Ellis v. State Rd.

• Decision Date: 08 December 1925
• Docket Number: (No. 5580),(No. 5582),(No. 5581)
• Court: West Virginia Supreme Court
• Parties: Millard Ellis v. State Road Commission.Kyle Mounts v. State Road Commission.William Ellis v. State Road Commission.

100 W.Va. 531

Millard Ellis

v.State Road Commission.

Kyle Mounts

v.State Road Commission.

William Ellis

v.State Road Commission.

(No. 5580)

(No. 5581)

(No. 5582)

Supreme Court of Appeals of West Virginia.

Submitted November 10, 1925.

Decided December 8, 1925.

1. Automobiles Conviction of One Violating Statute Not Ordinarily Necessary Before Revocation of Permit.

When a statute punishes an act as a misdemeanor and in addition thereto provides a revocation of a certain permit, a conviction of one violating the statute is ordinarily not necessary before the permit may be revoked, (p. 533.)

(Fines, 25 C. j. § 93 [Anno.].)

2. Mandamus) Mandamus Cannot be Employed to Control Power of State Road Commission Expressly Made Discretionary by Statute.

Mandamus cannot be employed to control a power of the State Road Commission, expressly made discretionary by the statute. Point 1 of the Syllabus of County Court v. Holt, 61 W. Va. 154 applied, (p. 539.)

(Mandamus, 38 C. j. §§ 258, 356.)

(Note: Parenthetical references by Editors, C. j. Cyc. Not rart of syllabi.)

Separate original proceedings by the State, on the relation of Kyle Mounts, Millard Ellis and William Ellis, for writs of mandamus to be directed to the State Road Commission.

Writs denied.

E. L. Hogsett, for relators.

H. B. Lee, Attorney General, B. Dennis Steed, Assistant Attorney General, and Elmer L. Stone, for respondent.

Hatcher, Judge:

On Oct, 12, 1925, the State Road Commission revoked a taxi-cab permit (Class H 3) and a chauffeur's license, both of which had been issued to Kyle Mounts of Logan County. Mounts filed a petition in this court charging that the action of the Commission was arbitrary, capricious and illegal. Upon his prayer an alternative writ of mandamus was awarded against the Commission.

In answer to the writ the Commission denied that it acted arbitrarily, etc., because, as was proven at the hearing of the case, Mounts had violated the provisions of the law contained in Sec, 82, Ch. 17, Acts of 1925.

Shortly after the action of the Commission, Mounts was acquitted, in the circuit court of Logan County, of the charge of violating the provisions of Sec. 82, etc. Thereupon he requested the Commission to reinstate his permit and license, but his request was refused.

The evidence taken at the hearing before the Commission shows that the petitioner operated two taxi-cabs. He drove one taxi in person and employed Leslie Gee to operate the other. About Aug. 1925, passengers were received on each of petitioner's taxis at places within 100 feet of a regularly designated stop of the Logan Bus Company. The latter had a permit to operate vehicles over a fixed route from Logan to Omar, and had established regular stops on this route. At the time of the occurrence complained of, petitioner announced, "Here is a car going to Omar." No evidence was offered before the Commission in palliation of this act,

The provision of See. 82, etc., violated is:

"Provided, however, that vehicles operating under Class H-3 may receive passengers along routes for which a certificate of convenience has been granted, but not at or within two hundred feet of any building owned or maintained as a designated stop."

The penalty for a breach of this mandate is contained in the following extract from Sec, 82, Ch. 17 as amended by the Acts of 1925.

"Any person violating any of the provisions of this section or the rules and regulations regularly adopted by the State Road Commission as authorized herein, shall be guilty of a misdemeanor and upon conviction thereof shall be punished with a fine of not less than Five Dollars nor more than Two Hundred Dollars, and in addition thereto such certificate of convenience may be suspended or revoked by the State Road Commission upon the complaint to it of any person interested or by the Commission on its own motion, after hearing duly had upon at least five days' notice to all parties interested.''

There are two questions to be answered in this case. (1) Can the Commission revoke a certificate of convenience because of a violation of the statute until there has been a conviction therefor in a court authorized to try misdemeanors? (2) Is the revocation of the chauffeur's license because of such violation arbitrary or illegal?

(1) An analysis of the statute shows that for its violation a two-fold punishment is provided. One part of this punishment is in personam, by a fine imposed in a regular criminal proceeding, where the offense must be established beyond all reasonable doubt. The other part of the punishment is in rem, by revocation of a permit, upon a hearing before the Commission, where it is requisite that the offense be established by only a preponderance of the evidence. There is nothing novel about legislation providing a fine (or fine and imprisonment) and also a forfeiture or penalty. But our statute is unique in that the hearing, in re the revocation of a permit, is had before a Commission instead of before a court. Vet there can be no doubt as to the intention of the Legislature in th is respect. The statute prior to its amendment in 1925 was:

"Any person violating any of the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished with a fine of not less than $5.00, nor more than $200.00, and in addition thereto such permit may be re- voked or the license taken away by the commission, or other licensing* authority having jurisdiction thereof.''

Comparison of the amended statute with the statute before amendment shows that the sole purpose of the amendment was to provide for a hearing before the Commission. A "hearing" includes the introduction of evidence, the argument of counsel, and the pronouncement of the decree. Babcock v. Walf, 70 Iowa 676. Therefore the hearing before the Commission contemplated by the Legislature is a complete trial of the in rem proceeding. Why should the Legislature have provided such a hearing if it is a nullity unless preceded by a conviction in a criminal case? Those who oppose independent action by the Commission say that a complete trial is not to be had at such hearing; that the Legislature intended for the Commission to await the conviction of an offender in a criminal court, no matter how long the delay, and then to try the convicted one a little bit, in fact just enough for the Commission to determine whether the violation be of such character as to warrant revocation of the offender's permit. This view overlooks the fact that the character of the offence could be ascertained by the Commission from the criminal proceeding and a hearing for that purpose alone would therefore be bootless. It also ignores the congestion and dangers of our highways and the necessity, patent to the Legislature, of providing a summary treatment of those who hinder or endanger travel thereon. The personal punishment of the offender can await the slow course of criminal procedure, but the welfare and safety of the public demand that the right to use our highways be speedily taken from those who abuse this privilege. There are no words in the statute limiting or modifying the word "hearing". Why seek in conjecture to supply words of limitation, the effect of which would be to hamper the efficiency of the Commission, to inconvenience and possibly endanger the public, and to delay justice? The Commission is composed of men carefully selected for their judgment and integrity. Its members are sworn to the faithful performance of their duties.

Are they not as well qualified, as the average jury to weigh the evidence of an alleged violation of the road law? If their discretion is sufficient to pass on the gravity of the offence, as suggested, then it is also sufficient to ascertain whether a violation has in fact occurred.

Another objection advanced to the right of the Commismission to take the initiative in this case, is that the permit is a valuable property right, no appeal from the decision of the Commission is provided in the amended statute, the Commission is composed of men not necessarily learned in legal procedure, and the Legislature could not have intended to confer on these men independent authority in such an important matter, else an appeal would have been provided. But the sponsors of this argument have overlooked the express provisions of Sees. 2 and 3, Ch. 110, Code. "In every ease, matter or proceeding before a county court, council of a city, town or village, justice or other tribunal, the record or proceeding may after a judgment or final order therein be removed by a writ of certiorari to the circuit court of the county in which such judgment was rendered or order made." Sec. 2, Ch. 110, Code. "Upon the hearing, such circuit court shall, in addition to determining such cpiestions as might have been determined upon a certiorari, as the law heretofore was, review such judgment, order or proceedings, of the county court, council, justice or other inferior tribunal upon the merits, determine all questions arising on the law and evidence, and render such judgment or make such order upon the whole matter, as law and justice may require." Sec. 3, Ch. 110, Code. The hearing before the Commission is certainly a proceeding; the determination of the Commission on the hearing is a...