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716 P.2d 945
CITY OF SPOKANE, Respondent,
Julie Anne PORT, Petitioner.
Court of Appeals of Washington,
Division 3, Panel Four.
March 27, 1986.
Julie Anne Port, pro se.
James C. Sloane, City Atty. by Michael Nelson, City Pros.,
Spokane, for respondent.
We are asked to determine whether RCW 46.20.021 and Spokane Municipal Code
16.20.021, requiring a motor vehicle operator to be licensed, unconstitutionally
restrict one's right to travel.
On July 7, 1984, Spokane police officer Michael Heinen observed a motor vehicle,
operated by Julie Anne Port, proceed through a steady red traffic control light
in downtown Spokane. The officer stopped the vehicle and asked Ms. Port for
her driver's license no less than six times. After she refused to respond to
these requests, Ms. Port was arrested and cited for refusal to give information
or cooperate with an officer, no valid operator's license, and resisting arrest.
Spokane Municipal Code 10.07.030, .050, 16.20.021. The first of these charges
was dropped prior to trial. After a District Court jury found Ms. Port guilty
on both counts, she appealed to the Superior Court, which affirmed the conviction.
This court granted discretionary review.
Ms. Port contends RCW 46.20.021 and Spokane Municipal Code 16.20.021 are unconstitutional
as applied to her because they improperly restrict her right to travel upon
the public highways. It is well settled that the United States Constitution
protects an individual's right to travel, although it is not always clear which
constitutional provision affords the protection. See Califano v. Aznavorian,
439 U.S. 170, 175, 99 S.Ct. 471, 474, 58 L.Ed.2d 435 (1978); United States
v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); Kent v. Dulles,
357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958). [FN1] This fundamental
constitutional right applies both to interstate and intrastate travel. Compare
Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (interstate
travel) with Macias v. Department of Labor & Indus., 100 Wash.2d 263, 272,
668 P.2d 1278 (1983), and Eggert v. Seattle, 81 Wash.2d 840, 505 P.2d 801 (1973)
(intrastate travel). Freedom of movement is at the heart of our scheme of values,
for it may be as keen an interest of the individual as the choice of what he
reads, says, eats or wears.
FN1. See also, Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 177, 86
L.Ed. 119 (1941) (Douglas, J., concurring); Twining v. New Jersey, 211 U.S.
78, 97, 29 S.Ct. 14, 53 L.Ed. 97 (1908); Williams v. Fears, 179 U.S. 270, 274,
21 S.Ct. 128, 129, 45 L.Ed. 186 (1900); Crandall v. Nevada, 73 U.S. 35, 6 Wall.
35, 18 L.Ed. 744 (1867).
Ms. Port attempts to extend this fundamental rule, alleging she has a right,
rather than privilege, to operate a motor vehicle upon public highways and
streets. Consequently, she claims RCW 46.20.021 is unconstitutional as it makes
the exercise of that purported right a crime. "Right" and "privilege" have
assumed a variety of meanings, depending upon the context in which they are
used. As used here, "privilege" means a qualified right or a particular
advantage enjoyed by a class, beyond the common advantages of other citizens,
Black's Law Dictionary 1077 (5th ed. 1979); see also R. Pound, Readings on
the History and Systems of the Common Law 468 (3d ed. 1927), whereas "right" connotes
an interest belonging to every person. Black's Law Dictionary at 1190; Pound,
at 467-68; Compare 72 CJS Privilege (1951 & Supp.1985) with 77 CJS Right
(1952 & Supp.1985). Hence, driving an automobile on our state's public
highways is a privilege and not a right because the activity is limited to
a certain class of individuals, generally those over the age of 16 years, who
have passed a driver's license examination. RCW 46.20.031; .120. [FN2] This
privilege is always subject to such reasonable regulation and control as the
proper authorities see fit to impose under the police power in the interest
of public safety and welfare. See State v. Scheffel, 82 Wash.2d 872, 880, 514
P.2d 1052 (1973) (one does not have an absolute constitutional right to a particular
mode of travel); Crossman v. Department of Licensing, 42 Wash.App. 325, 328
n. 2, 711 P.2d 1053 (1985) (privilege to drive not a "fundamental right");
State ex rel. Juckett v. Evergreen Dist. Ct., 32 Wash.App. 49, 55, 645 P.2d
734 (1982) (driver's license is privilege granted by State). This is because
the right to a particular mode of travel is no more than an aspect of the "liberty" protected
by the Due Process Clause of the Fifth Amendment. [FN3] See Reitz v. Mealey,
314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21 (1941). In Reitz, the United States Supreme
Court examined the privilege to travel on our public streets and highways and
concluded, at 314 U.S. 36, 62 S.Ct. 26-27:
FN2. Virtually every state addressing this issue concludes that the license
to drive an automobile is a privilege which may be extended to individuals
under certain circumstances. E.g., State v. Svendrowski, 692 S.W.2d 348, 349
(Mo.App.1985); Texas Dept. of Pub. Safety v. Schaejbe, 687 S.W.2d 727, 728
(Tex.1985); State v. Coyle, 14 Ohio App.3d 185, 470 N.E.2d 457, 458 (1984);
Hanson v. State, 673 P.2d 657, 658 (Wyo.1983); Mackler v. Alexis, 130 Cal.App.3d
44, 181 Cal.Rptr. 613, 622-23 (1982); State ex rel. Hjelle v. A Motor Vehicle
etc., 299 N.W.2d 557, 562 (N.D.1980); Smith v. Cox, 609 P.2d 1332, 1333 (Utah
1980); cf., Gordon v. State, 108 Idaho 178, 697 P.2d 1192, 1193 (Ct.App.) appeal
dismissed, --- U.S. ---, 106 S.Ct. 35, 88 L.Ed.2d 29 (1985), reh'g denied,
--- U.S. ---, 106 S.Ct. 874, 88 L.Ed.2d 912 (1986) (whether termed right or
privilege, one's ability to travel on public highways is subject to reasonable
regulation by the state).
FN3. The fifth amendment to the United States Constitution provides: "No
person shall be ... eprived of life, liberty, or property, without due
process of law."
Any appropriate means adopted by the states to insure competence and care
on the part of its licensees and to protect others using the highway is consonant
with due process. See also, Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140,
59 L.Ed. 385 (1915) (states may rightfully prescribe uniform regulations necessary
for public safety and order in the operation upon its highways of motor vehicles
and, it may require the licensing of drivers).
Here, RCW 46.20.021 requires a license to drive or operate a motor vehicle
upon our state highways. Licensing is a means by which the state may determine
whether vehicle operators have acquired a minimal standard of competence. Mandating
driver competence is a public purpose within the police power of the state
because it furthers the interests of public safety and welfare. It is designed
to improve the safety of our highways and to protect and enhance the well-being
of the residents and visitors of our state. RCW 46.01.011; 46.20.021. This
is a reasonable and justifiable exercise of the police power.
As previously noted, Ms. Port does not allege the license requirement is unconstitutional
in all circumstances. She believes the State should issue a "certificate
of competence" rather than a driver's license. Ms. Port claims she is
constitutionally entitled to this special status because she is not engaged
in commercial travel. She relies principally upon quotations from Thompson
v. Smith, 155 Va. 367, 154 S.E. 579, 72 A.L.R. 604 (1930), and Chicago v. Banker,
112 Ill.App. 94 (1904). Although the Thompson court declared the right to travel
public highways an individual's "common right which he has under his right
to enjoy life and liberty," the court also noted that the exercise of
such a common right may be regulated under the City's police power if in the
interest of public safety and welfare. Thompson, 154 S.E. at 583. The City
driver's license revocation ordinance at issue in Thompson was upheld except
to the extent it granted broad discretion to the City's chief of police to
revoke licenses. "The issuance and revocation of such [driving] permits
by a city is merely a means of exercising the police power of the State delegated
to the city to regulate the use of the public highways in the interest of the
public safety and welfare." Thompson, 154 S.E. at 583.
Nor do we find persuasive Chicago v. Banker, supra, where the court determined
the requirement of a driver license unfairly burdens one who uses his automobile
for private business and pleasure. The court conditioned the ability to drive
a motor vehicle upon driving which would not interfere "with the safety
of others." Chicago v. Banker, supra at 99. Furthermore, the issuance
of a "certificate of competence" would change only the name, not
the substance, of what is currently known as a "driver's license" since
one cannot obtain such unless driving proficiency has been demonstrated. Because
our State has determined that driver education and licensing examinations enhance
the ability of drivers and the safety of our highways, RCW 46.01.011, 46.20.021,
we hold that the statute here is a reasonable regulation furthering the public
safety and welfare. Only by lifting statements from context and by ignoring
difficult language does Ms. Port make Thompson and Banker and other cases support
her position. Providing similar examples from other cases cited by Ms. Port
would only unnecessarily lengthen this opinion.
Lastly, Ms. Port claims the State licensing statute applies only to commercial
operators of motor vehicles. She claims since she was not engaged in the business
of transportation, she did not violate the act. An unambiguous statute is not
subject to construction; there is no need to resort to dictionary definitions.
Vita Food Prods., Inc. v. State, 91 Wash.2d 132, 134, 587 P.2d 535 (1978);
Adams v. Department of Soc. & Health Servs., 38 Wash.App. 13, 16, 683 P.2d
1133 (1984); State v. Hayes, 37 Wash.App. 786, 788, 683 P.2d 237 (1984). An
ambiguous term is one that is susceptible to more than one meaning. Adams,
38 Wash.App. at 16, 683 P.2d 1133; Harding v. Warren, 30 Wash.App. 848, 850,
639 P.2d 750 (1982).
The statute in question, RCW 46.20.021, reads: "No person ... may drive
any motor vehicle upon a highway in this state unless the person has a valid
driver's license issued under the provisions of this chapter." Ms. Port's
argument that this provision requires a license only for those operating commercial
vehicles is clearly without merit. RCW 46.04.370 eliminates any alleged ambiguity
with respect to the violation here because the section defines an operator
or driver as "every person who drives or is in actual physical control
of a vehicle." Since Ms. Port was in actual physical control of her vehicle
when stopped, she came under the provisions of RCW 46. See, e.g., In re Arambul,
37 Wash.App. 805, 807-08, 683 P.2d 1123 (1984).
The judgment of the Superior Court is affirmed.
GREEN, C.J., and THOMPSON, J., concur.
to Tax Protestor Exhibit