Harrell v. Scheidt, 235

• Decision Date: 11 April 1956
• Docket Number: No. 235,235
• Citation: 92 S.E.2d 182,243 N.C. 735
• Court: North Carolina Supreme Court
• Parties: Jasper Hymrick HARRELL v. Edward SCHEIDT, Commissioner of Motor Vehicies.

Page 182

92 S.E.2d 182

243 N.C. 735

Jasper Hymrick HARRELL v. Edward SCHEIDT, Commissioner of Motor Vehicies.

No. 235

Supreme Court of North Carolina.

April 11, 1956

William B. Rodman, Jr., Atty. Gen., and Robert E. Giles, Asst. Atty. Gen., for defendant-appellant.

Talmadge L. Narron, Narron & Narron, Wilson, for plaintiff-appellee.

PARKER, Justice.

G.S. § 20-138 provides that 'it shall be unlawful and punishable, as provided in § 20-179, for any person * * * who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon the highways within the State.'

G.S. § 20-179 provides that for the first offense of violating the provisions of G.S. § 20-138 the punishment shall be a fine of not less than $100 or imprisonment for not less than 30 days, or both, in the discretion of the court; for the second violation of the same offense the punishment shall be a fine of not less than $200 or imprisonment for not less than six months, or both, in the discretion of the court; and for a third or subsequent conviction of the same offense the punishment shall be a fine of not less than $500 or by both fine and imprisonment in the court's discretion.

The relevant part of G.S. § 20-24(a) reads: 'Whenever any person is convicted of any offense for which this article', Article 2, Uniform Driver's License Act, 'makes mandatory the revocation of the operator's or chauffeur's license of such person by the Department, the court in which such conviction is had shall require the surrender to it of all operators' and chauffeurs' licenses then held by the person so convicted and the court shall thereupon forward the same, together with a record of such conviction, to the Department.' The Department referred to is the Department of Motor Vehicles.

G.S. § 20-17 is captioned 'Mandatory revocation of license by Department', and reads: 'The Department shall forthwith revoke the license of any operator or chauffeur upon receiving a record of such operator's or chauffeur's conviction for any of the following offenses when such conviction has become final: * * * 2. Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug.'

G.S. § 20-19 is captioned 'Period of suspension or revocation', and the pertinent part thereof reads: '(d) When a license is revoked because of a second conviction for driving under the influence of intoxicating liquor or a narcotic drug, the period of revocation shall be three years.'

The facts we have stated are those found by Judge Bone. As to the facts of the case there seems to have been no dispute, for neither party has excepted to his findings.

The defendant's only assignment of error is to the judgment. That brings here for review two questions: one, do the facts found support the judgment, and two, does any fatal error of law appear upon the face of the record? Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; Bond v. Bond, 235 N.C. 754, 71 S.E.2d 53.

We have presented for determination the sole question, whether the revocation of the operator's license of the plaintiff for three years, is, under the mandatory provisions of G.S. § 20-17, subd. 2, and G.S. § 20-19(d), a part of the punishment for the crime charged in the warrant issued by the Mayor's Court for the Town of Farmville.

The enactment of the North Carolina Uniform Driver's License Act, G.S., Ch. 20, Article 2, was designed under the police power of the State to safeguard the use of our highways from those who are not qualified to operate motor vehicles, from those guilty of certain violations of our statutes regulating the use of motor vehicles, e. g. manslaughter resulting from the criminally negligent operation of an automobile, drunken driving, etc., to exercise some measure of control over such operators, and generally to mke uniform, so far as practicable, the granting or withholding of this privilege to operate a motor vehicle in furtherance of the safety of the users of the State's highways.

In Commonwealth v. Ellett, 174 Va. 403, 4 S.E.2d 762, 767, the Court said: 'The right of a citizen to travel upon the public highways is a common right, but the exercise of that right may be regulated or controlled in the interest of public safety under the police power of the State. The operation of a motor vehicle on such highways is not a natural right. It is a conditional privilege, which may be suspended or revoked under the police power. The license or permit to so operate is not a contract or property right in a constitutional sense.'

In State v. McDaniels, 219 N.C. 763, 14 S.E.2d 793, 794, it is said: 'The Legislature has full authority to prescribe the conditions upon which it' (a driver's license) 'will be issued and to designate the court or agency through which and the conditions upon which it will be revoked.'

G.S. Ch. 20, Art. 2, Uniform Driver's License Act, vests exclusively in the State Department of Motor Vehicles the issuance, suspension and revocation of licenses to operate motor vehicles. Fox v. Scheidt, 241 N.C. 31, 84 S.E.2d 259; State v. Warren, 230 N.C. 299, 52 S.E.2d 879. Therefore, the courts have no authority to issue suspend or revode a driver's license to operate a motor vehicle. State v. McDaniels, supra; State v. Cooper, 224 N.C. 100, 29 S.E.2d 18; State v. Warren, supra; State v. Cole, 241 N.C. 576, 86 S.E.2d 203.

'A license to operate a motor vehicle is a privilege in the nature of a right of which the licensee may not be deprived save in the manner and upon the conditions prescribed by statute.' In re Wright, 228 N.C. 584, 589, 46 S.E.2d 696, 699. In this case the Court also said: 'No right accrues to a licensee who petitions for review of the order of the department when it acts under the terms of G.S. § 20-17, for then its action is mandatory. The court is granted authority to review only suspensions and revocations by the department in the exercise of its discretionary power. G.S. § 20-25.'

Under our decisions the revocation of a license to operate a motor vehicle is not a part of, nor within the limits of punishment to be fixed by the court, wherein the offender is tried. When the conviction has become final, the revocation of a driver's license by the Department of Motor Vehicles is a measure flowing from the police power of the State designed to protect users of the State's highways. G.S. § 20-179, which provides the punishment for driving while under the influence of intoxicating liquor or narcotic drugs, appears under Art. 3, Part 12--Penalties--of G.S. Ch. 20, Motor Vehicles, and G.S. § 20-17--Mandatory Revocation of License by Department--and G.S. § 20-19--Period of Suspension or Revocation--appear under Art. 2--Uniform Driver's License Act--of the same chapter of G.S.

In Prichard v. Battle, 178 Va. 455, 17 S.E.2d 393, 395, it was held that the revocation of an automobile driver's license following a conviction on a charge of leaving the scene of an accident in violation of the State statute, was not part of the penalty for the criminal offense. In holding that a pardon did not restore or revive the revoked license the Court said:

'The revocation is no part of the punishment fixed by the jury or by the court wherein the offender is tried. Commonwealth v. Ellett, supra, 174 Va. at page 411, 4 S.E.2d at page 765. Nor is it, in our opinion, an added punishment for the offense committed. It is civil and not criminal in its nature. Commonwealth v. Funk, 323 Pa. 390, 186 A. 65, 69, 70; Steele v. State Road Commission, 116 W.Va. 227, 179 S.E. 810.

'The question as to whether the revocation of a license because of an act for which the licensee has been convicted or because of the conviction itself is an added punishment has frequently been before the courts. The universal holding is that such a revocation is not an added punishment, but is a finding that by reason of the commission of the act or the conviction of the licensee, the latter is no longer a fit person to hold and enjoy the privilege which the State had theretofore granted to him under its police power. The authorities agree that the purpose of the revocation is to protect the public and not to punish the licensee.

'In Davis v. Commonwealth, 75 Va. 944, 946, this court held that the revocation of a license to sell intoxicating liquors because of an offense for which the licensee had been convicted was not a punishment for the offense, but was simply the withdrawal of the privilege which the State had granted the licensee to carry on a legitimate business. See, also, Cherry v. Commonwealth, 78 Va. 375.

'In Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002, it was held that the denial or revocation of a license to practice medicine to one who had been convicted of a felony was not added punishment for the offense. See, also, Mandel v. Board of Regents of University, 250 N.Y. 173, 164 N.E. 895, 896.

'In State v. Harris, 50 Minn. 128, 52 N.W. 387, 388, 531, in holding that the revocation of a liquor license was not a punishment for the offense committed the court said: 'While the revocation by the court follows the conviction as a consequence of the violation of the ordinance, it has no more the purpose or effect of punishment than if the license were revoked by the mayor or city council, neither of whom would have the power to impose punishment for the offense. There is a plain distinction between such a withdrawal of a special privilege which has been abused, the termination of a mere license, and the penalty which the law imposes as a punishment for crime.'

'The courts have uniformly held that the purpose of a disbarment proceeding is not to punish the offending attorney but to protect the public and to remove from the rolls of the court one who has been proved to be unfit to exercise the privilege granted to him. Norfolk & Portsmouth Bar Ass'n v. Brewry, 161 Va. 833, 837, 172 S.E. 282, and authorities there cited; People v. Culkin, 248 N.Y. 465, 162 N.E. 487,...