Hitchcock v. Department of Public Safety

Decision Date24 July 1959
Docket NumberNo. 49576,49576
PartiesBernard W. HITCHCOCK, Plaintiff-Appellee, v. DEPARTMENT OF PUBLIC SAFETY of the State of Iowa, Defendant-Appellant.
CourtIowa Supreme Court

Norman A. Erbe, Atty. Gen., of Iowa, Don C. Swanson, Asst. Atty. Gen., Carl H. Pesch, Asst. Atty. Gen., for appellant.

Pike, Hoxie, Butler & Teske, Waterloo, for appellee.

HAYS, Justice.

Plaintiff's petition for a writ of certiorari to the district court stated that his license to drive a motor vehicle had been suspended by the defendant, acting under the provisions of Section 321.210, Code 1958, I.C.A.; that the defendant acted illegally and exceeded its jurisdiction in that the asserted ground upon which the suspension was made is not one authorized by said statute. The suspension was for 30 days. The writ issued and all proceedings stayed pending hearing thereon. Defendant by answer denied most of the allegations of the petition and in paragraph 5(e) thereof, stated: 'That the plaintiff has failed to pursue the administrative remedies provided * * * under Section 321.211, * * * for an administrative hearing, from which hearing the legislature has specifically provided for a right of judicial review under Section 321.215, that the legislature in affording to each licensee the right to both administrative and judicial review has provided an exclusive means of review * * *'. Defendant then requested a separate adjudication of law points under 58 I.C.A.Rules of Civil Procedure, Rule 105. Two propositions were submitted to the court and both were decided adverse to the defendant. Right to appeal was denied under Rule 332, R.C.P. Thereafter under a stipulation of facts the writ was sustained and the suspension annulled. Defendant appeals.

The only errors assigned on this appeal concern the rulings upon the two legal propositions presented under Rule 105. This Rule provides: 'The court * * * must on application of either party, made after issues joined and before trial, separately hear and determine any point of law raised in any pleading which goes to the whole or any material part of the case. * * *'.

I. Error No. 1 is the court's negative answer to the following question: 'Does the establishment by the legislature of the process of notice and opportunity for administrative hearing under Section 321.211 require the plaintiff to exhaust his remedies thereunder before resorting to the procedure provided for by Section 321.215?'

Section 321.210 authorizes the defendant to suspend a license without a preliminary hearing under certain conditions. Section 321.211 provides that upon the request of the licensee, he shall be afforded an opportunity for a hearing within not to exceed 20 days after such request. Section 321.215 provides that any person whose license has been suspended may within thirty days thereafter petition a court of record for a hearing thereon, which hearing shall be had upon thirty days notice to the Commissioner and shall be determined as an original proceeding upon a transcript of the proceedings before the Commissioner and upon additional evidence and the pleadings as the court may require. The decision of the court shall be final.

The legal proposition presented is simply this: may one whose license has been suspended, under section 321.210, petition a court of record for a review thereof, under section 321.215, without first having had a hearing as authorized by section 321.211?

This is not a proceeding under section 321.215 but an action of certiorari. Whether the answer be 'yes' or 'no', such answer would in no way go 'to the whole or any material part of the case', nor is such issue in any way raised in the pleadings. Such law point presents nothing more than an attempt to obtain an advisory opinion on the question. This we decline to give and therefore pass this assigned error.

II. The negative answer to the second law point is also assigned as error. This point is: 'Does the establishment by the legislature of the process of notice and opportunity for judicial review and determination under section 321.215 require the plaintiff to exhaust his remedies thereunder before resorting to application for a writ of certiorari under Rule 306, R.C.P.?' Rule 306 provides: 'A writ of certiorari shall only be granted when especially authorized by statute; or where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have exceeded its, or his proper jurisdiction or otherwise acted illegally.'

An examination of the pleadings shows that certiorari is objected to as not being available to the plaintiff, for the sole reason that sections 321.211 and 321.215...

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8 cases
  • Sioux City v. Young
    • United States
    • Iowa Supreme Court
    • July 24, 1959
    ... ... by the court of the state's power to condemn such property for public purposes under a later enactment ...         In the recent ... ...
  • Dehning v. Eads
    • United States
    • Iowa Supreme Court
    • October 18, 1972
    ...immediate appeal to district court under § 321.215 went unchallenged. Nor was this issue settled in Hitchcock v. Department of Public Safety, 250 Iowa 1016, 98 N.W.2d 1 (1959), in which the department argued, and lost, the proposition that sections 321.211 and 321.215 constituted an exclusi......
  • Lehan v. Greigg
    • United States
    • Iowa Supreme Court
    • May 4, 1965
    ...shall be strictly limited to questions of jurisdiction or illegality of the acts complained of * * *.' In Hitchcock v. Department of Public Safety, 250 Iowa 1016, 1019, 98 N.W.2d 1, plaintiff brought action in certiorari alleging defendant acted illegally and exceeded its jurisdiction in su......
  • Danner v. Hass
    • United States
    • Iowa Supreme Court
    • April 6, 1965
    ...the court of record is final. Certiorari is the only available remedy, and we hold it is a proper one. Hitchcock v. Department of Public Safety, 250 Iowa 1016, 1019, 1020, 98 N.W.2d 1, 3. II. The plaintiff demanded a jury trial in the district court. This was denied. The court held that it ......
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