, or the case bedismissed,

KVOS, Inc. v. ASSOCIATED / UNITED PRESS (1936)299 US 269

A motion to dismiss a bill of complaint for want of jurisdiction . . .requires the trial court to inquire as to its jurisdiction

SPIES v. UNITED STATES (1943)317 US 492

. . . the word "willfully" . . . generally connotes a voluntary,intentional violation of a known legal duty. "It is not the purpose of thelaw to penalize frank difference of opinion or innocent errors madedespite the exercise of reasonable care."


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MURDOCK v. PENNSYLVANIA (1943)

319 US 105

A state may not impose a charge for the enjoyment of a right grantedby the federal constitution. [113] Freedom of press, freedom ofspeech, freedom of religion are in a preferred position. [115] Theprivilege in question exists apart from state authority. It is guaranteedthe people by the federal constitution. [115]

MILLER v. U.S. (5th Circuit) (1956)230 F.2d. 486

The claim and exercise of a constitutional right cannot thus beconverted into a crime.

STAUB v. BAXLEY (1958)355 US 313

. . . an ordinance which makes the peaceful enjoyment of freedomswhich the Constitution guarantees contingent upon the uncontrolledwill of an official - as by requiring a permit or license which may begranted or withheld in the discretion of such official - is anunconstitutional censorship or prior restraint upon the enjoyment ofthose freedoms."

KENT v. DULLES (1958)357 US 116

"The right to travel is a part of the `liberty' of which the citizen cannotbe deprived without due process of law under the Fifth Amendment

NAACP v. ALABAMA (1958)357 US 449

Like the right of association, [the right to travel freely] is a virtuallyunconditional personal right, guaranteed by the Constitution to us all.

APHTHEKER v. SECRETARY OF STATE (1964)378 US 500

. . . a personal liberty protected by the Bill of Rights . . . freedom oftravel is a constitutional liberty closely related to rights of free speechand association . . . "The constitutional right to travel . . . has been

firmly established and repeatedly recognized . . . that a right soelementary was conceived from the beginning . . . In any event,freedom to travel throughout the United States has long beenrecognized as a basic right under the Constitution."

UNITED STATES v. GUEST (1966)383 US 745


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The constitutional right to travel . . . is a right that has been firmlyestablished and repeatedly recognized . . . a right so elementary wasconceived from the beginning . . . In any event, freedom to travelthroughout the United States has long been recognized as a basic rightunder the Constitution."

MIRANDA v. ARIZONA (1966)384 US 436

Where rights secured by the Constitution are involved, there can be norule making or legislation which would abrogate them.

UNITED STATES v. JACKSON (1968)390 US 570

If a law has "no other purpose . . . than to chill the assertion ofconstitutional rights by penalizing those who choose to exercise them,then it [is] patently unconstitutional.

SHUTTLESWORTH v. BIRMINGHAM (1969)394 US 147

. . . our decisions have made clear that a person faced with . . . anunconstitutional licensing law may ignore it and engage with impunityin the exercise of the right . . . for which the law purports to require alicense.

SHAPIRO v. THOMPSON (1969)394 US 618

. . . freedom to travel is an element of the "liberty" secured by [the

Due Process Clause of the Fifth Amendment]

BRADY v. UNITED STATES (1970)397 US 742

Waivers of constitutional rights not only must be voluntary but mustbe knowing, intelligent acts done with sufficient awareness of therelevant circumstances and likely consequences.

UNITED STATES v. BISHOP (1973)412 US 346

The Court, in fact, has recognized that the word "willfully" in thesestatutes generally connotes a voluntary, intentional violation of a

known legal duty. It has formulated the requirement of willfulness as"bad faith or evil intent,". . . If his action was not willful, he was [not]guilty . . .

UNITED STATES v. WILL (1980)449 US 200


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Citing Cohens v Virginia: We [the Court] have no more right to declinethe exercise of jurisdiction which is given than to usurp that which isnot given. The one or the other would be treason to the constitution.SUMMARYThe Nature of Free Men and Their Relationship to GovernmentPersons also are divided by the law into either natural persons, orartificial. [BLACKSTONES COMMENTARIES on the LAWS of ENGLAND.BOOK THE FIRST. OF THE RIGHTS OF PERSONS. CHAPTER THE FIRST.OF THE ABSOLUTE RIGHTS OFINDIVIDUALS.]Natural persons are such as the God of nature formed us [persons intheir natural capacities]. [BLACKSTONES COMMENTARIES on theLAWS of ENGLAND. BOOK THE FIRST. OF THE RIGHTS OF PERSONS.CHAPTER THE FIRST. OF THE ABSOLUTE RIGHTS OFINDIVIDUALS.]Man is the workmanship of his all perfect Creator. [Chisholm v.Georgia, 2 US (2 Dallas) 419 (1793)]This natural life being, as was before observed, [is] the immediatedonation of the great creator. [BLACKSTONES COMMENTARIES on the

LAWS of ENGLAND. BOOK THE FIRST. OF THE RIGHTS OF PERSONS.CHAPTER THE FIRST. OF THE ABSOLUTE RIGHTS OFINDIVIDUALS.]God created man, and endowed him with certain unalienable rights.[The unanimous Declaration of the Thirteen united States of America].The absolute rights of man [are the] natural liberty of mankind.[BLACKSTONES COMMENTARIES on the LAWS of ENGLAND. BOOKTHE FIRST. OF THE RIGHTS OF PERSONS. CHAPTER THE FIRST. OFTHE ABSOLUTE RIGHTS OFINDIVIDUALS.]By the absolute rights of individuals we mean those which are so intheir primary and strictest sense; such as would belong to theirpersons merely in a state of nature, and which every man is entitled to

enjoy whether out of society or in it. [BLACKSTONES COMMENTARIESon the LAWS of ENGLAND. BOOK THE FIRST. OF THE RIGHTS OFPERSONS. CHAPTER THE FIRST. OF THE ABSOLUTE RIGHTS OFINDIVIDUALS.]His rights are such as existed by law long before the existence of thegovernment. [BLACKSTONES COMMENTARIES on the LAWS ofENGLAND. BOOK THE FIRST. OF THE RIGHTS OF PERSONS. CHAPTERTHE FIRST. OF THE ABSOLUTE RIGHTS OFINDIVIDUALS.]The principal aim of society is to protect individuals in the enjoymentof those absolute rights, which were vested in them by the immutablelaws of nature. [BLACKSTONES COMMENTARIES on the LAWS ofENGLAND. BOOK THE FIRST. OF THE RIGHTS OF PERSONS. CHAPTER

THE FIRST. OF THE ABSOLUTE RIGHTS OFINDIVIDUALS.]To secure these rights, man created government. [The unanimousDeclaration of the Thirteen united States of America].A State is the work of Man, but Man [is] the work of God. [Chisholm v.Georgia, 2 US (2 Dallas) 419 @ 462-463 (1793)]Government proceeds directly from the people. [McCullock v.Maryland , 17 US (4 Wheaton) 316(1819)]


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Government is the inferior contrivance of man. [Chisholm v. Georgia, 2US (2 Dallas) 419 (1793)]Government is subordinate to the people, by whom and for whom allgovernment exists and acts.[Yick Wo v. Hopkins, 118 US 356 (1886)]The people are the sole sovereign authority of this country. [Cohens v.Virginia, 19 US (6 Wheaton) 264 (1821)]Every citizen is one of this people and a constituent member of thissovereignty.[Dred Scott v. Sandford, 60 US (19 Howard) 393 (1856)]The sovereign, when traced to his source, must be found in the man.[Chisholm v. Georgia, 2 US (2 Dallas) 419 @ 458 (1793)]Sovereignty itself is not subject to law, for it is the author and sourceof law. [Yick Wo v. Hopkins, 118 US 356 (1886)]All men are presumably free, and everywhere regarded as free, andinfluenced by the desire of recovering their liberty have no obligationto surrender. [United States v. The Amistad, 40 US (15 Peters) 518

(1841)]An individual may stand upon his rights as a citizen. He is entitled tocarry on his private business in his own way.[Hale v. Henkel, 201 US43 (1906)]Where Constitutional rights are involved, there can be no rule makingor legislation which would abrogate them. [Miranda v. Arizona, 384 US436 (1966)]Exercise of a constitutional right cannot be converted into a crime.[Miller v. U.S., 230 F.2d. 486 (5th Circuit)(1956)]An act of the legislature repugnant to the constitution is void.[Marbury v. Madison, 5 US 137 (1 Cranch 170)(1803)]

An unconstitutional act is not a law; it is as inoperative as though ithad never been passed.[Norton v. Shelby County, 118 US 425 (1886)]

Freedom to TravelFreedom to travel is an element of constitutional liberty, of which thecitizen cannot be deprived.[Shapiro v. Thompson, 394 US 618 (1969); Kent v. Dulles, 357 US116 (1958)]The right to travel is a virtually unconditional personal right. [NAACP v.

Alabama, 357 US 449 (1958)]

Freedom to travel throughout the United States has long beenrecognized as a basic right under the Constitution. [Aphtheker v.Secretary of State, 378 US 500(1964)]The freedom to travel within the United States has been held to be abasic right under the Federal Constitution which is independent of aspecific provision therein.[American Jurisprudence 2d Series, Volume 16A, CONSTITUTIONAL


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LAW, 576. Right to travel][16B Am.Jur.2d,] 612, 613The constitutional right to travel has been firmly established andrepeatedly recognized.[United States v. Guest, 383 US 745 (1966)]Waivers of constitutional rights must be voluntary, knowing, intelligentacts done with sufficient awareness of the relevant circumstances andlikely consequences. [Brady v. United States, 397 US 742 (1970)]

The right of a citizen to drive on a public street with freedom frompolice interference, unless he or she is engaged in suspicious conductassociated in some manner with criminality, is a fundamentalconstitutional right.[American Jurisprudence 2d Series, Volume 16A, CONSTITUTIONALLAW, 577. Rights in public vehicles and places]People v. Horton, 14 Cal.App.3d 930, 92 Cal.Rptr. 666 (5th Dist. 1971).Citizens have the right to pass and re-pass through every part of the

country without interruption.[The Passenger Cases, 7 Howard 283 (1849)]Under the constitutional guarantee of liberty one may, under normalcircumstances, move at his or her own inclination along the publichighways or in public places, and while conducting himself in anorderly and decent manner, neither interfering with nor disturbinganothers rights, one will be protected, not only in his or her person,but in his or her safe conduct.[American Jurisprudence 2d Series, Volume 16A, CONSTITUTIONALLAW, 577. Rights in public vehicles and places]Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579 (1889); City of St.

Louis v. Gloner, 210 Mo. 502, 109 S.W. 30 (1908) (loitering on thestreet)

The Relationship Between Agent and PrincipalAll power residing originally in the people, and being derived fromthem, the several magistrates and officers of government, vested withauthority, whether legislative, executive, or judicial, are theirsubstitutes and agents, and are at all times accountable to them.[Constitution of the Commonwealth ofMassachusetts, Article V.]Agents . . . [are] consider[ed] as nominal parties, and that the realparties are their principals.[Penhallow v. Doanes Administrators, 3 U.S. 54, 1 L.Ed. 57 (1795)]

The State/Agent [municipal corporation] is not a Real Party in Interest.[Mass.R.Civ.P. 17(a)]

The State/Agent [municipal corporation] has no capacity to bring theaction. [Mass.R.Civ.P. 9(a)]

The Nature of a Corporation or Body Politic


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Artificial [persons] are such as created and devised by human laws forthe purposes of society and government; which are called corporationsor bodies politic [municipal corporations]. [BLACKSTONESCOMMENTARIES on the LAWS of ENGLAND. BOOK THE FIRST. OF THERIGHTS OF PERSONS. CHAPTER THE FIRST. OF THE ABSOLUTERIGHTS OFINDIVIDUALS.]THESE artificial persons are called bodies politic, [or] bodies corporate.[BLACKSTONES COMMENTARIES on the LAWS of ENGLAND. BOOKI.CHAPTER THE EIGHTEENTH. OF CORPORATIONS.]When a corporation is erected, name must be given it; and by thatname alone it must sue, and be sued, and do all legal acts; . . . and bythat same name the king baptizes the incorporation.[BLACKSTONES COMMENTARIES on the LAWS of ENGLAND. BOOKI.CHAPTER THE EIGHTEENTH. OF CORPORATIONS.]A corporation is a creature of the state.[A corporation] must always appear by attorney; for it cannot appear

in person, being invisible, and existing only in intendment and

consideration of law. It can neither maintain, or be made defendant,to, an action of battery or such like personal injuries; for a corporationcan neither beat, nor be beaten, in its body politic.[BLACKSTONES COMMENTARIES on the LAWS of ENGLAND. BOOKI.

CHAPTER THE EIGHTEENTH. OF CORPORATIONS.]The State/Agent [municipal corporation] is an artificial person.[Chisholm v. Georgia, 2 US (2 Dallas) 419 @ 455 (1793)]The State/Agent [municipal corporation] is not In Rerum Natura (ThePlaintiff is not natural). [3 Bl. Comm. 301]

*Every government and any agency thereof is an artificial person

(imaginary).

*Government can interface only with artificial persons.

*The imaginary, having neither actuality nor substance, is foreclosedfrom creating and attaining parity with the tangible. [There can be no

joinder between an artificial person and a natural person.]

*The legal manifestation of this is that no government, as well as anylaw, agency, aspect, court, etc. thereof, can concern itself withanything other than corporate, artificial persons and the contractsbetween them.

*These four sentences have been attributed to Hagans v Lavine, 415US 528 (1974). A thorough reading of the case fails to reveal thesephrases (thanks to Richie the Notary for pointing this out). Afterdisseminating information that these cites cannot be found there,numerous websites now attribute Penhallow v. Doane's Administrators,3 US 54 (1795) or Cruden v. Neale, 2 N.C. 338, 2 S.E. 70 (1796).They were not found in those decisions either. It seems to have beenregurgitated ad nauseum on the internet without verification. Some


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opinion is now circulating that this is a "bogus quote." These words ofwisdom make sense, are well-written, and are consistent with otherdecisions. They must have originated somewhere, but the origin hasbeen very elusive. Since our goal is to be able to substantiate everyreference cited, the search will continue. These four sentences are themissing pieces of the In Rerum Natura NOTICE OF SPECIALAPPEARANCE procedure. The procedure is sufficient without them, butit's a little bit like driving around with a missing hubcap. If anyone canauthoritatively cite the source (including page number), pleasedisseminate the information on [email protected] of Highways, Streets and BridgesStreets and highways are primarily for the benefit of the travelingpublic.[American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,

AND BRIDGES, 230 Superior rights of public]Streets and highways are established and maintained primarily forpurposes of travel by the public.

[American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,AND BRIDGES, 227 Generally]Birmingham Ry., Light & Power Co. v. Smyer, 181 Ala. 121, 61 So.354 (1913);Escobedo v. State Dept. ofMotor Vehicles, 35 Cal.2d 870, 222 P.2d 1(1950)

(overruled on other grounds by, Rios v. Cozens, 7 Cal.3 792, 103Cal.Rptr. 299, 499 P.2d 979 (1972));Yale University v. City of New Haven, 104 Conn. 610, 134 A. 268, 47A.L.R. 667 (1926);Smith v. City ofJefferson, 161 Iowa 245, 142 N.W. 220 (1950);

Terrell v. Tracy, 312 Ky. 631, 229 S.W.2d 433 (1950);Brenning v. Remington, 136 Neb. 883, 287 N.W. 776 (1939);Ex Parte Duncan, 1937 OK 155, 179 Okla. 355, 65 P.2d 1015 (1937);City of Radford v. Calhoun, 165 Va. 24, 181 S.E. 345, 100 A.L.R. 1378(1935);Ex Parte Dickey, 76 W.Va. 576, 85 S.E. 781 (1915);Park Hotel Co. v. Ketchum, 184 Wis. 182, 199 N.W. 219, 33 A.L.R.351 (1924).The existence of a public highway creates a public easement of travel,which permits the general traveling public to use the highway at will.[American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,

AND BRIDGES , 228 Right of all to use]

Town of Ridgefield v. Eppoliti Realty Co., Inc., 71 Conn.App. 321, 801A.2d 902 (2002);

The public highway created by operation of law along everysection line is more than a right of way over which a public highwaymay be established; it is a passage or road that every citizen has aright to use. Douville v. Christensen, 2002 SD 33, 641 N.W.2d 651(S.D. 2002).


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The public easement of passage over a highway or street includesevery kind of travel and communication for the transportation ofpersons or property that is reasonable and proper.[American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,

AND BRIDGES, 231 Manner of use]Yale University v. City of New Haven, 104 Conn. 610, 134 A. 268, 47A.L.R. 667 (1926);People ex rel. Mather v. Marshall Field & Co., 266 Ill. 609, 107 N.E.864 (1915);Hall v. Lea County Elec. Co-op., 78 N.M. 792, 438 P.2d 632 (1968);Sumner County v. Interurban Transp. Co., 141 Tenn. 493, 213 S.W.412, 5 A.L.R. 765 (1919);McClintock v. Richlands Brick Corp., 152 Va. 1, 145 S.E. 425, 61 A.L.R.1033 (1928).

Bicycles have a recognized place on the highways and areexpressly authorized by statute to use most public ways.Opinion of the Justices to the Senate, 370 Mass. 895, 352 N.E.2d 197

(1976).Horse-drawn carriages, horseback riders, cyclists, and pedestrians

are equally entitled the use of the highways with motor vehicles.Matson v. Dawson, 185 Neb. 686, 178 N.W.2d 588 (1970).The easement of the public in a highway is not limited to the particularmethods of use in vogue when the easement was acquired, butincludes all methods that are later developed.[American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,

AND BRIDGES, 231 Manner of use]Yale University v. City of New Haven, 104 Conn. 610, 134 A. 268, 47A.L.R. 667 (1926);

People ex rel. Mather v. Marshall Field & Co., 266 Ill. 609, 107 N.E.864 (1915);Hall v. Lea County Elec. Co-op., 78 N.M. 792, 438 P.2d 632 (1968);Sumner County v. Interurban Transp. Co., 141 Tenn. 493, 213 S.W.412, 5 A.L.R. 765 (1919);McClintock v. Richlands Brick Corp., 152 Va. 1, 145 S.E. 425, 61 A.L.R.1033 (1928).Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 62 So. 712(1913)

(overruled on other grounds by, City of Orange Beach v.Benjamin, 821 So.2d 193 (Ala. 2001));McClintock v. Richlands Brick Corp., 152 Va. 1, 145 S.E. 425, 61 A.L.R.

1033 (1928).All persons have an equal right to use the highways for purposes oftravel by proper means, and with due regard for the correspondingrights of others.[American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,

AND BRIDGES , 228 Right of all to use]State v. Mayo, 106 Me. 62, 75 A. 595 (1909);Omaha & Council Bluffs St. Ry. Co. v. City of Omaha, 114 Neb. 483,


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208 N.W. 123 (1926);Dent v. Oregon City, 106 Or. 122, 211 P. 909 (1923);Bombard v. Newton, 94 Vt. 354, 111 A. 510, 11 A.L.R. 1402 (1920);Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604 (1930).The right to use them is not restricted to the citizens of themunicipality or the state.[American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,

AND BRIDGES , 228 Right of all to use]Ex Parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172 (1920);Wilmot v. City of Chicago, 328 Ill. 552, 160 N.E. 206, 62 A.L.R. 394(1927);New York State Public Employees Federation, AFL-CIO v. City of

Albany, 269 A.D.2d 707, 703 N.Y.S.2d 573 (3d Dept 2000);Parker v. City of Silverton, 109 Or. 298, 220 P. 139, 31 A.L.R. 589(1923);Norfolk & P. Traction Co. v. City of Norfolk, 11 Va. 169, 78 S.E. 545(1912);

Yarrow First Associates v. Town of Clyde Hill, 66 Wash.2d 371, 403P.2d 49 (1965).County Commissioners of Charles County v. Stevens, 229 Md. 203,473 A.2d 12 (1984).The use of highways for purposes of travel and transportation is acommon and fundamental right.[American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,

AND BRIDGES, 227 Generally]Campbell v. Superior CourtIn and ForMaricopa County, 106 Ariz. 542,479 P.2d 685 (1971);Escobedo v. State Dept. ofMotor Vehicles, 35 Cal.2d 870, 222 P.2d 1

(1950)(overruled on other grounds by, Rios v. Cozens, 7 Cal.3 792, 103Cal.Rptr. 299, 499 P.2d 979 (1972));Duff v. State, 546 S.W.2d 283 (Tex. Crim.App. 1977);Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604 (1930);Blumenthal v. City of Cheyenne, 64 Wyo. 75, 186 P.2d 556 (1947).Because bridges constitute a part of the highways,they are subject tothe same public easement of passage.[American Jurisprudence 2d Series, Volume 39, HIGHWAYS, STREETS,

AND BRIDGES, 227 Generally]Gellasch v. Van Syckle, 267 Mich. 378, 255 N.W. 345 (1934).

Licensing RequirementsRequiring a permit or license is an unconstitutional censorship or priorrestraint upon those freedoms.[Staub v. Baxley, 355 US 313 (1958)]When the state imposes a charge for the enjoyment of a right, it ispatently unconstitutional.


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[Murdock v. Pennsylvania, 319 US 105 (1943); United States v.Jackson, 390 US 570(1968)]A person faced with an unconstitutional licensing law may ignore itwith impunity and exercise the right. [Shuttlesworth v. Birmingham,394 US 147 (1969)]

The Element of WilfullnessThe word "willfully" generally connotes a voluntary, intentionalviolation of a known legal duty.[United States v. Murdock, 290 US 389 (1933); Spies v. United States,317 US 492 (1943); United States v. Bishop, 412 US 346 (1973)]It [the Supreme Court] has formulated the requirement of willfulnessas "bad faith or evil intent."[United States v. Murdock, 290 US 389 (1933)]If his action was not willful, he was [not] guilty. [United States v.Bishop, 412 US 346 (1973)]

Jurisdiction of the CourtJurisdiction in personam. Power which a court has over the defendantsperson and which is required before a court can enter a personal or in

personam judgment.[BLACKS LAW DICTIONARY] [Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed.565 (1878)]

Specifically defined prerequisites must be met by the party who seeksthe exercise of jurisdiction in his favor.[McNutt v. G.M.A.C., 298 US 178 (1936)]

[The moving party, Plaintiff] must allege in his pleading the factsessential to show jurisdiction.[McNutt v. G.M.A.C., 298 US 178 (1936)]If he fails to make the necessary allegations, he has no standing.[McNutt v. G.M.A.C., 298 US 178 (1936)]The jurisdictional facts must be established, or the case be dismissed.[McNutt v. G.M.A.C., 298 US 178 (1936)]A motion to dismiss for want of jurisdiction requires the trial court toinquire as to its jurisdiction.[KVOS, Inc. v. Associated / United Press, 299 US 269 (1936)]No court or tribunal can acquire jurisdiction by the mere assertion of itor where the facts on which jurisdiction depends are falsely alleged.

[Mulligan v. Smith, 59 Cal. 206, 236 (1881)] Jurisdiction in anyproceeding is conferred by the constitution or by statute, and anymode thereby prescribed for the acquisition of jurisdiction must bestrictly complied with. Jurisdiction in any particular case may involvethree aspects jurisdiction over the cause or subject matter,

jurisdiction over the parties (in personam), and jurisdiction over thething, or res, if any (in rem). [BLACKS LAW DICTIONARY]


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A court cannot by its own decision give itself jurisdiction where it hadnone; usurpation can give no right.[Penhallow v. Doanes Administrators, 3 U.S. 54, 1 L.Ed. 57 (1795)]The validity of every judgment depends upon the jurisdiction of thecourt. [Pennoyer v. Neff, 95 US 714 (1878)]Where there is an absence of jurisdiction, all administrative and

judicial proceedings are a nullity.[Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 382; Griffith v. Frazier, 8 Cr.9, 3 L.Ed. 471]If there is a total want of jurisdiction, the proceedings are void.[Thompson v. Tolmie, 27 US (2 Peters) 157 (1829)]Judgment of court lacking jurisdiction is void. [Burnham v. SuperiorCourt of California, County ofMarin, 110 S.Ct. 2105 (1990)]

To hold a defendant bound by such a judgment is contrary to the firstprinciples of justice.

[Pennoyer v. Neff, 95 US 714 (1878)]A court of justice, indeed, ought at its peril to take notice of its own

jurisdiction.[Penhallow v. Doanes Administrators, 3 U.S. 54, 1 L.Ed. 57 (1795)]

Special Pleadings

An appearance may be either general or special, the former is a simpleand unqualified or unrestricted submission to the jurisdiction of thecourt, the latter a submission to the jurisdiction of the court for somespecific purpose only, not for the purposes of the suit. A specialappearance is for the purpose of testing or objecting to the jurisdictionof the court over the defendant without submitting to such jurisdiction;a general appearance is made where the defendant waives defects ofservice and submits to the jurisdiction of the court. [BLACKS LAWDICTIONARY] [Insurance Co. of North America v. Kunin, 175 Neb.260, 121 N.W.2d 372, 375-376]No appearance shall, of itself, constitute a general appearance.[Mass.R.Civ.P. 11(b)(3)]

A special appearance is a device used under civil rules to contestexistence of personal jurisdiction.[BLACKS LAW DICTIONARY]Jurisdiction can be challenged at any time, even on finaldetermination.[Basso v. Utah Power & Light Co., 495 P.2d 906 @ p. 910]


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A defendant making a special appearance has to take care to avoidany inconsistent action that might serve to waive jurisdictionalobjection and convert the special appearance into a generalappearance.[BLACKS LAW DICTIONARY]If a defendant wished to insist upon the objection that he is not incourt for want of jurisdiction over his person, he must specially appearfor that purpose only. [BLACKS LAW DICTIONARY]A special appearance is purely a dilatory plea. [BLACKS LAWDICTIONARY]Dilatory pleas are Special Pleadings. [Mass.R.Civ.P. Rule 9]Dilatory pleas are, (1) to the jurisdiction of the court: (2) to thedisability of the plaintiff (i.e.: notIn Rerum Natura - being only afictitious person), or (3) in abatement.[COMMENTARIES on the LAWS of ENGLAND (Sir William Blackstone)Vol. III, 301]

Pleas based on lack of jurisdiction of the person [Mass.R.Civ.P. 12(b)(2)] are in their nature pleas in abatement. [BLACKS LAWDICTIONARY]Abatement is either of the writ, or the count, for some defect in one ofthem; as by misnaming the defendant, which is called a [commercial]misnomer [Mass.R.Civ.P. 12(b) (8)]; or other want of form in anymaterial respect. [COMMENTARIES on the LAWS of ENGLAND (SirWilliam Blackstone) Vol. III, 301]

Duty of the Court

The Courts must be watchful against any stealthy encroachments uponthe citizens constitutional rights.[Byars v. United States, 273 US 28 (1927)]

[The] Party having superior knowledge who takes advantage ofanothers ignorance of the law to deceive him by studied concealmentor misrepresentation can be held responsible for that conduct.Fina Supply, Inc. v. Abilene National Bank, 726 S.W.2d 537 (1987)]

When circumstances impose duty to speak and one deliberatelyremains silent, silence is equivalent to false representation.[FisherControls International, Inc. v. Gibbons, 911 S.W.2d 135 (1995)]

Civil Liability for Abuse of ProcessA judge must be acting within his jurisdiction as to subject matter andperson [in personam jurisdiction] , to be entitled to immunity fromcivil actions for his acts.[Davis v. Burris, 51 Ariz. 220, 75 P.2d 689(1938)]


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When a judge knows that he lacks jurisdiction, or acts in the face ofclearly valid statutes expressly depriving him of jurisdiction, judicialimmunity is lost.[Rankin v. Howard, 633 F.2d 844 (1980)]

When a judicial officer acts entirely without jurisdiction or withoutcompliance with jurisdictional requisites he may be held civilly liablefor abuse of process even though his act involved a decision made ingood faith, that he had jurisdiction.[Little v. U.S. Fidelity & GuarantyCo., 217Miss. 576, 64 So.2d 697]

Public officials, whether governors, mayors or police, legislators orjudges, who fail to make decisions when they are needed or who donot act to implement decisions when they are made do not fully andfaithfully perform the duties of their offices. And . . . there is noabsolute immunity.[Scheuer v. Rhodes, 416 U.S. 232 (1974)] [Citing: Monroe v. Pape,365 U.S. 167 (1961)

Oath of OfficeEvery state legislator and executive and judicial officer is solemnlycommitted by oath taken pursuant to Art. VI, cl. 3 to support thisConstitution. [18] No state legislator or executive or judicial officercan war against the Constitution without violating his solemn oath tosupport it. [18] To yield to such a claim would be to enthronelawlessness, and lawlessness, if not checked, is the precursor ofanarchy. [22] For those in authority thus to defy the law of the land is

profoundly subversive not only of our constitutional system, but of thepresuppositions of a democratic society. [22] The State must . . .yield to an authority that is paramount to the State. [22] Every act ofgovernment may be challenged by an appeal to law, as finallypronounced by this [Supreme] Court. [23][Cooper v. Aaron, 358 U.S. 1 @ p. 18, 22, 23 (1958)]

All offices Legislative, Executive, and Judicial, both of the States and ofthe Union, are bound by oath to support it [the Constitution][Chisholm v. Georgia, 2 US (2 Dallas) 419 @ 468 (1793)]

Usurpation of Jurisdiction[The Court] have no more right to decline the exercise of jurisdictionwhich is given, than to usurp that which is not given. The one or theother would be treason against the constitution.[United States v. Will, 449 U.S. 200 (1980)] [Citing: Cohens v.Virginia, 19 U.S. 264 (1821)]


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Penalties for Treason and Misprision of Treason (State)

Whoever commits treason against the commonwealth shall bepunished by imprisonment in the state prison for life.[MassachusettsGeneral Laws, ch. 264 CRIMES AGAINST GOVERNMENTS, 2 Penaltyfor treason.]

Whoever, having knowledge of the commission of treason, concealsthe same and does not as soon as may be disclose and make knownsuch treason to the governor, or to a justice of the supreme judicial orsuperior court, shall be guilty of misprision of treason, and shall bepunished by a fine of not more than one thousand dollars or byimprisonment in the state prison for not more than five years, or in jailfor not more than two years.[Massachusetts General Laws, ch. 264

CRIMES AGAINST GOVERNMENTS, 3 Misprision of treason; penalty.]

Penalties for Treason and Misprision of Treason (Federal)

Whoever, owing allegiance to the United States, levies war againstthem or adheres to their enemies, giving them aid and comfort withinthe United States or elsewhere, is guilty of treason and shall sufferdeath, or shall be imprisoned not less than five years and fined underthis title but not less than $10,000; and shall be incapable of holdingany office under the United States.[Treason. Title 18 United States

Code 2381]

Whoever, owing allegiance to the United States and havingknowledge of the commission of any treason against them, concealsand does not, as soon as may be, disclose and make known the sameto the President or to some judge of the United States, or to thegovernor or to some judge or justice of a particular State, is guilty ofmisprision of treason and shall be fined under this title or imprisonednot more than seven years, or both.[Misprision of Treason. Title 18United States Code 2382]

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