03/27/86 The City of Spokane, v. Julie Anne Port,
[Editor's note: footnotes (if any) trail the opinion]
[1] COURT OF APPEALS OF WASHINGTON, DIVISION THREE
[2] The City of Spokane, Respondent,
v.
[3] Julie Anne Port, Petitioner
[4] No. 6927-3-III
[5] 716 P.2d 945, 43 Wash. App. 273
[6] March 27, 1986
[7] Reconsideration Denied May 5, 1986. Petition for Review Denied
by Supreme Court July 8, 1986.
[8] SYLLABUS
[9] Nature of Action: Prosecution for driving without a valid
operator's license and for resisting arrest.
[10] District Court: The Spokane Municipal Department of the Spokane
County District Court, Nos. 84-103018, 84-103680, Richard F. Wrenn, J.,
on September 20, 1984, entered a judgment on a verdict of guilty.
[11] Superior Court: The Superior Court for Spokane County, No.
84-1-00811-4, Thomas E. Merryman, J., on February 4, 1985, affirmed the
judgment.
BLUE BOOK CITATION FORM: 1986.WA.116 (http://www.versuslaw.com)
[12] APPELLATE PANEL:
[13] McInturff, J. Green, C.J., and Thompson, J., concur.
[14] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCINTURFF
[15] 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.
[16] 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.
[17] 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, 58 L. Ed. 2d 435, 99 S. Ct. 471 (1978); United States v.
Guest, 383 U.S. 745, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966); Kent v.
Dulles, 357 U.S. 116, 2 L. Ed. 2d 1204, 78 S. Ct. 1113 (1958).*fn1 This
fundamental constitutional right applies both to interstate and
intrastate travel. Compare Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed.
2d 600, 89 S. Ct. 1322 (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.
[18] 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 rev. 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 C.J.S. Privilege (1951 & Supp.
1985) with 77 C.J.S. 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), appeal dismissed, 416 U.S. 964 (1974);
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. Court, 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, 86 L. Ed. 21, 62 S. Ct.
24 (1941). In Reitz, the United States Supreme Court examined the
privilege to travel on our public streets and highways and concluded, in
314 U.S. at 36:
[19] 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.
[20] See also Hendrick v. Maryland, 235 U.S. 610, 59 L. Ed. 385, 35
S. Ct. 140 (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).
[21] 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; RCW 46.20.021. This is a
reasonable and justifiable exercise of the police power.
[22] 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, 71 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, at 377. 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, at 376.
[23] 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; RCW
46.20.021, we hold 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. See, e.g., Gordon v. State, 108
Idaho 178, 697 P.2d 1192, 1193 (Ct. App.), appeal dismissed, U.S. ,
88 L. Ed. 2d 29, 106 S. Ct. 35 (1985), reh'g denied, U.S. , 88 L.
Ed. 2d 912, 106 S. Ct. 874 (1986).
[24] 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.
[25] 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
Social & Health Serv., 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, at 16;
Harding v. Warren, 30 Wash. App. 848, 850, 639 P.2d 750 (1982).
[26] 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 Title 46. See, e.g., In re
Arambul, 37 Wash. App. 805, 807-08, 683 P.2d 1123 (1984).
[27] The judgment of the Superior Court is affirmed.
[28] CASE RESOLUTION
[29] Holding that requiring a driver's license in order to operate a
car was a valid exercise of the police power, the court affirms the
judgment.
***** BEGIN FOOTNOTEHERE *****
[30] *fn1 See also Edwards v. California, 314 U.S. 160, 177, 86 L.
Ed. 119, 62 S. Ct. 164 (1941) (Douglas, J., concurring); Twining v. New
Jersey, 211 U.S. 78, 97, 53 L. Ed. 97, 29 S. Ct. 14 (1908); Williams v.
Fears, 179 U.S. 270, 274, 45 L. Ed. 186, 21 S. Ct. 128 (1900); Crandall
v. Nevada, 73 U.S. (6 Wall.) 35, 18 L. Ed. 744 (1867).
[31] *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. Ct. App. 1985); Department 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. A
[32] *fn3 The fifth amendment to the United States Constitution
provides:
[33] "No person shall be . . . deprived of life, liberty, or
property, without due process of law . . ."
***** END FOOTNOTEHERE *****
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19860327
1986.WA.116