Ex parte State ex rel. Lyerly, 1 Div. 742

• Decision Date: 06 December 1956
• Docket Number: 1 Div. 742
• Citation: 91 So.2d 233,38 Ala.App. 630
• Parties: Ex parte STATE ex rel. Bill LYERLY, as Director Department of Public Safety.
• Court: Alabama Court of Appeals

Page 233

91 So.2d 233

38 Ala.App. 630

Ex parte STATE ex rel. Bill LYERLY, as Director Department of Public Safety.

1 Div. 742.

Court of Appeals of Alabama.

Dec. 6, 1956.

John Patterson, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for petitioner.

Henderson F. Helt, Jr., Mobile, for respondent.

HARWOOD, Presiding Judge.

A petition for mandamus was filed in this court by Bill Lyerly, as Director of the Department of Public Safety, to compel Judge Robert T. Ervin, Jr., as a judge of the 13th Judicial Circuit, to vacate an order made by him overruling the motion of Lyerly to strike an appeal filed in the Circuit Court of Mobile County by one Robert Maness, seeking a restoration of his driver's license, the same having been suspended by Lyerly upon Maness' conviction in the Recorder's Court of the City of Mobile.

Section 68, Title 36, Code of Alabama 1940, provides in parts pertinent to this proceeding, as follows:

'The director of public safety shall forthwith revoke the license of any driver upon receiving a record of such driver's conviction of any of the following offenses, when such conviction has become final: [Here is set forth a number of such offenses, including driving while intoxicated]. * * *

'The director of public safety is hereby authorized to suspend the license of a driver without preliminary hearing upon a showing by court records or other sufficient evidence that the licensee: Has been charged with an offense for which mandatory revocation of license is required upon conviction. * * *

'Upon suspending the license of any person as hereinbefore in this section authorized, the director of public safety shall immediately notify the licensee in writing and upon his request shall afford him an opportunity for a hearing as early as practical within not more than thirty days after receipt of such request in the county wherein the licensee resides unless the director of public safety and the licensee agree that such hearing may be held in some other county. Such hearing shall be before the director of public safety or his duly authorized agent, and upon such hearing the director of public safety or his duly authorized agent may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may require a re-examination of the licensee. Upon such hearing the director of public safety or his duly authorized agent shall either rescind his order of suspension or, good cause appearing therefor, may extend the suspension of such licensee or revoke such license. * * *

'Any resident or non-resident whose right or privilege to drive a motor vehicle in this state has been suspended or revoked as provided in this section shall not drive a motor vehicle in this state under a license, permit, or registration certificate issued by any other jurisdiction or otherwise during such suspension or after such revocation until a new license is obtained when and as permitted under this article. Any person denied a license or whose license has been cancelled, suspended or revoked by the director of public safety except where such cancellation or revocation is mandatory under the provisions of this article shall have the right to file a petition within thirty days thereafter for a hearing on the matter in the county court, circuit court or court of like jurisdiction in...