Goers v. Carpentier

• Decision Date: 20 October 1960
• Docket Number: Gen. No. 10242
• Citation: 169 N.E.2d 845,27 Ill.App.2d 407
• Parties: Werner GOERS, d/b/a Goers Motor Sales, Plaintiff-Appellant, v. Charles F. CARPENTIER, Secretary of State, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 845

169 N.E.2d 845

27 Ill.App.2d 407

Werner GOERS, d/b/a Goers Motor Sales, Plaintiff-Appellant, v. Charles F. CARPENTIER, Secretary of State, Defendant-Appellee.

Gen. No. 10242.

Appellate Court of Illinois, Third District.

Oct. 20, 1960.

Willis P. Ryan, Mattoon, Harlan Heller and Orville F. Schoch, Mattoon, of counsel, for appellant.

Grenville Beardsley, Atty. Gen., William C. Wines and Theodore, G. Maheras, Asst. Attys. Gen., of counsel, for appellee.

ROETH, Justice.

Plaintiff is a motor vehicle dealer and has been so engaged since 1946. In 1957 he received the regular renewal license to engage in the business of selling Oldsmobile automobiles from the Secretary of State. On July 30, 1957, plaintiff was given notice by the Secretary of State that a hearing would be held on August 7, 1957, to determine whether or not plaintiff's 1957 license should be revoked, the ground of such proposed action being:

'The licensee has violated Section 16d(2) of the Motor Vehicle Law in that he has been guilty of a fraudulent act in connection with selling, bartering, exchanging, offering for sale, or otherwise dealing in motor vehicles.'

At the time this notice was given the Motor Vehicle Law of 1919 was still in effect. Ill.Rev.Stat., 1955, Chap. 95 1/2, Sec. 16f of this act provided:

'The Secretary of State is hereby authorized to revoke the license of any licensee if, after notice and hearing, it finds that such licensee has been guilty of any act or omission which would have been a ground for the denial of such license under Section 16d of this Act, or for violation of any of the provisions of this Act relating to the licensing and regulation of motor vehicle dealers.'

Section 16g of this act provided in part as follows:

'No license shall be revoked except after hearing by the Secretary of State thereon. The Secretary of State may fix the time and place of such hearing as it may desire, and shall give the licensee at least five (5) days notice of the time and place of such hearing. The order revoking such license shall not be effective until after ten days written notice thereof to the licensee, after such hearing has been held. The Secretary of State shall fix the time and place of such hearing. * * * All final administrative decisions of the Secretary of State under any of the provisions of Sections 16a to 16g, each inclusive, shall be subject to judicial review pursuant to the provisions of the 'Administrative Review Act', approved May 8, 1945, and all amendments and modifications thereof, and the rules adopted pursuant thereto. The term 'administrative decision' is defined as in Section 1 of the 'Administrative Review Act'.'

And Sec. 16d(2) of this act as referred to in the aforesaid notice provided:

'The Secretary of State shall deny the application of any person for a license as a motor vehicle dealer in this State if, after notice and hearing, the Secretary of State determines that such applicant:

* * *

* * *

'(2) Has been guilty of a fraudulent act in connection with selling, bartering, exchanging, offering for sale or otherwise dealing in motor vehicles.'

Pursuant to the aforesaid notice a hearing was commenced before a hearing officer designated by the Secretary of State. The plaintiff and his counsel were present at this hearing. Evidence was heard on behalf of the Secretary of State, at the conclusion of which the hearing officer stated that he did not have a full set of facts before him to make a decision either for plaintiff or the Secretary of State, whereupon he continued the hearing until September 18, 1957.

On September 3, 1957, counsel for the Secretary of State gave notice that he would appear before the hearing officer on September 6 and move for leave to amend the original notice of July 30, 1957. Although counsel for plaintiff were unable to be present before the hearing officer on September 6 because of prior commitments, and had so notified him by telephone and requested a week's continuance, the hearing officer granted the motion to amend. The amended notice was then filed and served upon plaintiff. This amended notice stated that a hearing would be held on September 18, 1957, to determine whether or not plaintiff's 1957 license should be revoked, the ground of such proposed action being:

'1. The licensee has violated provisions of the Illinois Motor Vehicle Law in that:

'(a) Said licensee has been guilty of a fraudulent act in connection with selling, bartering, exchanging, offering for sale, or otherwise dealing in motor vehicles.

'(b) Said licensee has failed to produce pertinent books, records, letters, and contracts concerning the licensee's business in the State of Illinois and relating to written complaints made against said licensee.

'2. The licensee has violated provisions of the Uniform Motor Vehicle Anti-Theft Act in that:

'(a) Said licensee has failed to deliver a certificate of title which was delivered to the licensee as a lien or encumbrance holder immediately upon final payment of such lien or encumbrance to the owner of the motor vehicle with proper evidence of satisfaction of such lien or encumbrance.

'(b) Said licensee has sold or transferred title to a motor vehicle without complying with the provisions of said Act.

'(c) Said licensee has failed to maintain a record of all used motor vehicles sold or exchanged by the licensee or received or accepted by the licensee for sale or exchange containing the information required by said Act.

'(d) Said licensee has denied a police officer authority to examine such records in his place of business as required by said Act.'

On September 18, 1957, the hearing proceeded to a conclusion with evidence on behalf of both the Secretary of State and plaintiff being heard. Following the conclusion of the hearing, the hearing officer apparently prepared a transcript of the record and presented it to the Secretary of State for examination and decision. On December 5, 1957, the Secretary of State filed an 11 page report in which he reviewed the testimony, made findings of fact based upon such review, made findings of law, overruled objections and directed an order to issue revoking plaintiff's 1957 dealer's license. The order of revocation was entered the same day. Plaintiff promptly sought a judicial review of this administrative decision. Obviously, plaintiff could not secure a review of the judgment revoking his 1957 license, in the Circuit Court and thereafter in the Appellate and Supreme Courts as provided by law, prior to the expiration of the 1957 licensing period. On December 13, 1957, plaintiff secured a stay order from the Circuit Court of Effingham County pursuant to the provisions of the Administrative Review Act, staying the decision of the Secretary of State. So far as the record in the case before us shows, this stay order is still in full force and the judicial review of the order revoking plaintiff's 1957 license is still pending in the Circuit Court of Effingham County.

The above matter is not before us for review. We have set out the highlights of the 1957 hearing because they bear upon the case before us in a limited manner as will hereinafter appear. The case before us is an appeal from the order of the Circuit Court of Sangamon County affirming the order of the Secretary of State, after hearing, in which order the Secretary of State denied the application of plaintiff for renewal of his automobile dealer's license for the year 1958.

At the outset certain statutory changes are called to our attention. The 1957 Illinois Motor Vehicle Law became effective on January 1, 1958. 1957 Ill.Rev. Stat.Chap. 95 1/2 Sec. 10-108. Although this new Act made certain changes in the statutory provisions, it provided in Sec. 10-106 that the provisions of the new Act, insofar as they are the same or substantially the same as those of any prior Act, should be construed as a continuation of the prior Act. By Sec. 5-101 it is provided in general that no person shall engage in the business of selling new motor vehicles unless licensed to do so by the Secretary of State. The section then provides that an application for such a license shall be filed with the Secretary of State upon forms prescribed by the Secretary of State. This section also in sub-section (h) provides for the renewal of a license issued for a previous year, in the following language:

'(h) A new motor vehicle dealer's license may be renewed upon application and payment of the fee required herein as in the case of an original license, provided, however, that in case an application for the renewal of an effective license is made during the month of December, such effective license shall remain in force until such application is granted or denied by the Secretary of State.'

As to both an application for a new dealer's license and a renewal of an existing dealer's license, sub-section (e) provides as follows:

'(e) The Secretary of State shall within a reasonable time after receipt thereof, examine an application submitted to him under this section and unless he makes a determination that the application submitted to him does not conform with the requirements of this section or that grounds exist for a denial of the application, as prescribed in Section 5-501 of this Act, grant the applicant an original new motor vehicle dealer's license in writing for his established place of business and a supplemental license in writing for each other place of business in such form as he may prescribe by rule or regulation which shall include the following:' (Emphasis supplied.)

Section 5-501 referred to above provides as follows:

'The license of a new motor vehicle dealer, used motor vehicle dealer, transporter, used parts dealer, wrecker or rebuilder may be denied, revoked or suspended if the Secretary of State finds that such new motor vehicle dealer, used motor vehicle dealer, transporter, used parts dealer, wrecker or rebuilder, or any officer,...