Barton v. Hults
| Decision Date | 24 March 1960 |
| Citation | 198 N.Y.S.2d 539,23 Misc.2d 861 |
| Parties | Gerald C. BARTON, Petitioner, v. William S. HULTS, as Commissioner of Bureau of Motor Vehicles of State of New York, Respondent, Pursuant to Article 78 of Civil Practice Act. |
| Court | New York Supreme Court |
Gerald C. Barton, petitioner pro se.
Louis J. Lefkowitz, Atty. Gen. (Norman M. Beck, Asst. Atty. Gen., of counsel), for respondent.
On March 20, 1958, petitioner, who is an attorney, pleaded guilty of speeding on the Hutchinson River Parkway on March 12, 1958. On July 8, 1959, he pleaded guilty of speeding on the Bronx River Parkway on June 21, 1959. On October 20, 1959, he was found guilty, after trial, of speeding in the Village of Suffern on July 27, 1959. On November 27, 1959, he received notice from the Bureau of Motor Vehicles that his driver's license had been revoked. Under Section 71(2)(c) of the Vehicle and Traffic Law, a license 'must' be revoked when the licensee is convicted of speeding three or more times within a period of eighteen months (MacLean v. Kelly, 12 Misc.2d 209, 176 N.Y.S.2d 747, affirmed on opinion below, 9 A.D.2d 982, 194 N.Y.S.2d 917). 1
In this Article 78 proceeding, petitioner seeks to annul the mandatory revocation of his driver's license. By cross notice, the respondent moves to dismiss the petition for insufficiency. The motion is granted and the petition is dismissed.
Persistent speeders, heedless of their own welfare, and senseless to that of the innocent--young and old alike--may legally be deprived of their privilege to drive (People v. Rosenheimer, 209 N.Y. 115, 121, 102 N.E. 530, 532, 46 L.R.A.,N.S., 977; Wignall v. Fletcher, 303 N.Y. 435, 103 N.E.2d 728; Moore v. Macduff, 309 N.Y. 35, 127 N.E.2d 741; Astman v. Kelly, 2 N.Y.2d 567, 161 N.Y.S.2d 860; Hubbell v. Macduff, 2 N.Y.2d 563, 161 N.Y.S.2d 857). For, operating a motor vehicle on the public highway is not a right (People v. Rosenheimer, supra). It is a license granted on condition that the licensee complies with the reasonable regulations laid down by the State (Reitz v. Mealey, 314 U.S. 33, 36, 62 S.Ct. 24, 86 L.Ed. 21).
It is of great value and should be treated as such. But revoked it may be, if the privilege is abused! 2
In 1923 we had 15 million registered cars in the United States. By 1956 they had increased to 60 million. By 1970, they are expected to total 90 million (Report of Joint Legislative Committee on Motor Vehicles and Traffic Safety, Leg.Dec.1959, #55, p. 24). When the automobile first appeared on the scene, it stirred the imagination as a marvel of the inventor's art; today it is a commonplace part of our daily life. Automobiles are everywhere; highways, thruways and parkways have been and are being constantly built to facilitate their movement and speed--the lawful limit of which has been progressively increased. If the automobile is not to be converted ever more into an engine of destruction rather than an agent of social utility, we must insist--unceasingly and increasingly--on the most stringent regulation and the most rigid enforcement of rules designed to assure careful driving and resultant safety for the community and all the inhabitants thereof. And 'the licensing system is the keystone of all the legislative safeguards deemed necessary to protect the public against death or mutilation'. People v. Duell, 1 N.Y.2d 132, 134, 151 N.Y.S.2d 15, 18. The right to continued possession of a driver's license is not absolute--it is conditioned upon responsibility for the person and property of others. On this correlation of privilege and duty is predicated the hope of millions of our people for safety and protection from a machine at once marvelous and necessary, and potentially lethal.
An eminent student of traffic safety tells us: (Dr. James L. Malfetti, Traffic Safety, the Driver and Electronics, Teachers College Record, vol. 61, No. 2, November, 1959, p. 99).
In 1958, almost 13,000 persons lost their lives because the drivers exceeded the legal speed limit. In the same year, injuries to almost a million more were traced to the same cause (The Luckless Legion, 1959, Travelers Insurance Companies, p. 4). Since the automobile first appeared on the American scene, the ranks of the crippled and the dead have included more than 60,000,000 (Ibid, p. 14). Speeding was responsible for 43% of the killings. It is answerable for over 40% of the mangled (Ibid, p. 4). To reduce the carnage, speeding must be stopped.
In our own State, the Bureau of Motor Vehicles advised the Legislature (Leg.Dec.1958, #113, p. 13):
The statistics in their total impact shock the conscience. Each is an overwhelming tragedy to the victim and his family. 3 Almost 40,000 people annually have died on United States highways in recent years and the grim prophecy has been uttered that unless a major scientific breakthrough is made in traffic safety research, by 1975 this will have increased to 55,000 people a year (Hon. Kenneth A. Roberts, Problems of Traffic Safety, in pamphlet entitled Electionics Controls and Traffic Safety, Teachers College, Columbia University, pp. 74-75). In Congressman Roberts' phrase: the modern automobile is miraculous, 'and yet, it is a machine which, unfortunately: Has no brain--Has no heart--Has no conscience--Has no loved ones to lose if it is transformed from an engineer's delight into a tangled twist of metal.'
The driver--and the driver alone--controls its destiny in practically all cases. Legally--and morally--his license may be used only within the prescribed limitations. When so used that it may endanger others, it is properly revoked. As the Appellate Division of the Fourth Department recently observed:
Jones v. Kelly, 9 A.D.2d 395, 194 N.Y.S.2d 585, 590.
Petitioner was convicted three times of speeding within an eighteen month period. The first and second convictions are not under attack. We are here concerned with the third, based on a verdict after trial. Petitioner challenges the order of revocation on the ground that though the Suffern Justice of the Peace was informed that the offense charged was the third such offense, he failed 'to strictly comply with Section 335-a of the Code of Criminal Procedure, to wit, requiring upon arraignment in open Court, that the Magistrate must inform the defendant that a conviction subjects him to a suspension or revocation of his license'. 4
What constituted such failure 'strictly' to comply is not alleged. (It is not alleged that petitioner appealed from the judgment of conviction or otherwise sought to upset it.) Nor is it alleged that the traffic summons did not contain the caveat that conviction might result in suspension or revocation of petitioner's license--which, under the statute, is equivalent to the requirement that the Magistrate must inform the defendant of the effect of a third conviction. 5
Petitioner here received a traffic summons. As just noted, his amended petition does not allege that it did not contain the warning set out in section 335-a. Wholly apart from the fact that his allegations of the action of the Magistrate are purely conclusory, his failure to allege that the summons did not provide the prescribed notice renders the petition fatally defective (MacLean v. Kelly, supra.) But, concerned lest the omitted allegation was inadvertent, I have examined the documents submitted, solely to determine whether petitioner should be given the right to further amend his position. A photostatic copy of the summons is among these documents. In fact, it includes the warning prescribed in the Criminal Code section.
On November 24th, respondent had before him the trial court's certificates establishing both the conviction and compliance with section 335-a of the Code of Criminal Procedure. Respondent could properly make his determination upon these certificates in his file (Fink v. Cole, 1 N.Y.2d 48, 150 N.Y.S.2d 175; Gross v. Macduff, 284 App.Div. 786, 135 N.Y.S.2d 435; Goodfellow v. Kelly, 6 A.D.2d 962, 177 N.Y.S.2d 73).
But petitioner argues that the Suffern Justice of the Peace Court did not submit its certificate of the conviction of the Commissioner of Motor Vehicles until November 24, 1959; and did so only after this proceeding had been instituted in respect of an earlier suspension of his license, 6 and after the Attorney General's office had requested submission of the certificate. His contention is that such late certification violates section 70, subdivision 11(d) of the Vehicle and Traffic Law, and may not constitute the foundation for revocation of his license. Concededly, the certificates submitted by the court set forth both the conviction and compliance with Section 335-a of the Code of Criminal Procedure. Petitioner argues that the late submission of the certificates deprived them of their efficacy. 7
Section 70(11) provides for submission of the...
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