STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
September 2, 1966
Albert M. Parker
Commissioner of Motor Vehicles
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 67-68 pg. 32
Drivers Permit Law. Driver’s license may be issued in assumed name.
You have requested an official opinion based upon the following factual situation:
A male person between the age of 16 through 20 years, in pursuance of SDC 1960 Supp. 44.03B05, as amended by Chapter 136 of the Session Laws of 1966 tells the Department of Motor Vehicles his name is JOHN JONES. Upon presentation of his birth certificate, it is ascertained that his "birth name" is 
JOHN SMITH. Investigation shows that his mother had divorced his true father when the applicant was a small child and had thereafter married a man name JONES. The applicant was taken into such home, and although neither adopted by JONES nor having a judicial decree changing his name to JONES, was thereafter called JOHN JONES (after his mother's new name.)
QUESTION: In this situation, and in the absence of an adoption or a court decree changing his name, under which name should the operator's license be issued—JOHN JONES (the assumed name) or JOHN SMITH (the name on the birth certificate)?
It is my opinion that the operator's license should be issued in the assumed name JOHN JONES.
The law as it applies to "NAMES," is a most fascinating subject. Many of the facets of the law need not be explored. Concisely stated a "NAME" is used to identify and distinguish one human being from another. A "TRUE NAME" means the first or christian name, given a party at his baptism, and the surname of his ancestor. (Soderberg v. Soderberg, 1 Dak. 503) The christian surname may consist of letters only (Riley v. Litchfield, 168 Iowa 187, 150 NW81, Ann. cas. 1917B 172). The law does not recognize a middle name, but only the one, and first "christian" name. The middle name or initial may be disregarded as immaterial. (Johnson v. Day, 2 ND 295, 50 NW 701). In the case of females, upon marriage her legal surname is that of her husband. (Bacon v. Boston Elevator co., 256 Mass. 301; 182 NW 35; 47 ALR 1100). The designation of "Mrs.", "Jr.", "Sr.", "Dr." and the like ordinarily are not a part of the legal name but are merely titles. (Bidwell v. Coleman, 11 Minn. 78; Clark v. Gilbert, 1 Pin. (Wis. 1843) 354). However, many such additions of titles to the names are necessary in actuality in order to distinguish one person from another.
Historically, prior to the tenth century in England, there were no family or surnames A son of John became "John's son"; a son of Peter, "Peter's Son." These appellations are the derivation of the family names of Johnson, Peterson, or the like. In the Gaelic parts of England, "Son" was denominated by "Fitz" or "Mac" added as a prefix to the father's christian name. The "O" was added as a prefix to identify a grandson. Thus the son of "Connor" could be called "Fitzconnor or McConnor", and his grandson "O'Connor." This is the foundation to the innumerable surnames commencing with "Mac", "Me" or "O".
A surprising thing concerning surnames when first used is the fact that such was not inherited by a son as a matter of birthright, but rather it was bestowed upon a son or a grandson by the community in which he lived. Thus CAMDEN IN "REMAINS" (page 141) pointed out that he knew a man with eight sons, none of which bore the same surname, and not one had the surname of his father.
Historically, all of the following names are "assumed" and not true surnames: Honore De Balzac, Voltaire, Miliere, Dante, Petrach, Richeleu, Napoleon, and Bonaparte. The family or surname of the Duke of Wellington, "Wellesley", was an assumed name; his grandfather having assumed the name "Wesley" which was expanded into "Wellesley" when the Duke was born. Maurice Barrymore was baptised as Herbert Lytle; Henry M. Stanley (Dr. Livingston, I presume), began his life as John Rowlands.
History will reveal that President Grant was christened as HIRAM ULYSSES GRANT. Due to confusion on the part of his sponsor to West Point he was enrolled in the academy as ULYSSES SIDNEY GRANT—the name he used thereafter throughout his life. Likewise, President GROVER CLEVELAND was baptised as STEPHEN G. CLEVELAND. In his teens he dropped the Stephen, assumed the name GROVER, and thereafter he was known as GROVER CLEVELAND.
With this short dissertation on names it is not surprising to find that in the common law that unless such is done for a fraudulent purpose, or will interfere with the rights of others, any person legally can change either his Christian name or surname to any that he desired.
Marshall v. Marshall, 230 Miss. 719, 93 so 2nd 822
Smith v. US Casualty co., 197 NY 420, 90 NE 947, 26 LRA (NS) 1167, 18 Ann. Cas. 701
State v. Librizzi, 14 NJ Misc 904, 188 A 511
Zaflin & Rand v. Stetler, 146 Pa St. 434
Brugier v. Brugier, 12 NJ Super 350, 79 A 2nd 407 Reinken v. Reinken, 351 Ill 409, 184 NE 639
Re Useeldinger, 35 cal App 2nd 723, 96 P 2nd 958
Turesky v. Superior Court, 97 Cal App 2nd 838, 218P 2nd 784
The fact that there may be statutes providing for judicial proceedings for the change of names (SDC 1960 Supp. 37 10) does not modify or amend this common law right to change of name. The statute merely adds an additional procedure for the change of a name, and provides, among other things, an exact date from which such change of names will commence.
Smith v. US Casualty Coo, supra
State v. Librizzi, supra
Zaflin & Rand Co. v. Stetler, Supra
Brugier v. Brugier, supra
Hanes v. Brennan, 135 NYS 2d 900
Brugier v. Brugier, 12 NJ Super 350, 7 9A 2d 409 is an interesting and instructive case. A father petitioned the court for certain relief growing out of his divorce and among other things he sought an order requiring his infant daughter to use her true name, YVONNE LENORE BRUGIER, and refrain from using and assuming the name YVONNE WILLIAMS. It was shown that the father and mother of Yvonne had divorced, and thereafter the mother married one, Rex Williams. The stepfather never adopted such daughter, but when the family moved to a new community, Carmel, N.J., the infant daughter voluntarily enrolled herself into the school under the name YVONNE WILLIAMS, the name she is now known by in such community.
The New Jersey Court denied such motion to require the minor daughter to use her true name. It quoted the rules above stated relating to the common law to change a name, and that statutes authorizing judicial proceedings to change name did not affect this common law right. The court also found that the ordinary rules of minority would not limit the right of a minor from exercising such right to change his name. The court having found that the change of name was legal, and such being true, it could not in any way interfere with the exercise on the part of the minor of his right to change his name.
In Stainsby v. Schallenkamp, 72 SD 385, 34 NW 2d 832, the facts showed that one Flora E. Stainsby executed a deed in 1913 conveying certain land to FRED E. STAINSBY. It was shown that at that time she had a husband EDWIN FREDERICK STAINSBY, a daughter Lucy Stainsby, and a son Floyd Eugene Stainsby. In this action to quiet title the son alleges that he was Fred Stainsby, named as grantee in the deed. The evidence at the trial showed that the husband and the grantor "EDWIN FREDERICK" was known to his family and the persons in his community as "Fred". Likewise, it was shown that FLOYD EUGENE, was called "Eugene" or "Gene" by his friends and acquaintances, only his grandmother called him "Floyd". Our Supreme Court held that the overwhelming evidence showed that EDWIN FREDERICK STAINSBY was the grantee named as FRED E. STAINSBY in such deed.
The decision which is perhaps decisive of the question you have raised is Bridges v. Hart, 302 Mass. 239, 18 NE 2nd 1020. In this case it was claimed that a vehicle registered in the name of THOMAS DOUEY was illegally registered, for the reason such was not the "true name" of the owner. The facts showed that such registrant was born in Canada and christened THEOPHILLUS DOUCETTE. That he migrated to the U. S. A. in 1919, was married in 1921, and until 1932 was called THEOPHILLUS DOUCETTE. In 1932 he went into business of his own and used the name THOMAS DOUEY. He registered the vehicle in 1934.
The Massachusetts Court held that there was no illegal registration in this factual situation. It held (as I believe we must of our statutes) that the purpose of requiring a person to register a motor vehicle in his "true name" is to afford identification of the owner of such motor vehicle. It then held that if a person is commonly and generally known in his community by an assumed name, and can be readily found at the address given in his application, the registration statute is complied with and there is no illegal registration of such vehicle, even though the true name of the registrant is not used.
I believe we must admit that the 1966 statutes, (as well as the 1965 statutes) requiring birth certificates and front facial view photographs of certain drivers is for the purpose of obtaining true age of the applicant and to identify him. There is nothing that I can find that says a person in South Dakota does not enjoy the common law right to assume any name that he desires, so long as such is not done for the purpose of defrauding others, or that will interfere with the rights of others. If, under the circumstances given, the child is known in the community where he lives as JOHN JONES, if to the community at large showing the picture on the driver's license would reveal that persons in the community said "that is John Jones," and if an inquiry made at address given would show that the applicant was there known and could be found under the name of JOHN JONES, it is my opinion that his operator's license should be issued in the name of JOHN JONES even though his birth certificate shows he originally was born as JOHN SMITH.
You have suggested that you feel that the only safe method is to issue the license in the name given in the birth certificate. As previously stated, the whole basis for registration of vehicles or drivers is a matter of identification. From a practical standpoint, your suggestion might have the opposite effect, for an inquiry made in this instance for JOHN SMITH, might show that other than his immediate family no one in his community would know if whom you were speaking.
Likewise, any fear you may have should be alleviated by SDC 1960 Supp. 44.9949 and a decision of the New Jersey Court in State v. Librizzi, 14 NJ Misc. 804, 188 A 511.
In the Librizzi case the applicant Librizzi questioned the revocation of his driver's license. The facts showed that his true name was DEWEY LIBRIZZI and under that name his driver's license was suspended. During the period of suspension he made application for a driver's license under the name DEWEY LA ROSE, giving an address different than the address where he lived. In such application, his answer to the question: "Did you ever have your license revoked or suspended?" he answered "NO". The Court pointed out that the defendant had a right to use an assumed name so long as such was not taken or assumed for a fraudulent purpose, which right was not destroyed by statutes providing for judicial proceedings for the change of name. However, the Court concluded that the defendant had made misstatements of facts in this application under the name LA ROSE. In such application he had not only the right but the duty to advise that LA ROSE and LIBRIZZI were one and the same person, and that under the name Librizzi his driving license was suspended. The license was properly revoked.
In summary, it is my opinion that because of the common law right to use an assumed name, and considering the purposes of the 1966 amendment to SDC 1960 Supp. 44.03B05, that in the factual situation given the license should be issued to the applicant in his assumed name, JOHN SMITH, and not in the name as shown on his birth certificate which is the true name. Furthermore, it would seem that if such person were to apply for a driver's license in his birth certificate name, he should advise that he had a driver's license issued in the assumed name for the benefit of your department.
