Department of Revenue and Taxation of State of Wyo. v. Hamilton, 87-50

• Decision Date: 08 October 1987
• Docket Number: No. 87-50,87-50
• Citation: 743 P.2d 877
• Parties: In the Matter of the Suspension, Pursuant to Title 31, Wyoming Statutes, as Amended, of License Number 2685135014. The DEPARTMENT OF REVENUE AND TAXATION OF the STATE OF WYOMING, Appellant (Respondent), v. Fleet HAMILTON, Appellee (Petitioner).
• Court: Wyoming Supreme Court

Page 877

743 P.2d 877

In the Matter of the Suspension, Pursuant to Title 31, Wyoming Statutes, as Amended, of License Number 2685135014.

The DEPARTMENT OF REVENUE AND TAXATION OF the STATE OF WYOMING, Appellant (Respondent), v. Fleet HAMILTON, Appellee (Petitioner).

No. 87-50.

Supreme Court of Wyoming.

Oct. 8, 1987.

Joseph B. Meyer, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., and Mark Quiner, Asst. Atty. Gen., for appellant.

John M. Scorsine, Rock Springs, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

MACY, Justice.

The question we must decide in this case is whether a hearing to review a driver's license suspension can be held more than 45 days after appellant Department of Revenue and Taxation of the State of Wyoming receives the request for a hearing under the 1985 version of Wyoming's implied consent law, § 31-6-101 et seq., W.S.1977.

We reverse the district court's ruling that a hearing must be held within 45 days.

On October 10, 1985, appellee Fleet Hamilton was arrested and charged with driving while under the influence of alcohol in violation of § 31-5-233, W.S.1977. Pursuant to the provisions of § 31-6-102(e), W.S.1977 (now § 31-6-102(f), W.S.1977), the arresting officer confiscated appellee's license and issued a temporary license which contained a notice advising of the procedure for requesting a review hearing.

On October 30, 1985, appellant received appellee's request for a hearing and his request that the arresting officer be subpoenaed to testify. The hearing was first scheduled for December 4, 1985, which date was within 45 days of receipt of the hearing request. On November 27, 1985, still within the 45-day limit, the arresting officer notified the hearing examiner that he had to attend three court trials on December 4. Immediately, appellee's attorney was informed, and the hearing was continued to January 7, 1986, some 69 days after the request was received.

At the January 7 hearing, apparently for the first time, appellee's attorney argued that the hearing examiner lacked jurisdiction because of the delay in holding the hearing. The hearing examiner rejected this argument and upheld the driver's license suspension. The district court, relying on § 31-7-105(d), W.S.1977, reversed the hearing examiner because the hearing was held more than 45 days after the request was received.

Section 31-7-105(d) is not controlling in this case. As demonstrated by the notice of suspension, appellee's license was suspended "under provisions of the WYOMING IMPLIED CONSENT LAW (W.S 31-6-101 to 31-6-106)." Thus, the statute which controls in this instance is § 31-6-102(e). At the time in question and through two subsequent amendments, this statute provided that a hearing shall be scheduled within 45 days after the request is received. In construing statutes, this Court gives primary consideration to legislative intent. Huber v. City of Casper, Wyo., 727 P.2d 1002 (1986); City of Evanston v. Griffith, Wyo., 715 P.2d 1381 (1986). The intention of the law-making body must be ascertained as nearly as possible from the language of the statute. Wyoming Department of Revenue and Taxation-Excise Tax Division v. First Wyoming Bank, N.A.-Kemmerer, Wyo., 718 P.2d 31 (1986). Schedule means: "[T]o appoint, assign, or designate to do or receive something at a fixed time in the future." Webster's Third New International Dictionary, p. 2028 (1971). This Court will not read into laws what is not there. Wilcoxson v. Employment Security Commission of Wyoming, Wyo., 741 P.2d 611 (1987); Johnston v. Board of Trustees, School District # 1 West, Sheridan County, Wyoming, Wyo., 661 P.2d 1045 (1983). The clear intent of the provision at issue here is that the hearing must be scheduled within 45 days of receipt of the request. There is no requirement that the hearing be held within 45 days. In the instant case, the January 7 hearing was scheduled before the 45-day period had run.

We reverse the district court's order and reinstate the license suspension.

CARDINE, Justice, dissenting.

I am convinced that a hearing to review a driver's license suspension must be held within 45 days after request therefor.

Section 31-6-102(e), W.S.1977 (now § 31-6-102(f)), in effect at the time demand for hearing was made in this case, provided as follows:

"If * * * demand for hearing is made, the department shall forward the demand to the independent hearing examiner who shall schedule a hearing within forty-five (45) days after receipt of the request and provide the arrested person at least ten (10) days notice of the hearing."

The single question presented for our determination is whether § 31-6-102(f), supra, requires that the examiner schedule a hearing to be held within 45 days or, within 45 days, schedule a hearing for some undefined future date.

Legislative intent is the primary and foremost consideration in statutory construction. State Board of Equalization v. Tenneco Oil Company, Wyo., 694 P.2d 97 (1985). It is a well-settled rule of statutory construction that the legislature will not be presumed to intend futile things. Haddenham v. City of Laramie, Wyo., 648 P.2d 551 (1982).

We have...