Department of Revenue and Taxation v. Irvine

• Decision Date: 02 February 1979
• Docket Number: No. 4909,4909
• Citation: 589 P.2d 1295
• Parties: DEPARTMENT OF REVENUE AND TAXATION, State of Wyoming, Appellant (Respondent below), v. William Chalmers IRVINE, Appellee (Petitioner below).
• Court: Wyoming Supreme Court

Page 1295

589 P.2d 1295

DEPARTMENT OF REVENUE AND TAXATION, State of Wyoming, Appellant (Respondent below), v. William Chalmers IRVINE, Appellee (Petitioner below).

No. 4909.

Supreme Court of Wyoming.

Feb. 2, 1979.

Rehearing Denied March 5, 1979.

V. Frank Mendicino, Atty. Gen. and James D. Douglass, Senior Asst. Atty. Gen., for appellant; James W. Gusea, Asst. Atty. Gen. (argued).

James R. McCarty, Casper (argued), for appellee.

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired ^*.

RAPER, Chief Justice.

This appeal arises from a trial de novo held in the district court to determine the legalities of a driver's license suspension proceeding which was conducted under the provisions of § 39-43.11, W.S.1957, 1975 Cum.Supp. ¹ (as amended, this statute is now § 31-7-105, W.S.1977) and the Wyoming Administrative Procedure Act, wherein the appellee-petitioner's driving privileges were restored by the district court following suspension by the Motor Vehicle Division, Department of Revenue and Taxation.

The appellant, the Department of Revenue and Taxation, State of Wyoming (hereinafter Department), claims,

1. That the district court had no jurisdiction to consider the petitioner's petition for review because it was not timely filed pursuant to the provisions of § 31-276.32, W.S.1957, 1975 Cum.Supp. (now § 31-7-133, W.S.1977) and Rule 72.1, W.R.C.P.;

2. That the records of traffic violations which were used as evidence in the administrative hearing were sufficiently certified to be admissible as evidence; and

3. That the trial court erred in ordering appellee's driving privileges restored.

We will reverse and remand to the district court with directions to vacate its order restoring driving privileges and dismiss the appeal for want of jurisdiction. Because of our disposition, there is no need to and we will not answer questions posed by issues two and three.

The petitioner was arrested for speeding on seven separate occasions between October 31, 1975 and June 28, 1976. He was also arrested for a signs and control devices violation during the same period. For all eight violations he was fined or forfeited bond. On October 8, 1976, as a result of those violations, the Department suspended appellee's driver's license for a period of ninety days pursuant to § 31-276.26(b)(i) W.S.1957, 1975 Cum.Supp. ² (as amended, this statute now appears as § 31-7-127, W.S.1977).

Appellee's driver's license was under suspension until January 1, 1977. On December 31, 1976 and January 1, 1977, petitioner was arrested for driving while his license was under suspension. ³ He was convicted of both violations on January 26, 1977. As a result of the suspension, which totaled an additional two years beyond the original ninety-day suspension, petitioner requested an administrative hearing which was held before the hearing examiner on March 8, 1977, pursuant to § 39-43.11, footnote 1.

It is not disputed that immediately after the hearing, on the date thereof, petitioner was verbally notified that the relief he requested was denied, at which hearing, according to information disclosed at oral argument before this court, petitioner's counsel was present. The form Order of Denial was dated and mailed to petitioner on March 10, 1977. The Order of Denial plainly states that the period of suspension began on March 9, 1977 and would terminate on March 10, 1979. On April 13, 1977, petitioner filed his petition for review with the district court.

The determinative question is what appeal procedure is applicable and available to petitioner that found in § 39-43.11 or that provided by § 31-276.32, or both. Section 39-43.11, footnote 1, purports to provide for an appeal procedure as set out in § 39-43.12, W.S.1957, 1975 Cum.Supp. ⁴ with sixty days in which to perfect a petition for review to the district court. Section 31-276.32, W.S.1957, 1975 Cum.Supp., ⁵ provides for an appeal for any person whose driver's license has been suspended to be taken within thirty days after suspension by petition to the district court.

These two provisions appear to have been enacted under conditions which indicate that the left hand may not have been fully aware of what the right hand was doing. In 1973, the legislature, by chapter 248, S.L.Wyo.1973, revised those sections of the state statutes, 1957, relating to the Department of Revenue and Taxation and created §§ 39-43.11 and 39-43.12. The origin was House Bill 236, which became House Enrolled Act No. 122, was signed by the President of the Senate and the Speaker of the House on February 24, 1973. Digest of Senate and House Journals, 42nd Legislature, page 795. In the same year, the legislature, by chapter 238, S.L.Wyo.1973, revised the Driver's License Act and created § 31-276.32 (276.32). The origin was SF 48, which became Senate Enrolled Act 109, also signed by the President of the Senate and Speaker of the House on February 24, 1973. Digest of Senate and House Journals, 42nd Legislature, page 142. We therefore can find no comfort in the doctrine that the later prevails over the earlier. Gale v. School District No. 4, 1936, 49 Wyo. 384, 54 P.2d 811. In construing statutes, the intention of the lawmaking body is to be ascertained as nearly as possible and in the language of the statute itself. Wyoming State Treasurer v. City of Casper, Wyo.1976, 551 P.2d 687.

In the first place, it is unreasonable to believe that the legislature intended to provide an alternative of 30 days or 60 days in which to file an appeal from the same order. In construing statutes, the presumption is that the legislature aims to enact legislation that is reasonable and logical. Ramsay Motor Co. v. Wilson, 1934, 47 Wyo. 54, 30 P.2d 482, 91 A.L.R. 908. It is also unreasonable that § 39-43.12(a) would be applicable, because it provides that the appeal would be "to the district court of the county Where the property or some part thereof is situated." Property is not involved. It is a more sensible conclusion to apply § 31-276.32 where the appeal is taken to "the district court in the county Wherein the person resides." To do otherwise would be attempting to fit a square peg into a round hole. We cannot alter the words of a statute and substitute others or move words from one section into another. Matter of Adoption of Voss, Wyo.1976, 550 P.2d 481.

We must construe together statutes relating to the same subject in order that if at all possible they may be harmonized, to avoid conflicting and confusing results. In re Adoption of Female Child X, Wyo.1975, 537 P.2d 719. When we examine these statutes together, we find the result ambiguous. When we find that uncertainty and susceptibility to more than one meaning exist, we will resort to statutory construction which we would not do if ambiguity is not found. DeHerrera v. Herrera, Wyo.1977, 565 P.2d 479.

Section 39-43.11 is a general statute covering the creation of a new office that of hearing examiner. His duties encompass other facets of the work of the Department of Taxation and Revenue including a large assortment of potential disputes besides driver's license suspension. Section 39-43.11(b) makes that implicit:

"(b) The duties of the hearing examiner will be to sit as the exclusive administrative hearing agency within the department to review All matters arising from driver's license and related matters Including, but not limited to the suspension of driver's license, financial responsibility matters, registration matters and other related matters pertaining to driver's license point system including the revocation, cancellation or suspension of driving privileges under such point system."

An examination of the Driver's License Act, §§ 31-276.1 through 31-276.37 indicates that there are a multitude of problems, other than driver's license suspension, which could arise requiring the services of a hearing examiner. The Financial Responsibility Act of this state, §§ 31-277 through 315, as well discloses that a myriad of difficulties could arise, requiring resolution by a hearing examiner. Finally, the hearing examiner has duties related to motor vehicle registration, §§ 31-22 through 31-96.27, an extensive subject in itself.

We consider §§ 39-43.11 and 39-43.12 to be of a general nature, whereas § 31-276.32 deals specifically with the denial of and suspensions of driver's licenses. If a special act is inconsistent with the general law, the provisions of the special act will control. Thomas v. State, Wyo.1977, 562 P.2d 1287; Carpenter & Carpenter v. Kingham, 1941, 56 Wyo. 314, 109 P.2d 463, reh. den. 56 Wyo. 314, 110 P.2d 824. General legislation must yield to special legislation on the same subject whether provisions are found in the same statute or in different statutes. Torres v. Laramie County School Dist. No. 1, 1973, 506 P.2d 817, cert. den. sub nom. Johnson v. Laramie County School Dist. No. 1, 414 U.S. 990, 94 S.Ct. 342, 38 L.Ed.2d 229, reh. den. 414 U.S. 1139, 94 S.Ct. 888, 38 L.Ed.2d 765; Higby v. State, Wyo.1971, 485 P.2d 380.

We are satisfied that there is further evidence of legislative intent to be found in the fact that the legislature at its 1977 session, corrected the inadvertent inconsistency it also must have discovered to exist. By chapter 111, S.L.Wyo.1977, it amended and renumbered § 39-43.11 as § 31-276.4:1, thereby making it a part of the Driver's License Act. Also it deleted the option of appeal to the tax commission or district court and requires first an appeal from the hearing examiner to the tax commission before appeal to the district court. Section 39-43.12(a) was amended to provide an appeal to the district court from the "board (commission)" to the district court. ⁶ As amended and renumbered, then, the only right of appeal to the district court is granted by § 31-276.32, supra footnote 5, now clearly a part of the Driver's License Act. All of former § 39-43.12, except subsection (a), has been dropped from the 1977...