Vehicle Code Remedy

[Ownmaster]

(c) Motorcycles. Each motorcycle shall have one of the following finishes:

(1) Entirely white; or


(2) The sides of the tank and fenders shall be white or the fenders may be entirely white or entirely black; the remaining portions of the motorcycle, which normally receive a painted or enameled finish, shall be black, white, or a combination of black and white, except that these surfaces may have a sharply contrasting accent color overlaying the predominant black and/or white background.


<General Materials (GM) - References, Annotations, or Tables>


Note: Authority cited: Section 2402, Vehicle Code. Reference: Section 40800, Vehicle Code.


As we can see the commissioner completely failed to do his job to assign “a” “any one” color to the special patrol cars. However that is what he should have done. There is no language for “a color or two” in 40800 CVC (California Vehicle Code). Thus when the commissioner assigns Black, White, and any contracting color, he blew it. Evidently the commissioner thinks that “any” somehow clears up “a”. I agree on that part. I disagree that he has the authority to make that substitution.

So I believe that there needs to be a rule or regulation which explains the term “motor vehicle” so as to leave no doubt and to exclude all else.




http://www.oal.ca.gov/pdfs/What_Is_a_Regulation.pdf

WHAT MUST BE ADOPTED PURSUANT TO THE APA?

Not every statute requires the adoption of an implementing regulation. In this regard, it is useful to think about three types of statutory provisions:
self-executing--wholly-enabling--susceptible to interpretation.
A self-executing provision is so specific that no implementing or interpreting regulation is necessary to give it effect. An example is a statutory provision that provides: “The annual licensing fee is $500.”
In contrast, a wholly-enabling statutory provision is one that has no legal effect without the enactment of a regulation. An example is a statute that provides: “The department may set an annual licensing fee up to $500.” This type of statute cannot be legally enforced without a regulation setting the fee. The third type, a statutory provision that is susceptible to interpretation, may be enforced without a regulation, but may need a regulation for its efficient enforcement. An example is a statute that provides: “There shall be adequate space between hospital beds.” Conceptually, this statute could be enforced on a case-by-case basis, but such enforcement would probably present significant
difficulties. (It does not violate the APA to enforce or administer a statute on a case-by-case basis so long as no rule or standard of general application is used that should have been adopted pursuant to the APA.)

[Ownmaster]

The term person always used and still uses “Shall include.” Why did the legislature abandon this wording for the term “motor vehicle”? Try to find out, that is the point of this essay. The author thinks it is because the state was shifting a “private” commercial business license obligation for those engaged in business to the term “motor vehicle.” Just remember until 1926 the intent of the legislature was found to be:

In Re Schmolke (1926), 199 Cal. 42, 47.

It is not the type of vehicle, but the peculiar nature of the business conducted upon and over the public highways, that justifies the classification of the statute for licensing purposes.


Assuming the forgoing analysis of the use of indefinite and definite articles is a flop, I would like to address equally important issues to me that I uncovered in my studies.




Further analysis on the terms “Use” and “Enjoy”


http://www.constitution.org/bouv/bouvier_u.htm


ENJOYMENT. The right which a man possesses of receiving all the product of a thing for his necessity, his use, or his pleasure.

USE, civil law. A right of receiving so much of the natural profits of a thing as is necessary to daily sustenance; it differs from usufruct, which is a right not only to use but to enjoy. 1 Browne's Civ. Law, 184; Lecons Elem. du Dr. Civ. Rom. §414, 416.

USE AND OCCUPATION. When a contract has been made, either by express or implied agreement, for the use of a house or other real estate, where there was no amount of rent fixed and ascertained, the landlord can recover a reasonable rent in an action of assumpsit for use and occupation. 1 Munf. R. 407; 2 Aik. R. 252; 7 J. J. Marsh. 6; 4 Day, R. 228; 13 John. R. 240; 13 John. R. 297; 4 H. & M. 161; 15 Mass. R. 270; 2 Whart. R. 42; 10 S. & R. 251.

2. The action for use and occupation is founded not on a privity of estate, but on a privity of contract; 3 S. & R. 500; C. & N. 19; therefore it will not lie where the possession is tortious. 2 N. & M. 156; 3 S. & R. 500; 6 N. H. Rep. 298; 6 Ham. R. 371; 14 Mass. R. 95. See Arch. L. & T. 148.

USEFUL. That which may be put into beneficial practice.

2. The patent act of congress of July 4, 1836, sect. 6, in describing the subjects of patents, mentions "new and useful art," and "new and useful improvement." To entitle the inventor to a patent, his invention must, to a certain extent, be beneficial to the community, and not be for an unlawful object, or frivolous, or insignificant. 1 Mason, 182; 1 Pet. C. C. R. 322; 1 Bald. 303; 14 Pick. 217; Paine, 203.

[Ownmaster]

CALIFORNIA CONSTITUTION (2004), Art. 1, Sec. 1 (http://www.leginfo.ca.gov./.const/.article_1 [as of April 23, 2004]):

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.



Gurnsey v. Great Northern Cal Power Co. (1911), 160 Cal. 699, 705.

“It is well settled that the easement or right which the public acquires by the establishment of a highway is the right to travel thereover, and that the only control over it which the board of supervisors, as trustees for the public, can exercise, is such as is necessary to maintain the highway in a proper and convenient manner for the exercise of the use by the public. ...All that the public acquires under the easement is declared by section 2631 of the Political Code, as follows: "By taking or accepting land for a highway, the public acquire only the right of way, and the incidents necessary to enjoying and maintaining the same, subject to the regulations in this and the Civil Code provided."

Notice above that the court uses the term “use” and the political code uses the term “enjoy.”

In Re Graham (1928), 93 Cal.App. 88, 92

...Public streets and highways are made for travel and the convenience and enjoyment of the citizens. The petitioner has the same rights to their use as others, but he is demanding a privilege which might greatly inconvenience the general public and impair its safety. ... As was said in Holmes v. Railroad Commission, 197 Cal. 627 [242 Pac. 486]: "The reason for the rule which authorizes the state to prohibit the private use of the public highways by such carriers is not that they are common carriers. It is that they are making a private use of the highways, which are owned and paid for by the public and are open alike to all persons.
.

Is you car your own personal property? The below case as well as the United States Constitution guaranty the right to enjoy property. (Citation missing)

A citizen has a basic constitutional right to intrastate as well as interstate travel. (In re White, supra, 97 Cal.App.3d 141, 148.) Many other fundamental rights such as free speech, free assembly and free association are often tied in with the right to travel. (See Kent v. Dulles (1959) 357 U.S. 116, 126 [2 L.Ed.2d 1204, 1210, 78 S.Ct. 1113].) The right to acquire, own, enjoy and dispose of property is also a basic fundamental right guaranteed by the Fourteenth Amendment to the United States Constitution.



ORIGINAL INTENT

Sogawa v. Dept. of Motor Vehicles (1950), 100 Cal.App.2d 181, 187; 223 P.2d 269.

[Ownmaster]

In the case of Stillwell v. State Bar (1946), 29 Cal.2d 119, at 123 [173 P.2d 313], the California Supreme Court expressed the rule of interpretation applicable hereto as follows: 'It may be presumed that the Legislature, in passing the amendatory legislation, had in mind the original act (see Robbins v. Omnibus Ry. Co., 32 Cal. 472, 474; 1 Sutherland on Statutory Construction (3rd ed.) Section 1933), and it is a well-established rule of construction that when a word or phrase has been given a particular scope or meaning in one part or portion of a law it shall be given the same scope or meaning in other parts or portions of the law. (Coleman v. City of Oakland, 110 Cal.App. 715 [295 P. 59]; Ransome-Crummey Co. v. Woodhams, 29 Cal.App. 356 [156P. 62].)'



Further analysis on the term “operate.”


At this point I will try to introduce the concept of “License to Operate.” Across the globe the term “license to operate” means a “license to do business”. Keep in mind that this is standard usage. Also notice that this defendant has shot his own argument by telling the court that the term “operate” meaning “hauling for hire.” What if “operate” did carry commercial connotation however it still did not mean “to haul.” Why not just say it means, “some act with commercial connotation.” I want to show this case from out of state because it addresses so many problems. We will also get a chance to see how this man lost.

Bosse v. Marye (1926), 80 Cal.App. 109, 118.
"To drive" is defined as meaning, "to impel the motion and quicken"; whereas "to operate" means "to direct or superintend." (Century Dictionary.)


http://caselaw.lp.findlaw.com/script...ol=200930_2003

Opinion
Missouri Court of Appeals Southern District

Case Style: State of Missouri, Plaintiff-Respondent v. Robert N. Joos, Defendant-Appellant.

Case Number: 25707

Handdown Date: 09/30/2003

Appeal From: Circuit Court of Mcdonald County, Hon. John LePage, Associate Circuit Judge

Counsel for Appellant: Appellant appeals pro se

Counsel for Respondent: No brief filed by Respondent

Opinion Summary: None

Citation:

Opinion Author: James K. Prewitt, Judge

Opinion Vote: AFFIRMED. Barney, P.J., and Garrison, J., concur.

[Ownmaster]

Opinion:

AFFIRMED
Following a bench trial, Robert N. Joos ("Defendant") was convicted of two counts of driving a vehicle without a valid license, a Class A misdemeanor, in violation of § 302.020, RSMo. 2000. He was sentenced to 15 hours of community service on each count, to be served consecutively. He raises four points on appeal, which will be discussed after a brief synopsis of the facts. No respondent's brief has been filed by the State.
On three separate occasions, Defendant received citations for driving a vehicle without a valid license. The first alleged offense occurred on May 7, 2001; the second on November 10, 2001; and the third on December 17, 2001. The trial court sustained Defendant's motion to consolidate the three separate cases.
Defendant filed a motion to dismiss citing as reasons his religious beliefs and lack of definition of the term "operate" in the statute. He later filed a motion for a bill of particulars in which he requested that the " court require prosecutor to produce a bill of particulars, setting forth who or what he alleges I was hauling, specifically: identifying passengers, freight, and/or cargo; fees, rates or fares, and; proof of registration of cars or trucks as motor vehicles." Both motions were denied by the trial court.
Defendant waived his right to a jury trial. After hearing the evidence, the trial court sustained the judgment of acquittal on Count I, which referenced the first instance in which Defendant was charged with violation of the statute. However, the trial judge found Defendant guilty on Counts II and III. Defendant was sentenced to 15 hours of community service for each count, to be served consecutively. This pro se appeal followed.
In his first point, Defendant contends that the trial court erred because the term "operate" is not defined within the statute. According to Defendant, without such a definition, he had "no way of knowing what [was] prohibited." He further argues that "operate" is a technical word that essentially means "hauling for hire," an activity in which he was not involved when he received the citations.
Under § 302.020, RSMo. 2000, absent meeting one of the exceptions listed in § 302.080, RSMo. 2000, it is unlawful for a person to "[o]perate any vehicle upon any highway in this state unless the person has a valid license." Defendant is correct that "operate" is not among the terms defined for Chapter 302. The Chapter does, however, define the term "operator" as "every person who is in actual physical control of a motor vehicle upon a highway." Section 302.010(15).
Although one might argue that the definition of the term "operate" may be gleaned from the Chapter's definition of the term " operator," we can also arrive at a meaning for "operate" by considering the plain and ordinary meaning of the word. See Cox v. Director of Revenue, 98 S.W.3d 548, 550 (Mo.banc 2003). "Absent a definition in the statute, the plain and ordinary meaning is derived from the dictionary." Id.
One dictionary definition of "operate" is "to cause to function usually by direct personal effort: work (a car)." W EBSTER 'S T HIRD N EW I NTERNATIONAL D ICTIONARY 692 (1993); see also Cox, 98 S.W.3d at 550. Another dictionary defines it as "to perform a function, or operation, or produce an effect." B LACK 'S LAW DICTIONARY 1091 (6th ed. 1990).
Based on our reading of these definitions, we do not agree with Defendant that they equate to "hauling for hire." Further, given the plain and ordinary meaning of the term as noted above, Defendant's argument that, based on the absence of a definition of the term "operate" in the statute, he was not put on notice as to what activities would violate the statute or constitute "operate" fails. Point I is denied.

[Ownmaster]

Note that above, the court did not choose to accept the translation from “Operator” to “Operate.” Instead they chose to go to the dictionaries. The dictionaries are appropriate where terms are not defined by statute. Well, here are the terms used in Blacks law that was mentioned above. As printed of course in Bouvier’s:


Bouvier’s Law Dictionary

OPERATION OF LAW. This term is applied to those rights which are cast upon a party by the law, without any act of his own; as, the right to an estate of one who dies intestate, is cast upon the heir at law, by operation of law; when a lessee for life enfeoffs him in reversion, or when the lessee and lessor join in a feoffment, or when a lessee for life or years accepts a new lease or demise from the lessor, there is a surrender of the first lease by operation of law. 9 B. & C. 298; 5 B. & C. 269; 2 B. & A. 119; 5 Taunt. 518.

Above we see that “operation of law” does not really make sense. However could anything make sense in the context of “a car” after “perform a…” I mean, how does “perform a function” relate to a driving a car? How does “perform an operation” relate to driving a car? How does “produce an effect” work in this context? Why the hell did the court bring it up? Should the defendant have objected to the next court that those terms do not make anything clearer? Is that what is going on?


Bouvier’s Law Dictionary

FUNCTION, office. Properly, the occupation of an office; by the performance of its duties, the officer is said to fill his function. Dig. lib. 32, 1. 65, §1.

FUNCTIONARY. One who is in office or in some public employment.


EFFECT. The operation of a law, of an agreement, or an act, is called its effect.

2. By the laws of the United States, a patent cannot be granted for an effect only, but it may be for a new mode or application of machinery to produce effects. 1 Gallis. 478; see 4 Mason, 1; Pet. C. C. R. 394; 2 N. H. R. 61.

EFFECTS. This word used simpliciter is equivalent to property or, worldly substance, and may carry the whole personal estate, when used in a will. 5 Madd. Ch. Rep. 72; Cowp. 299; 15 Ves. 507; 6 Madd. Ch. R. 119. But when it is preceded and connected with words of a narrower import, and the bequest is not residuary, it will be confined to species of property ejusdem generis with those previously described. 13 Ves. 39; 15 Ves. 826; Roper on Leg. 210.


Lets now look at the non-legal dictionary terms for “operate” since nothing from Black’s Law Dictionary seems to make sense for the State’s argument (Despite all the stuff about being employed as an officer which supports my own).

WEBSTER 'S THIRD NEW INTERNATIONAL DICTIONARY 692 (1993)

"operate" is "to cause to function usually by direct personal effort: work (a car)."


So is the theory that I am “operating” the car? Is the theory that I am causing the car to “function”? What is the function of my car? Is it to move or propel me down the highway? I think yes!

http://www.moga.mo.gov/statutesearch/Default.aspx

[Ownmaster]

Missouri Revised Statutes
Chapter 302
Drivers' and Commercial Drivers' Licenses
Section 302.010

(23) "Vehicle", any mechanical device on wheels, designed primarily for use, or used on highways, except motorized bicycles, vehicles propelled or drawn by horses or human power, or vehicles used exclusively on fixed rails or tracks, or cotton trailers or motorized wheelchairs operated by handicapped persons.

So if I design a car primarily for off highway uses, and incidentally use it on the highway, then it is not a “vehicle” under Missouri’s definition of “vehicle” which uses the term “any”.

Possibly they mean one is controlling steering or the acceleration. But I do not “directly” cause these things to happen. It is not “my” “work” that makes the car do anything really. It is the engine really providing the force to do the “work”. In the end am I causing my car to go forward? Or is the car causing itself to go forward? Either way you answer it, it leaves out “driving an automobile” as something I could do.

Also notice how “primarily” as stated above becomes “exclusively” in later versions of the code.

Anyway what if the Missouri statute below was used to show that the license given was a “license to operate.” We have already shown the dictionary definition of that. This is a license to operate a motor vehicle “as a business”. In the case above it is interesting that the court calls the charge “driving without a license” when the real charge is “operating” without an “operator’s” license. Is this just more obfuscation? I think so.

Missouri Revised Statutes
Chapter 302
Drivers' and Commercial Drivers' Licenses
Section 302.010

(8) "License", a license issued by a state to a person which authorizes a person to operate a motor vehicle;”


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http://www.answers.com/topic/license...te?cat=biz-fin

License to Operate - Grant of permission to undertake a trade or carry out a business activity, subject to regulation or supervision by the licensing authority. Licenses are granted by state or federal agencies, and also by private concerns, as when a business authorizes another to use its name as a franchise operator. Licenses granted by government authority imply professional competence and ability to meet certain standards set by law or regulation.

So let’s now look at yet another case where the same Missouri defendant was charged again with “operating” with no license.


http://www.courts.mo.gov/Courts/PubO...7?OpenDocument

Opinion

[Ownmaster]

Missouri Court of Appeals Southern District


Case Style: State of Missouri, Plaintiff-Respondent, v. Robert Neil Joos, Defendant-Appellant.

Case Number: 27323

Handdown Date: 01/26/2007

Appeal From: Circuit Court of McDonald County, Hon. Charles D. Curless

Counsel for Appellant: Irene Karns

Counsel for Respondent: Daniel N. McPherson

Opinion Summary: None

Citation:

Opinion Author: Phillip R. Garrison, Judge

Opinion Vote: AFFIRMED IN PART AND REVERSED IN PART. Barney and Lynch, JJ., concur.

Opinion:

…Defendant was charged by amended information with operating a motor vehicle without a proper license and resisting arrest "by fleeing . . . in such a manner that created a substantial risk of serious physical injury." This appeal followed Defendant's conviction and sentencing.
In Defendant's first point on appeal, he alleges that the trial court erred in ruling that he could not offer evidence and testimony regarding his belief that only those engaged in commercial activity are required by Section 302.020 to have a valid operator's license. Defendant explains that this evidence was "essential to his defense of a good-faith belief in the lawfulness of his conduct," as set out in Section 562.031. We disagree.
Initially, we observe that Defendant did not include this particular claim of error in his motion for new trial, and, therefore, it is not properly preserved for appellate review.(FN2) Rule 29.11(d). Where an allegation of trial court error is not properly preserved for appeal, our review is discretionary and then only for plain error. State v. Reeder, 182 S.W.3d 569, 574 (Mo.App. E.D. 2005).

Here is footnote 2 of the same decision:

“FN2. Defendant's motion for new trial alleges only that the trial court erred in not allowing the admission of Exhibit K, a list of legal authority "used by Defendant in determining that his actions were legal." Defendant does not allege in that motion that the trial court erred in ruling that Defendant could not present testimony or evidence regarding his belief that the law prohibiting driving without a license applied only to those engaged in commercial activity.”

[Remember the defendant in the above case asserted that “operating” only applied to those hauling. Evidently he never properly appealed on the grounds that “Statutes prohibiting “driving” only applied to commercial activity. The court gives this guy the language in my opinion. They essentially say you did not argue “driving” versus “operate” and you did not argue “commercial activity” versus “hauling”. He got it wrong and too

[Ownmaster]

specific in the wrong area. He never should have assumed that “operate” meant something as restrictive as “hauling for hire.” He should have used “Commercial activity.” Where do you suppose the court come up with that if he did not appeal on it?]

Above we see the determination of the court to call the charge “driving” when in fact it is
“operating.” Also from the same case:

When the Legislature amends a statute, it is presumed that its intent was to effect some change in the existing law. Harding v. Lohman, 27 S.W.3d 820, 824 (Mo.App. W.D. 2000). "The Legislature is presumed to have acted with a full awareness and complete knowledge of the present state of the law, including judicial and legislative precedent." Id. This Court should never construe a statute in a manner which would moot the legislative changes, because the legislature is never presumed to have committed a useless act. Id. "To amend a statute and accomplish nothing from the amendment would be a meaningless act." Id.

Here is some more citations where a “license to operate” was used. I will list them in order of a google search on ["License to Operate" defined].

http://en.wikipedia.org/wiki/Corpora...responsibility

License to operate

Corporations are keen to avoid interference in their business through taxation or regulations. By taking substantive voluntary steps they can persuade governments and the wider public that they are taking current issues like health and safety, diversity or the environment seriously and so avoid intervention. This also applies to firms seeking to justify eye-catching profits and high levels of boardroom pay. Those operating away from their home country can make sure they stay welcome by being good corporate citizens with respect to labour standards and impacts on the environment.

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http://www.oscn.net/applications/osc...p?CiteID=77022

Oklahoma Statutes Citationized
Title 6. Banks and Trust Companies
Chapter 1A - International Banking Corporations
International Bank Act
Section 1606 - License to Operate

No license to operate an international bank agency, representative office, or administrative office is transferable or assignable. Every such license shall be, at all times, conspicuously displayed in the place of business specified therein.

B. Except as provided in subsection C of this section, a license to operate an international bank agency, representative office, or administrative office shall be valid for a period of one (1) year, unless such license is suspended or revoked.

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http://www.lrc.state.ky.us/krs/351-00/175.PDF

351.175 Provisions concerning license to operate mine -- Submissions required for

[Ownmaster]

license -- Revocation of license.
(1) The operation of a coal mine in Kentucky is a privilege granted by the
Commonwealth of Kentucky to a licensee who satisfies the requirements of this section and demonstrates that the mine is or will be operated in a safe manner and in accordance with the laws of this Commonwealth.

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http://www.oag.state.va.us/OPINIONS/2000opns/feb005.pdf

99-084
TRADE AND COMMERCE: HORSE RACING AND PARI-MUTUEL
WAGERING.
Voter approval is required for operation of licensed racetrack and satellite facilities.

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http://findarticles.com/p/articles/m..._4/ai_20206387

Target AirFreight Receives License to Operate in China; One of Very Few Licenses Broadens Company's Asian Operations


The above should be making it clear that the common usage of license to operate is always used to describe a license to run some sort of corporate business.


Further analysis on the term “drive.”


Bosse v. Marye (1926), 80 Cal.App. 109, 118.
"To drive" is defined as meaning, "to impel the motion and quicken"; whereas "to operate" means "to direct or superintend." (Century Dictionary.)


Case Style: State of Missouri, Plaintiff-Respondent v. Robert N. Joos, Defendant-Appellant.

Case Number: 25707

Defendant is correct that "operate" is not among the terms defined for Chapter 302. The Chapter does, however, define the term "operator"…

…Although one might argue that the definition of the term "operate" may be gleaned from the Chapter's definition of the term " operator," we can also arrive at a meaning for "operate" by considering the plain and ordinary meaning of the word. See Cox v. Director of Revenue, 98 S.W.3d 548, 550 (Mo.banc 2003). "Absent a definition in the statute, the plain and ordinary meaning is derived from the dictionary." Id.


The above is very important to understand. The court did not “glean” the definition of operate from statute defined “operator.” The court arrived at the meaning of the non-statutory-defined word by using dictionaries.