Revocation of Driver License of Fischer, Matter of

• Decision Date: 19 May 1986
• Docket Number: No. 15054,15054
• Citation: 395 N.W.2d 598
• Parties: In the Matter of the REVOCATION OF the DRIVER LICENSE OF Leroy C. FISCHER. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 598

395 N.W.2d 598

In the Matter of the REVOCATION OF the DRIVER LICENSE OF Leroy C. FISCHER.

No. 15054.

Supreme Court of South Dakota.

Considered on Briefs May 19, 1986.

Decided Nov. 5, 1986.

Robert Mayer, Asst. Atty. Gen., Pierre (Mark V. Meierhenry, Atty. Gen., Pierre, on brief), for appellant State Dept. of Commerce & Regulation.

Timothy L. Thomas, Rapid City, for appellee.

MORGAN, Justice.

Appellant South Dakota Department of Commerce and Regulation (Department) appeals from an order of the trial court reversing Department's decision to revoke the operator's license of Leroy Fischer (Fischer). We reverse and remand.

In September 1983, Fischer was convicted of DWI-first offense. Approximately one year later, Fischer was again charged with violating SDCL 32-23-1(2), and again pleaded guilty to DWI-first offense. His driving privileges were revoked by the trial court for a period of thirty days, pursuant to SDCL 32-23-2. Subsequently, and during the thirty-day period, Department notified Fischer that it was revoking his operator's permit for a period of one year, pursuant to SDCL 32-12-52.1, which provides:

The department of commerce and regulation shall revoke the license or permit of any operator upon receiving notice of an operator's conviction for a violation of the provisions of Sec. 32-23-1 if the judgment and sentence of the trial court failed to invoke the mandatory provisions of Secs. 32-23-2 to 32-23-4, inclusive, and to the extent that the operator's privileges of driving should have been revoked and if the operator had been charged and convicted consistent with the records of the department of commerce and regulation.

Fischer exercised his right to a trial de novo in circuit court per SDCL 32-12-59. See also Application of Ewert, 81 S.D. 354, 135 N.W.2d 228 (1965). Following submission of the case to the trial court on briefs, the trial court reversed Department's revocation, stating:

This Court's reading of SDCL 32-12-52 (sic) limits the Department's power to revoke an individual's driver's license to those situations where the trial court has failed to invoke a judgment and sentence which is consistent with and mandatory for the offense charged. Here the trial court invoked a judgment and sentence which was proper for the first offense D.W.I. ...

If the Legislature wishes to grant the Department the power it now argues it possesses, the Legislature must state such an intent. It has not done so and this Court refuses to read such an intent into the statute.

Finding the statute as written to be vague and ambiguous, the trial court concentrated on the following statutory language: "The department of commerce and regulation shall revoke the license if the judgment and sentence of the trial court failed to invoke the mandatory provisions of Secs. 32-23-2 to 32-23-4." The trial court reasoned that it did not fail to invoke the mandatory provisions, thus SDCL 32-12-52.1 was inapplicable.

Department urges that this interpretation is erroneous and we agree. As the trial court noted, the statute is ambiguous. "Ambiguity is a condition of construction, and may exist where the literal meaning of a statute leads to an absurd or unreasonable conclusion." Matter of Sales Tax Refund Applications, 298 N.W.2d 799, 803 (S.D.1980). In its original form, before amendment, the statute was not a model of clarity. The phrase beginning "and to the extent ..." should have been transposed so that the statute would read:

The department of commerce and regulation shall revoke the license or permit of any operator, to the extent that the operator's privileges of driving should have been revoked, upon receiving notice of an operator's conviction for a violation of the provisions of Sec. 32-23-1 if the judgment and sentence of the trial court failed to invoke the mandatory provisions of Secs. 32-23-2 to 32-23-4 inclusive.

We now examine the amendment language: "and if the operator had been charged and convicted consistent with the records of the department of commerce and regulation." Read literally, and as applied by the trial court, the statute as amended appears to establish two conjunctive elements to trigger departmental action: (1) The trial court must fail to impose the minimum statutory revocation; and (2) the operator must not have been charged and convicted consistent with departmental records. We do not believe that was the intent of the amendment.

The statute as originally enacted gave Department authority to act in instances of judicial leniency. The amendment adds nothing in that regard but, where it refers to "charged and convicted," we believe that it is meant to deal with prosecutorial leniency or oversight. Therefore, if we read the "and" which precedes the clause to mean "or," the statute is clearer. Thusly read, it says, in essence:

The Department shall revoke the license, to the extent it should have been revoked if:

(1) the trial court failed to invoke the mandatory revocation,

or

(2) the operator had been charged and convicted consistent with Department records.

"Statutes should be given a sensible, practical and workable construction, and to such end, the manifest intent of legislature will prevail over literal meaning of words. [citation omitted] Consequently, it is a familiar rule of construction that the word 'and' is sometimes construed as a disjunctive such as 'or.' " Koethe v. Johnson, 328 N.W.2d 293, 299 (Iowa 1982). " '[C]ourts will construe disjunctive words as conjunctive, and vise versa, and will disregard technical rules of grammar and punctuation, when necessary to arrive at the intent of the legislative body.' " Green v. City of Mt. Pleasant, 256 Iowa 1184, 1212, 131 N.W.2d 5, 23 (1964) (quoting State v. Hardin County Rural Electric Co-op, 226 Iowa 896, 916, 285 N.W. 219, 229 (1939)). " 'While words 'or' and 'and' are not to be treated as interchangeable, ... their strict meaning is more readily departed from than that of other words and one read in the place of the other in deference to the meaning of the context [of a statute].' " Romeo Homes v. Nims, 361 Mich. 128, 137, 105 N.W.2d 186, 191 (1960) (quoting L.A. Darling Co. v. Water Resources Commission, 341 Mich. 654, 662, 67 N.W.2d 890, 894 (1955)). In order to effectuate the intention of the legislature, the word "and" in a statute is sometimes construed to mean "or." See Heckathorn v. Heckathorn, 284 Mich. 677, 280 N.W. 79 (1938).

The laxity in the use of the conjunctive 'and' and the disjunctive 'or' is so frequent that the doctrine has been accepted that they are interchangeable and that one may be substituted for the other if to do so is necessary to give effect to any part of a statute or to effectuate the intention of the Legislature.

Ledwith v. Bankers Life Ins. Co., 156 Neb. 107, 125, 54 N.W.2d 409, 421 (1952).

We find that reading the amendment in the conjunctive leads to an absurd and unreasonable conclusion. We therefore read the word "and" at the start of the 1984 amendment to be interpreted as "or" and as thus interpreted, we find the ambiguity in the statute to be cleared up. Department was therefore correct in revoking the license and we reverse the decision of the trial court in that regard.

We now examine Fischer's argument that the departmental revocation is an unconstitutional denial of due process under the United States Constitution. In this vein, Fischer relies heavily on a United States Supreme Court decision, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), wherein the Court held:

Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.

402 U.S. at 539, 91 S.Ct. at 1589, 29 L.Ed.2d at 94. We hold Fischer's reliance on Bell is misplaced for several reasons.

First, assuming Bell was applicable to begin with, the departmental order did not affect an issued license. When Fischer received the notice, he had no license, nor any immediate right to a license. His prior licenses had been revoked by the trial court pursuant to his plea of guilty to driving while under the influence. To qualify for another license, Fischer would have to apply and pass the requisite examination per SDCL 32-12-47.1. So inasmuch as Fischer was not at that time a duly licensed motor vehicle operator, we find the Bell admonition inapplicable.

Further, we find Bell inapplicable to the statutory scheme we are examining. Bell dealt with an uninsured motorist statute and as the decision points out, the Georgia statutory scheme involved a significant issue of liability, thus requiring a procedure for determining the question of whether there is a reasonable possibility of a judgment being rendered against the licensee as the result of an accident. ¹

In Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32 (1976), the United States Supreme Court considered the issue of "the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter." The Court first noted: "Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Id. at 332, 96 S.Ct. at 901, 47 L.Ed.2d at 31. The decision further noted, however: " '[D]ue process is flexible and calls for such procedural protections as the particular situation demands.' " Id. at 334, 96 S.Ct. at 902, 47 L.Ed.2d at 33 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972)) (brackets in original).

Mathews set out three factors to be...