State v. Booher

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
FEBRUARY SESSION, 1997 FILED
August 22, 1997

Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) No. 01C01-9604-CC-00131
Appellee )
) HUMPHREYS COUNTY
vs. )
) Hon. ROBERT E. BURCH, Judge
ROBERT K. BOOHER, )
) (Driving without a license;
Appellant ) Driving without vehicle registration)

For the Appellant: For the Appellee:

ROBERT KENNETH BOOHER CHARLES W. BURSON
Pro Se Attorney General and Reporter
104 Capps Hill
Waverly, TN 37185 MICHAEL J. FAHEY II
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493

DAN MITCHUM ALSOBROOKS
District Attorney General

GEORGE C. SEXTON
Asst. District Attorney General
Room 206
Humphreys Co. Courthouse
Waverly, TN 37185

OPINION FILED:

AFFIRMED

David G. Hayes
Judge
 OPINION

The appellant, Robert K. Booher, appeals, as of right, his class C

misdemeanor convictions in the Circuit Court of Humphreys County for driving

without a license and driving without vehicle registration.1 2
The appellant

raises a multitude of issues on appeal, which may be categorized into three main

areas. In this pro se appeal, he challenges:

I. The authority of the State to regulate the licensing of motorists
and the registration of vehicles;

II. The Circuit Court of Humphreys County's jurisdiction to try him
for the indicted misdemeanor charges; and

III. The State's "denial of due process of law."

After a review of the issues before us and the applicable law, we conclude

that the appellant's issues are without merit. The judgment of the trial court is

affirmed.

I. Background

On June 30, 1995, the appellant voluntarily surrendered "to the Registrar

of Motor Vehicles, by registered mail, all original registration papers, all

certificates of title, all current or last renewal registration papers, and all current

license plates for his three automobiles and two pickup trucks." Subsequent to

this surrender, the appellant asserts that he traveled as a "free man" for about

three and a half weeks.

On July 25, 1995, Morris Rion, an officer with the Waverly Police

Department, observed the appellant, on Main Street, operating his 1985 Dodge

1
The offenses constitute violations of Tenn. Code Ann. § 55-3-102 and 55-50-301.

2
The appellant disputes this court's jurisdiction over his appeal, arguing that his appeal
should lie directly to our supreme court. We reject this argument. See Tenn. Code Ann. § 16-3-
201 (d)(2 )(C) (1994) a nd T enn . Code A nn. § 16-5 -108 (a)(1 ) (1994).

2
Daytona automobile, displaying a poster upon which was written "R.K. Booher,

Tennessee Citizen, Owner, Humphreys County Resident." The automobile,

however, did not display a valid Tennessee license plate. Upon stopping the

vehicle, Officer Rion requested that the appellant produce his driver's license.

Without responding to Rion's request and refusing to identify himself, the

appellant produced a "notice to arresting officer with Miranda Warning," and

began "filling it out." The officer then proceeded to run a driver's license check

which revealed that the appellant did not possess a Tennessee driver's license.

The officer then advised the appellant that he was issuing two citations which

would require the appellant's signatures. The appellant refused to sign the

citations. The appellant was then transported to the Waverly Police Department

where arrest warrants were issued and served upon him.

At his bench trial, the appellant, appearing pro se, denied that he was in

violation of any law, arguing instead, that he was only exercising his right as an

“unenfranchised citizen of Tennessee” to use his private property on the public

highway over which every citizen has a right to pass. Moreover, the appellant

argued that a vehicle only becomes a “motor vehicle” when it is registered and,

because his 1985 Dodge was not registered, he could not be guilty of either

misdemeanor offense. Finally, the appellant argued that, because he was not

engaged in commerce, his vehicle was not required to be registered. The

appellant also explained that he did not have a Tennessee driver’s license

because Tennessee requires that the registrant’s social security number be

placed on the license.3

The trial court found the appellant guilty of both offenses and imposed a

3
In State v. Loudon, 857 S.W .2d 878, 882 (T enn. Crim . App. 1993), a pane l of this court
held that “[t]here is a compelling state interest which justifies the statutory requirement that the
driver’s social security number appear on the face of the license issued by the Department of
Safety. . . . The social security number serves to distinguish a person from others with the same
or sim ilar nam es. . . .”

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probated sentence of thirty days for each offense with credit for jail time served.

Additionally, the appellant was fined $25.00 for each offense.

II. Driver's License and Vehicle Registration

The appellant's appeal is based upon the premise that it is unconstitu-

tional for the State of Tennessee to require him to procure a driver's license and

vehicle registration before operating a motor vehicle on the public highways of

this state. He argues that he has a constitutional right to freedom of travel and to

use his private property without governmental interference.

We agree with the appellant that he enjoys a fundamental right to freedom

of travel. See Dunn v. Blumstein, 405 U.S. 330, 338, 92 S.Ct. 995, 1001 (1972);

Knowlton v. Board of Law Examiners of Tennessee, 513 S.W.2d 788, 791

(Tenn. 1974). Travel, in the constitutional sense, however, means more than

locomotion; it means migration with the intent to settle and abide. Id. Thus, any

American is free to travel from state to state, and to change his state of

residence or employment whenever he desires, unrestricted by unreasonable

government interference or regulation. See 16A C.J.S. Constitutional Law §478

(1969). Whether a specific type of travel is protected by one's constitutional right

to travel depends upon the intent which motivates the movement. Id.

In the present case, the appellant asserts that the State of Tennessee has

unduly infringed upon his "right to travel" by requiring licensing and registration of

his motor vehicles prior to operation on the public roadways of this state.

However, contrary to his assertions, at no time did the State of Tennessee place

constraints upon the appellant's exercise of this right. His right to travel within

this state or to points beyond its boundaries remains unimpeded. Thus, not only

4
has the appellant's right to freedom of travel not been infringed, but also, we

cannot conclude that this right is even implicated in this case. Rather, based

upon the context of his argument, the appellant asserts an infringement upon his

right to operate a motor vehicle on the public highways of this state. This notion

is wholly separate from the right to travel.

The ability to drive a motor vehicle on a public highway is not a

fundamental "right." See Goats v. State, 364 S.W.2d 889, 891 (Tenn.1963)

(emphasis added); Sullins v. Butler, 135 S.W.2d 930, 932 (Tenn. 1940) (citations

omitted). Instead, it is a revocable "privilege" that is granted upon compliance

with statutory licensing procedures. See Reitz v. Mealey, 314 U.S. 33, 36, 62

S.Ct. 24, 26-27 (1941), overruled in part by, Perez v. Campbell, 402 U.S. 637, 91

S.Ct. 1704 (1971); Goats, 364 S.W.2d at 891; Sullins, 135 S.W.2d at 932.

State and local governments possess an inherent power, i.e. police

power, to enact reasonable legislation for the health, safety, welfare, morals, or

convenience of the public.4 See Nashville, C & St. L. Ry. v. Walters, 294 U.S.

405, 55 S.Ct. 486 (1935); Erstin v. Moss, 430 S.W.2d 345, 348 (Tenn. 1968),

appeal dismissed, 393 U.S. 318, 89 S.Ct. 554 (1969); State v. Sowder, 826

S.W.2d 924, 927 (Tenn. Crim. App. 1991), appeal dismissed, (Tenn. 1992), cert.

denied, 510 U.S. 883, 114 S.Ct. 229 (1993). Thus, our legislature, through its

police power, may prescribe conditions under which the "privilege" of operating

automobiles on public highways may be exercised. Sullins, 135 S.W.2d at 932.

See also Goats, 364 S.W.2d at 891. Nonetheless, such regulations may not be

unreasonable, may not violate federal or state constitutional provisions, as by

discriminating between vehicles or owners of the same class; and, in the case of

ordinances, may not conflict with state statutes. See 60 C.J.S. Motor Vehicles §

4
Th e "police power" of the state is founde d in the con stitution, b eing bas ed u pon the duty
of the state to protect its citizens and p rovide for the safe ty and g ood orde r of society. See 16A
C.J.S. Constitutional Law § 433.

5
62.

The test to determine the validity of statutes enacted through the state's

police power is whether or not the ends sought to be attained are appropriate

and the regulations prescribed are reasonable. United States v. O'Brien, 391

U.S. 367, 382, 88 S.Ct. 1673, 1682 (1968). The test of reasonableness requires

a balancing effort on private interests and the public good to be achieved. If the

public benefits outweigh the interference with private rights, reasonableness is

indicated, but if the private injury outweighs the public advantage the measure is

unreasonable. Id. In applying this test, it must be remembered that the

presumption is in favor of the reasonableness and validity of the law, so that the

person challenging the validity of the regulation has the burden of clearly

showing wherein it violates the constitution. Id.; see also Darnell v. Shapard, 3

S.W.2d 661, 663 (Tenn. 1928).

The appellant challenges various provisions of the Tennessee Motor

Vehicle Title and Registration Law. Requiring persons to obtain a driver's license

and to register their automobiles with the State provides a means of identifying

the owner of the automobile if negligently operated to the damage of other

persons. See State v. Bates, 30 S.W.2d 248, 249 (Tenn. 1930); Erosion

Control Corp. v. Evans, 426 S.W.2d 202, 206 (Tenn. App. 1967). Moreover,

because it is a means of guaranteeing a minimal level of driver competence,

licensing improves safety on our highways and, thus, protects and enhances the

well being of the residents and visitors of our state. Thus, our state legislature

may properly within the scope of its police power enact reasonable regulations

requiring licensing and registration of motor vehicles as it furthers the interests of

public safety and welfare.

6
 Within his constitutional challenge, the appellant presents additional

arguments relating to whether his automobile is a "motor vehicle" contemplated

by the licensing and registration regulations; whether he is exempted from such

regulations because of his "use" of his automobile; and whether he is required to

obtain a Tennessee driver's license, as he is only a common law resident of

Tennessee with a valid Indiana driver's license. The appellant's 1985 Dodge

Daytona is a motor vehicle contemplated by the regulations, Tenn. Code Ann. §

55-1-103(d); said vehicle is driven upon the public roads of this state, Tenn.

Code Ann. § 55-3-101; and, for purposes of the Tennessee Motor Vehicle Title

and Registration Law, the appellant is a resident of Tennessee, Tenn. Code Ann.

§ 55-50-304. These issues are without merit.

III. Jurisdiction of the Trial Court

Next, he contends that the Humphreys County Circuit Court was without

jurisdiction to try him on the indicted charges. He argues that the trial court

lacked both in personam and subject matter jurisdiction. In support of his

argument concerning in personam jurisdiction, he avers:

That I, Private Citizen Robert K. Booher, am of lawful age and
competent (sui juris); and was born on January 25, 1930 a Free
judicial Power Citizen of Indiana, and thereby in one of the fifty
united [sic] States of America, and have lived in Tennessee since
1989 thus making me a common law judicial Citizen of Tennessee
protected by the Constitution of Tennessee (1870), in fact, by right
of blood and heritage, (jui sanguinis) descending from my direct
Family who all have been continuously in this country since 1746, I
am also protected by the Constitution of Indiana (1851), the
Constitution for the United States of America (1789) including its
Preamble and the Bill of Rights (1791), the Northwest Ordinance
(1787), the Articles of Confederation (1777), and therefore retain
the unalienable rights granted by God, as found and secured by the
posititve law embodied in the Declaration of Independence (1776),
therefore securing and binding these rights upon myself and my
posterity, this day and for all time; and further. . .

The appellant argues that his rights are those that "existed by the law of the land

7
long antecedent to the organization of the State", and that, as a "judicial power

citizen," he is governed only by "God and the common law of the Constitution

which is the law of the land." Thus, the appellant asserts that he has never

voluntarily consented to or "grant[ed] any State agency the authority to try him for

an alleged criminal act or omission under any jurisdiction other than a judicial

power jurisdiction and proceeding."

We reject the appellant's argument that he is exempt from the laws of this

state because he has never consented to nor granted the State the authority to

try him for criminal acts or omissions. Consent to laws is not a prerequisite to

their enforceability against individuals. See City of Salina v. Wisden, 737 P.2d

981, 983 (Utah 1987). No person in the State of Tennessee may exempt himself

or herself from any law simply by declaring that he or she does not consent to it

applying to them. See State v. Skurdal, 767 P.2d 304, 308 (Mont. 1988). To do

so would result in sheer anarchy. We must all abide by the valid laws, even the

ones with which we do not agree, or justice will be served against us for the

violation. Id. The appellant’s presence at his trial in Humphreys County is

sufficient to establish jurisdiction over his person. See Johns v. Bowlen, 942

S.W.2d 544, 547 (Tenn. Crim. App. 1996).

The appellant was charged with driving without a license and driving an

unregistered vehicle, both class C misdemeanors. "The circuit court has

exclusive original jurisdiction of all crimes and misdemeanors, either at common

law or by statute, unless expressly provided by statute or this Code." Tenn.

Code Ann. § 16-10-102 (1994). See also Tenn. Code Ann. §40-1-107 (1993

Supp.); Tenn. Code Ann. § 40-1-108 (1990). This issue is without merit.

IV. Alleged Due Process Violations

8
 Finally, the appellant presents a myriad of disordered issues which he

characterizes as due process violations. First, the appellant argues that "Officer

Rion lacked probable cause under which to initially detain him." The appellant's

argument is misplaced; probable cause has no application to the present case.

An officer may, without a warrant, arrest an offender for a public offense

committed in the officer's presence. See Tenn. Code Ann. §40-7-103 (a)(1)

(1995 Supp.). It is undisputed that the appellant committed an offense in the

officer's presence. Thus, the officer's initial stop of the appellant was proper.

This issue is without merit.

Next, the appellant challenges the sufficiency of the "affidavits of

complaint" and the sufficiency of the indictments in the present case. The

affidavits in the present case comply with Rule 3, Tenn. R. Crim. P. Moreover,

the indictments satisfy the requirements set forth in Tenn. Code Ann. § 40-13-

201 et seq. (1990). Finally, the appellant argues that his bail was excessive, that

his automobile was wrongfully impounded, that he was not provided an initial

appearance "promptly after arrest," that the Grand Jury was prevented from

viewing documents filed on his behalf, and that the trial judge committed various

infractions violating the appellant's due process rights. As the appellant has

failed to prepare an adequate record from which this court can complete a

meaningful review, we are precluded from considering such issues. Tenn. R.

App. P. 24. Furthermore, the proof in the record before us establishes these

contentions are without merit.

VII. Conclusion

The appellant has failed to show that the statutes requiring licensing and

registration for motor vehicles are unreasonable. Such regulations are both

9
reasonable and beneficial exercises of the state's police power, working the

greatest good to the greatest number. See, e.g., Goats, 364 S.W.2d at 891;

Bates, 30 S.W.2d at 249. No constitutional right of the appellant was violated.

The judgment of the trial court is affirmed.

____________________________________
DAVID G. HAYES, Judge

CONCUR:

______________________________
GARY R. WADE, Judge

______________________________
CURWOOD WITT, Judge

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