Small v. Gartley

• Decision Date: 05 December 1973
• Parties: Richard W. SMALL v. Markham L. GARTLEY * in his capacity as Secretary of State of the State ofMaine. . Sept, 8, 1976. Linnell, Choate & Webber by Curtis Webber, Auburn, for plaintiff. Leon V. Walker, Jr., Asst. Atty., Gen., Augusta, for defendant. Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELATHANTY, JJ. DUFRESNE, Chief Justice. Richard W. Small, the appellant, was charged with the offense of operating a motor vehicle while under the influence of intoxicating liquor pursuant to 29 M.R.S.A., § 1312(10-A). As a result of investigation of the case at the request of appellant's attorney, an alcoholism counselor assigned to the Division of Vocational Rehabilitation of the State Department of Health and Welfare recommended to the Judge of the Eighth District Court, Division of Southern Androscoggin, with the concurrence therein of the State's Attorney, that the current offense be considered as a first offense. The Judge agreed and, upon a plea of guilty to the charge on
• Court: Maine Supreme Court

Page 724

363 A.2d 724

Richard W. SMALL v. Markham L. GARTLEY ^* in his capacity as

Secretary of State of the State ofMaine.

Supreme Judicial Court of Maine.

Sept, 8, 1976.

Linnell, Choate & Webber by Curtis Webber, Auburn, for plaintiff.

Leon V. Walker, Jr., Asst. Atty., Gen., Augusta, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELATHANTY, JJ.

DUFRESNE, Chief Justice.

Richard W. Small, the appellant, was charged with the offense of operating a motor vehicle while under the influence of intoxicating liquor pursuant to 29 M.R.S.A., § 1312(10-A). As a result of investigation of the case at the request of appellant's attorney, an alcoholism counselor assigned to the Division of Vocational Rehabilitation of the State Department of Health and Welfare recommended to the Judge of the Eighth District Court, Division of Southern Androscoggin, with the concurrence therein of the State's Attorney, that the current offense be considered as a first offense. The Judge agreed and, upon a plea of guilty to the charge on December 5, 1973, Mr. Small was sentenced as upon a first conviction.

In compliance with 29 M.R.S.A., § 2304 ¹ the Court forwarded to the Secretary of State a duly certified abstract of the conviction. A study of the Scretary of State's records revealed that this latest conviction for operating a motor vehicle while under the influence of intoxicating liquor was the appellant's third such conviction. On January 3, 1974 the Secretary of State, pursuant to 29 M.R.S.A., §§ 1312 (10-A) ² and 2241 ³, suspended Small's operator's license for a period of 3 years without preliminary hearing.

On May 14, 1974, some four months after receiving notice of the suspension order, the appellant commenced an action in the Superior Court (Androscoggin County) praying that the defendant Secretary of State be permanently enjoined from withholding the appellant's license to operate a motor vehicle for a period of more that 4 months following the receipt by the defendant of the attested copy of the court record of the appellant's conviction.

On May 23, 1974 the Secretary of State moved to dismiss the complaint, pursuant to Rule 12(b)(1) and (6), on the respective grounds that the Superior Court was without jurisdiction of the subject matter, since the appellant had not exhausted the remedies available to him at law, having through lack of diligence permitted the statutory appeal period provided in 29 M.R.S.A., § 2242 and under Rule 80B, M.R.C.P. to expire, and, that the complaint failed to state a claim upon which relief could be granted. The Superior Court Justice dismissed the complaint, and the appellant contests such dismissal in his appeal to this Court. On the other hand, the Secretary of State filed with this Court a motion to dismiss the appeal, on the alleged basis that Small's rights of appeal from the suspension of his license by the Secretary of State are statutorily limited to an appeal to the Superior Court, since section 2242 of title 29 expressly states that the decision reached by the Superior Court is 'final,' and thus no appeal lies to the Law Court.

We dismiss the appeal.

The appellant cushions his contention, that the Secretary of State's suspension of operators' licenses for convictions of the crime of operating a motor vehicle while under the influence of intoxicating liquor is subject to collateral attack in an equitable action seeking injunctive relief, upon the reasoning the statute automatically requires suspension and gives the Secretary of State no discretion in the matter, while the statutory review provided by 29 M.R.S.A., § 2242 and under Rule 80B, M.R.C.P., so the appellant claims, only applies in cases where the Legislature has clothed the Secretary of State with descretion instead of a ministerial mandate. Furthermore, the fact that the implied consent law, 29 M.R.S.A., § 1312(3), ⁴ provides specifically for a review in the Superior Court of the Secretary of State's license suspension in the case of a person's refusal to submit to a chemical test by the same procedure as is provided in section 2242, ⁵ while the Secretary of State's statutory comprehensive power chart in the matter of suspension and revocation of licenses and registrations ad delineated in section 2241 of title 29 does not so provide, is said to support the appellant's argument. We disagree with both positions.

Whether the procedures of judicial review of administrative actions established in 29 M.R.S.A., § 2242 and implemented by Rule 80B, M.R.C.P. are exclusive appellate remedies and whether the Law Court has jurisdiction of the instant appeal notwithstanding the Legislature's express statement that the 'decision of the (Superior) court shall be final,' must depend upon the ascertainment of true legislative intent.

We must bear in mind that the right of appeal, when given, is not a constitutional right, but rather a legislative allowance to which the Legislature may attach such restrictions, limitations and conditions as it may deem appropriate, including the period of time within which the appeal must be taken and the court to which it must be addressed. In Re Belgrade Shores, Inc., 1976, Me., 359 A.2d 59; Portland Pipe Line Corporation v. Environmental Improvement Commission, 1973, Me., 307 A.2d 1, at 15.

Furthermore, in order to reach true legislative intent in connection with different sections of a statute, especially, as in the instant case, where one section is of particular application and the other of general import, consideration must be accorded to the whole system of which the sections involved form a part as all legislation on the same subject matter must be viewed in its overall entirety so that an harmonious result presumably intended by the Legislature may be reached. In Re Belgrade Shores, Inc., supra; Finks v. Maine State Highway Commission, 1974, Me., 328 A.2d 791, 795.

It is true that under 29 M.R.S.A., § 1312 an appeal is specifically provided to review the order of suspension by the Secretary of State in accordance with the same procedure as is provided in section 2242 in the case of suspensions eventuating from the refusal to submit to a chemical test to determine blood-alcohol level, whereas no other reference to a section 2242 appeal is made, either in 29 M.R.S.A., § 1312 or in § 2241 where the suspension issues for other reasons. The contention is advanced that by such omission the Legislature intended to limit the general appeal provisions of section 2242 to suspensions under the implied consent law.

The doctrine of expressio unius exclusio alterius will not carry that far. It is the intention of the Legislature which controls and its true expression must be gleaned from the whole act. The specific appeal provision (29 M.R.S.A., § 1312(3)) has been inserted ex abundanti cautela. Holden v. Veazie, 1882, 73 Me. 312.

The simple incorporation into a statute of limited scope, such as the implied consent law, of a specific provision for review of motor vehicle license suspensions in accordance with, and by express reference to, the provisions of a general statute, previously enacted and providing review of suspensions of motor vehicle licenses generally, cannot be treated as a repeal pro tanto of the general law, because the Legislature ommitted to provide specific review of suspensions issued under other provisions of the law. See Pratt v. Atlantic and St. Lawrence Railroad Company, 1856, 42 Me. 597, 587.

Repeals by implication are not favored and the Legislature will not be presumed to have intended a repeal. State v. Taplin, 1968, Me., 247 A.2d 919, 922; Harris' Case, 1924, 124 Me. 68, 126 A. 166; Inhabitants of Eden v. Inhabitants of Southwest Harbor, 1911, 108 Me. 489, 81 A. 1003.

Implied repeals, provided no contrary legislative intent appears, will be restricted in scope only to the extent one legislative enactment is inconsistent or in conflict with another. State v. Taplin, supra; State v. Bryce, 1968, Me., 243 A.2d 726. In the instant case the special review provided in the implied consent law is not at variance with the appeal provisions of the general law applicable to suspensions of operators' licenses by the Secretary of State in all other cases.

The appellant argues that, even if statutory remedies are made available to review the administrative decisions of the Secretary of State by persons aggrieved thereby, nevertheless, a collateral attack upon the Secretary's license suspension action may be mounted in an equitable proceeding to secure injunctive relief, because, it is claimed, he has exceeded his authority and has proceeded in a manner unauthorized by law.

We agree that, if a public agency exceeds its statutory powers or, even in matters over which it has jurisdiction, proceeds in a manner unauthorized by law, its orders, decrees and judgments may be attacked collaterally as null and void, but, if within the periphery delimited by the legislative power grant, such orders, decrees and judgments, when unreversed or unmodified in the manner provided by the pertinent legislation, have the effect of final judgments, and they cannot be attacked before a judicial forum other than that expressly set up by the Legislature, for some alleged error of law, even of constitutional dimension, which might have been corrected on proper application to the court of last resort provided under the statute. See S. D. Warren Company v. Maine Central Railroad Company, 1926, 126 Me. 23, 25, 135 A. 526.

The doctrine that a court in equity may interfere to enjoin the enforcement of a so-called void order is not absolute, but is subject to the qualification that such order will result in irreparable injury to the complaining party in the enjoyment of some property or property rights and that there is no adequate remedy at law. Hence, where a party is given a special remedy by statute, as in the instant case, there is no reason which justifies...