Herndon v. South Carolina State Highway Dept., 16948

• Decision Date: 05 January 1955
• Docket Number: No. 16948,16948
• Citation: 85 S.E.2d 287,226 S.C. 384
• Parties: Witsell HERNDON, Respondent, v. The SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant.
• Court: South Carolina Supreme Court

Page 287

85 S.E.2d 287

226 S.C. 384

Witsell HERNDON, Respondent, v. The SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant.

No. 16948.

Supreme Court of South Carolina.

Jan. 5, 1955.

Atty. Gen., T. C. Callison, Asst. Atty. Gen., James S. Verner, for appellant.

Cabell, Singletary & Santos, Charleston, for respondent.

OXNER, Justice.

We are called upon to determine whether a circuit judge is empowered to review and modify or set aside the suspension of a driver's license by the Highway Department upon the ground that the driver had been convicted of operating a motor vehicle while under the influence of intoxicating liquor. The Court below held that it had jurisdiction to do so under Section 46-178 of the 1952 Code. The correctness of this conclusion is challenged by the Highway Department.

On March 11, 1954, respondent pleaded guilty before a magistrate of the offense of operating a motor vehicle while under the influence of intoxicating beverages, and paid a $50 fine. A report of his conviction, which was a first offense, was duly made to the Highway Department as required by Section 46-347 of the 1952 Code. On April 1, 1954, the Department, under the authority of Section 46-348, suspended his license to drive for a period of six months, effective immediately. Notice of such suspension was given to respondent on the following day.

On April 19th, counsel for respondent gave notice to the Highway Department that they would apply to the Court to modify the suspension of his driver's license so as to permit him to drive in the course of his employment. Attached to this notice was a petition and affidavit showing that respondent had been exclusively employed as a truck driver by a laundry in the city of Charleston for a long number of years. His duties required him to solicit laundry and dry cleaning and deliver same. He was dependent upon this work for his livelihood. It was alleged in the petition that the suspension of his driver's license deprived him of the means of supporting himself and his family and caused great inconvenience to his employer and the patrons whom he had served for many years. In a return filed by the Highway Department, it was alleged that the full suspension of respondent's license was mandatory and that he was not entitled to the relief sought. A hearing was duly had before the resident Judge of the Ninth Circuit, who on May 7, 1954, issued an order permitting respondent to operate a motor vehicle while engaged in the discharge of his duties as a laundry truck driver. The case is here on appeal by the Highway Department from this order.

In 1930, an act was passed requiring a license to drive a motor vehicle, and regulating the issuance of such licenses and providing for the suspension or revocation of same under certain circumstances. Act No. 603 of the Acts of 1930, 36 St. at L. 1057. Section 19 of this act authorized the Highway Department to refuse a license 'to any person for any cause satisfactory to said Department'. Under the terms of Section 9, the Department, 'For cause satisfactory' to it, was empowered to suspend or revoke the driver's license of any person for a period of not more than one year. It was further provided in Section 9:

'Any person denied license or whose license has been suspended or cancelled or revoked shall have the right to file an application within thirty (30) days thereafter for a hearing in the matter before a Circuit Judge at Chambers or in open Court, in the judicial circuit in which the applicant resides, and such Court or Judge is hereby vested with jurisdiction to set the matter for hearing upon ten (10) days' written notice to the Highway Department for such hearing, and thereupon to determine whether the applicant is entitled to a license or is subject to suspension or cancellation or revocation of license under the provisions of this Act, and the decision of the Circuit Judge in any such case shall be final and conclusive without right to appeal.'

Under the terms of Section 16 of the 1930 Act, it was made mandatory upon the Highway Department to revoke, for a period of twelve months, the license of any person convicted of certain designated crimes, which did not include driving under the influence of intoxicants. This section also authorized the Department, upon receiving a verified complaint that a licensee had committed certain specified acts affecting his competency to drive, to make an investigation, hold a hearing and take testimony. If upon such hearing, it was found that the driver was incompetent or unfit to operate a motor vehicle for any of the reasons stated in said act, the Highway Department was empowered to suspend or revoke the license of such person.

The foregoing act with certain amendments is now incorporated in Chapter 2 of Title 46 of the 1952 Code. The quoted portion of Section 9 of the 1930 Act now forms Section 46-178 of the 1952 Code. It was under this section that the Court below revoked in part the suspension of respondent's license.

In 1937 an act was passed making it mandatory upon the Highway Department to suspend the licese of any person convicted of operating a...