Goodwin v. Superior Court, 5179

• Decision Date: 27 December 1948
• Docket Number: 5179
• Citation: 201 P.2d 124,68 Ariz. 108
• Parties: GOODWIN v. SUPERIOR COURT OF YAVAPAI COUNTY et al
• Court: Arizona Supreme Court

201 P.2d 124

68 Ariz. 108

GOODWIN v. SUPERIOR COURT OF YAVAPAI COUNTY et al

No. 5179

Supreme Court of Arizona

December 27, 1948

Rehearing Denied February 10, 1949.

Original application for writ of prohibition by M. A. Goodwin Superintendent of the Division of Motor Vehicles, Arizona State Highway Department, applicant, against the Superior Court of Yavapai County, State of Arizona, and W. E Patterson, Judge of the Superior Court of Yavapai County Arizona, respondents, to prohibit respondents from proceeding with a certain action brought to review the applicant's action in revoking a chauffeur's license. On motion by respondents to dismiss.

Motion denied and alternative writ of prohibition made peremptory.

Evo DeConcini, Atty. Gen. and R. G. Langmade, Asst. Atty. Gen., for applicant.

T. J. Byrne, of Prescott, for respondents.

Stanford Chief Justice. LaPrade and Udall, JJ., concurring.

OPINION

Stanford, Chief Justice.

Applicant M. A. Goodwin, as Superintendent of Motor Vehicle Division of the Arizona State Highway Department, filed an original application for a writ of prohibition before this court asking that an alternative writ of prohibition issue to respondents, the Superior Court of Yavapai County and Honorable W. E. Patterson, Judge of said court, prohibiting the respondents from in any way proceeding with a certain action pending in the Superior Court of Yavapai County, Arizona, or to appear in the Supreme Court and show cause why the same should not be done and that at said hearing the alternative writ of prohibition be made peremptory.

The proceeding out of which the present application grows was instituted by Ross A. Spangler against respondent Goodwin, and is as follows:

"I. That he is a resident of Yavapai County, Arizona; and respondent is the duly appointed, qualified and acting Superintendent of the Division of Motor Vehicles, Arizona State Highway Department, and in charge of the issuance, suspension and revocation of motor vehicle driver's licenses.

"II. On or about October 4, 1948, petitioner having theretofore been informed as to the penalty which would be imposed, plead guilty in the Justice Court, Norfolk, Nebraska, to a charge of operating a motor vehicle on the public highways of the State of Nebraska, while under the influence of intoxicating liquor, and upon the entry of such a plea, petitioner was fined by the said Justice of the Peace, the sum of $ 50.00, and costs, which he thereupon paid; and, thereupon, immediately left the State of Nebraska in his automobile, and returned to his home in Prescott, Arizona.

"III. That the plea of guilty made by petitioner, as before stated, was solely for the reason of his convenience and economy, petitioner not feeling himself guilty of the offense charged, but being unable to spend the time and incur the cost involved in contesting the said charge.

"IV. On the 25th day of October, 1948, respondent, without giving petitioner any opportunity to be heard, and without any process in law, entered his order revoking the petitioner's chauffeur's license number 11725; and thereafter, a representative of respondent demanded of petitioner, under threat of a criminal prosecution, the return of said license, which petitioner surrendered to the said agent of respondent.

"V. Petitioner is an employee of the City of Prescott, a municipal corporation, and as part and parcel of the duties of his employment, is required to drive a motor vehicle in the ownership of the said city, and is required, under the laws of the State of Arizona, to be a licensed chauffeur.

"IV. That the revocation of petitioner's said license by respondent was and is without any authority in law; and deprives petitioner of his right to the use of property, and the making of a livelihood, and of the privilege of operating a motor vehicle upon the highways of the State of Arizona.

"Wherefore, petitioner prays that a hearing be given him upon the matters set forth in his foregoing petition, after notice given to respondent, as required by the provisions of 66-252, A.C.A.1939."

Thereafter, respondent Goodwin filed in said action his motion for summary judgment, upon the ground that there was no genuine issue as to any material fact, and that respondent was entitled to judgment as a matter of law. This motion was denied, the effect of such ruling and the court's refusal to dismiss the petition being a determination that said court has jurisdiction to entertain the suit. It appears that the judge of said court will proceed to try the case and render a judgment therein unless this court orders otherwise by writ of prohibition.

In answer to the alternative writ of prohibition the respondents filed a motion to dismiss and our consideration of such motion will dispose of the prohibition matter now before us.

It will be observed that respondents' contention in this matter is based on the right of Ross A. Spangler to a hearing before the superior court of Yavapai County under section 66-252, A.C.A.1939, which reads:

"Review by court of suspension or revocation. -- Any person denied a license, or whose license has been revoked by the division, except when such revocation is mandatory hereunder, may, within thirty (30) days thereafter, file a petition for a hearing in the matter in the superior court in the county where he resides, and such court shall set the matter for hearing upon ten (10) days written notice to the vehicle superintendent, and thereupon hear and determine the petition."

Another section of our code, 66-248, in part, reads:

"(b) The division shall forthwith revoke the license of any person upon receiving a record of his conviction of any of the following offenses:

* * *

" Driving a vehicle while under the influence of intoxicating liquor or a narcotic drug;".

Section 66-250, A.C.A.1939, under the heading of "Revocation of non-resident's permit -- Penalty -- Revocation on foreign conviction" under that part pertaining to "foreign conviction" reads:

"* * * The division shall suspend or revoke the license of any resident upon receiving notice of the conviction of such person in another state of an offense therein, which if committed in this state, would be grounds for the suspension or revocation of the license of an operator or chauffeur, * * *."

The record before us shows an abstract of court record from Norfolk, Nebraska, certifying that on the 4th day of October, 1948, Ross A. Spangler was charged and convicted in the justice court of Madison County, Nebraska, of the crime of drunken driving and the judgment and sentence of the court was that he pay the fine of $ 50.00 and costs of $ 4.00. The copy specifically recites that the said Ross A. Spangler "unlawfully operated a motor vehicle upon the highways in said county while under the influence of intoxicating liquor", and the order further shows that said Ross A. Spangler thereupon plead guilty to the crime charged. As a further part of said record we find the following:

"It is further ordered by the Court that the defendant's driving privilege be and the same hereby is suspended for a period of thirty (30) days from this date."

On receipt of the certified copy of said conviction, the applicant herein, M. A. Goodwin, superintendent of the division of the motor vehicle department of the State Highway Department of Arizona, without a hearing or any notice to the license holder, issued an order of revocation of the license of Ross A. Spangler. The order was issued on the 25th day of October, 1948, and decided, among other things, that the license of said Spangler was revoked, the revocation to remain in effect for a period of one year.

Primarily and as a matter of statutory construction, it is the position of the respondents that Spangler was entitled to have the Superior Court of Yavapai County review, under the provisions of section 66-252, supra, applicant's order revoking his chauffeur's license, it being maintained that the phrase "* * * except when such revocation is mandatory hereunder, * * *" (emphais supplied) appearing therein, refers only to those offenses involving motor vehicles committed within Arizona as is set forth under section 66-248, supra. We believe that this contention is untenable and does not comport with either logic or reason. Section 66-250, supra, which provides for revocation on foreign conviction precedes the provision for court review, and it specifically provides that the division (motor vehicle) shall revoke a resident's license upon notification of his conviction in a...