Ex parte State ex rel. Sullivan
| Decision Date | 24 February 1955 |
| Docket Number | 6 Div. 775 |
| Citation | 78 So.2d 322,262 Ala. 188 |
| Parties | Ex parte STATE ex rel. L. B. SULLIVAN, Director, State Dept. of Public Safety. |
| Court | Alabama Supreme Court |
Robt. P. Bradley, Asst. Atty. Gen., for petitioner.
Dan P. Barber, Hugo L. Black, Jr., Birmingham, for respondent.
This is an original petition for mandamus filed in this court by L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, to compel Judge J. Russell McElroy, as Presiding Judge of the Tenth Judicial Circuit of Alabama, to vacate an order made by him in connection with the suspension of the driver's license of Robert R. Lucas. The case is submitted here on the petition for mandamus and the answer of Judge J. Russell McElroy. The case calls for an interpretation of pertinent provisions of § 68, Title 36, Code of 1940, relating to the cancellation, suspension or revocation by the Director of Public Safety of a driving license.
L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, suspended the driver's license of Robert R. Lucas effective December 17, 1953, for a period of two months. This action was taken by the Director on the ground that Robert R. Lucas was an habitual violator of the traffic laws pursuant to the authority granted the Director by § 68, Title 36, Code of 1940. Thereafter a hearing was given to Robert R. Lucas on his request by L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, with the result that the period of suspension was kept at two months.
Robert R. Lucas then filed a petition in the Circuit Court of Jefferson County, Alabama, to have the aforesaid action of L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, reviewed. At the time the petition was filed Robert R. Lucas asked the court for a stay of the order suspending his driver's license pending a hearing on his petition. The stay was granted.
Thereupon L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, made a motion that the stay of the order be vacated. Judge J. Russell McElroy, as Presiding Judge of the Tenth Judicial Circuit of Alabama, overruled the aforesaid motion and it is this order overruling the aforesaid motion which L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, seeks to have this court vacate on the petition here filed in this court.
I. The state insists in this case that the circuit court had no authority or power to issue an order staying the order of the Director of Public Safety pending the hearing on the petition filed pursuant to Title 36, § 68, Code of 1940, because no such authority is conferred by the statute. It is true that an examination of the pertinent provisions of § 68 shows that there is no express authority to stay the order provided in the statute. We set out the pertinent provisions of the statute as follows:
'* * * 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 the county wherein such person resides, and such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon thirty days' written notice to the director of public safety, and thereupon to take testimony and examine into the facts of the case and to determine whether the petitioner is entitled to a license or subject to suspension, cancellation, or revocation of license under the provision of this article.'
The statute, however, satisfies us that the statute in effect contemplates a de novo trial in the circuit court. The court is authorized to take testimony and to examine the facts of the case and to determine whether the petitioner is entitled to a license or subject to suspension, cancellation or revocation of the license under the provisions of this statute. In other words, the court is empowered to have a hearing, to take testimony and to make a finding of its own. This necessarily means that the taking of an appeal to the circuit court by the filing of the petition provided in the statute ipso facto vacates the director's order of suspension.
In Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406, 407, ...
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Smith v. McGriff
...Safety's practice in the case of administrative appeals and by operation of law in appeals to Circuit Court, Ex parte State ex rel. L. B. Sullivan, 262 Ala. 188, 78 So.2d 322 (1955), and had the burden of proof on these hearings remained with the State, due process would have been satisfied......
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May v. Lingo
...action is purely administrative so far as mandatory revocations are concerned. Anything said to the contrary in Ex parte State ex rel. Sullivan, 262 Ala. 188, 78 So.2d 322, and in Ex part State ex rel. Lyerly, 38 Ala.App. 630, 91 So.2d 233, is disapproved. May does not question the finality......
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Tolbert v. McGriff, Civ. A. No. 76-122-N.
...files a petition for a de novo hearing in state court, the filing acts to vacate the order of suspension. Ex parte State ex rel. L. B. Sullivan, 262 Ala. 188, 78 So.2d 322 (1955). Though administrative remedies must be exhausted before an appeal can be taken, Ex parte State ex rel. Lyerly, ......
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Stehle v. State Dept. of Motor Vehicles
...Safety v. Robertson, 203 S.W.2d 950 (Tex.Civ.App.1947) (appeal from the department's refusal to issue a license).8 Ex parte State, 262 Ala. 188, 78 So.2d 322 (1955); In re Wright, 228 N.C 301, 45 S.E.2d 370 (1947), affirmed on rehearing, 228 N.C. 584, 46 S.E.2d 696 (1948); State v. Moyers, ......