
    State ex rel. Fred Saunders v. Luke Boyles, Justice, et al.
    
    (No. 7281)
    Submitted March 31, 1932.
    Decided April 12, 1932.
    
      Wm. T. George, for petitioner.
    
      Howard B. Lee, Attorney General, B. Dennis Steed and W. Elliott Nefflen, Assistant Attorneys General, for respondents.
   Litz, Judge:

Petitioner, Fred Saunders, seeks, by a writ of prohibition, to prohibit respondents, Luke Boyles, a justice of the peace, and Forest D. Poling, prosecuting attorney, of Barbour County, and C. P. Wilson, a member of the department of public safety, from further prosecuting petitioner upon the the charge of driving a motor truck, without a chauffeur’s license, over an unfinished state road, not open to public travel, for the removal of material in the process of grading the right of way.

Chapter 17, article 6, section 26, Code 1931, prohibits the operation of a motor vehicle upon a highway by any person without a chauffeur’s license. The state contends that an unimproved right of way for a public road not open to traffic is a road within the meaning of the statute. We cannot concur in this view. Chapter 17, article 1, section 3, Code 1931, provides that tbe term “road” or “public road” shall be deemed to include the right of way, roadbed and all necessary culverts, sluices, drains, ditches, waterways, embankments, slopes, retaining walls, bridges, tunnels and viaducts necessary for the maintenance of travel, dispatching of freight and communication between individuals and communities. As the requirement of a driver’s license to operate a motor vehicle is intended primarily to regulate traffic, it necessarily applied only to roads open to public travel.

The writ is, therefore, granted.

Writ granted.  