Hough v. McCarthy

Citation353 P.2d 276,5 Cal.Rptr. 668,54 Cal.2d 273
CourtUnited States State Supreme Court (California)
Decision Date02 June 1960
Parties, 353 P.2d 276 Robert D. HOUGH, Petitioner, v. Robert McCARTHY, as Director of Motor Vehicles, Respondent. L. A. 25775.

Page 668

5 Cal.Rptr. 668
54 Cal.2d 273, 353 P.2d 276
Robert D. HOUGH, Petitioner,
Robert McCARTHY, as Director of Motor Vehicles, Respondent.
L. A. 25775.
Supreme Court of California, In Bank.
June 2, 1960.
Rehearing Denied June 29, 1960.

Page 670

[353 P.2d 278] [54 Cal.2d 276] Robert D. Hough, in pro. per., Hackler, Flaum & Ansell, W. Neal Writer and Charles K. Hackler, Los Angeles, for petitioner.

[54 Cal.2d 277] Stanley Mosk, Atty. Gen., E. G. Funke, Asst. Atty. Gen., Warren H. Deering and Arthur deGoede, Deputy Attys. Gen., for respondent.

GIBSON, Chief Justice.

The Department of Motor Vehicles suspended petitioner's driver's license following his conviction of violating section 23102 of the Vehicle Code, which provides that the driving of a vehicle upon a highway by any person who is under the influence of intoxicating liquor is a misdemeanor. 1 Petitioner, contending that the department had no authority to take this action seeks a writ of mandate compelling Robert McCarthy, as Director of Motor Vehicles, to set aside the order of suspension.

The trial resulting in petitioner's conviction took place in the Los Angeles Municipal Court on October 21, 1959. After an inquiry which established that petitioner had not been involved in an accident in connection with the drunk driving violation and that he had not been previously arrested upon a similar charge, the court sentenced him to pay a fine and recommended that his license not be suspended.

The department on November 13, 1959, without notice or hearing, suspended petitioner's license for a period of 90 days commencing on October 21, 1959, and for an additional overlapping period effective November 27, 1959, through April 20, 1960. This order was made on the basis of an abstract of the court record which

Page 671

[353 P.2d 279] did not show that a recommendation against suspension had been made. The omission was called to the department's attention by petitioner at an informal hearing, and on February 24, 1960, after receipt of a corrected abstract, the department vacated the order of November 13 and made a new order suspending petitioner's driving privilege effective November 27, 1959, through April 20, 1960. Petitioner's driving record, produced at the informal hearing, showed that he was convicted in 1956 of violating former section 540(b) of the Vehicle Code (relating to the manner of making a left turn) and in February 1959 of speeding at a rate of 49 miles per hour in a 35-mile zone in violation of former section 510. *

The order of February 24 states that the suspension was made because of petitioner's conviction of driving while under the influence of intoxicating liquor and upon review of his driving record and that the action was taken in the interest [54 Cal.2d 278] of safety on the highways and under the authority of 'sections 13354-13953' of the Vehicle Code. A printed statement on the back of the order, incorporated by reference, declares that the application of ordinary means of securing public safety by inducement and persuasion has failed to arrest the increase in frequency of accidents due to persons driving while under the influence of intoxicants, that the frequency of such accidents will continue to be enhanced by the increased congestion on the highways, and that in the interest of safety of persons on the highways the director finds it necessary to suspend the operators' licenses of persons convicted of so driving. In March petitioner was notified that any further action by the department would be held in abeyance pending the outcome of this proceeding and that petitioner is entitled to drive a motor vehicle until further notice.

Both the court in which a person is convicted of driving while under the influence of intoxicating liquor and the Department of Motor Vehicles have statutory powers with respect to suspension of the operator's license of the person convicted. Section 13201 of the Vehicle Code provides that the court may suspend the privilege of any person to operate a motor vehicle, for a period not to exceed six months, upon conviction of misdemeanor drunk driving under section 23102. 2 Section 13354 provides: 'The department may suspend or revoke the privilege of a person to operate a motor vehicle upon a conviction of the licensee of operating a vehicle while under the influence of intoxicating liquor.' 3

Petitioner contends that section 13354 is rendered inapplicable here by subdivision (a) of section 13352, which provides that the department, upon receipt of an abstract of a court record showing a person's first conviction for misdemeanor drunk driving, shall immediately suspend his driver's license for a period of 90 days unless the court suspends the privilege under section 13201 'or recommends no suspension.' 4

Page 672

[353 P.2d 280] It is petitioner's position that section 13354 is a general[54 Cal.2d 279] provision and that it is controlled and limited by section 13352, which, he asserts, is a specific statute directly applicable here and which, by its terms, does not authorize a suspension by the department where the court has recommended, upon a first conviction of misdemeanor drunk driving, that there be no suspension.

A court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and effect to all of their provisions. County of Placer v. Aetna Cas., etc., Co., 50 Cal.2d 182, 188-189, 323 P.2d 753; In re Estate of Stevens, 27 Cal.2d 108, 119, 162 P.2d 918; County of Los Angeles v. Frisbie, 19 Cal.2d 634, 641-642, 122 P.2d 526; Southern Pac. Co. v. Railroad Comm., 13 Cal.2d 89, 100, 87 P.2d 1055. This rule applies although one of the statutes involved deals generally with a subject and another relates specifically to particular aspects of the subject. See Pierce v. Riley, 21 Cal.App.2d 513, 518, 70 P.2d 206; Cohn v. Isensee, 45 Cal.App. 531, 536-537, 188 P. 279.

Section 13354 gives the department a permissive, discretionary power, since it states that the department 'may' suspend or revoke, whereas section 13352, which declares that the department 'shall immediately' suspend or revoke, is mandatory with respect to the specific situations there referred to. Under section 15 of the Vehicle Code, "Shall' is mandatory and 'may' is permissive,' and there is nothing to indicate that the words were used in any other sense in the provisions involved here. Section 13354, in giving the department [54 Cal.2d 280] a discretionary power to suspend, by its terms applies generally in all cases where a person has been convicted of drunk driving, and it contains no limitation upon the department based on a suspension made by the court or on a recommendation against suspension. To the contrary its provisions, which empower the department to revoke as well as suspend, show that in the event of a first conviction of misdemeanor drunk driving the department has broader authority with respect to licenses than the courts, which are only given the power of suspension in such cases. Veh.Code, § 13201, subd. (a).

We do not find any language in the statutes which would justify a conclusion that the 'unless' clause in subdivision (a) of section 13352 was intended to apply to functions of the department other than the mandatory duty imposed by that subdivision. The broad permissive powers of the department under section 13354 are obviously limited by the mandatory provision of that subdivision to the extent that the department may not refrain from acting when a mandatory suspension for 90 days is required. Subdivision (a), however, does not purport to place any other limitation upon the department, and the court has not been given any authority to make a determination that will preclude the department from exercising its discretionary powers to suspend or revoke. Insofar as concerns those powers, the only effect of a court recommendation against suspension is to relieve the department of any manda

Page 673

tory [353 P.2d 281] duty under subdivision (a) and to make available judicial advice or suggestion which the department may accept or reject. Several other sections of the Vehicle Code, which refer to court recommendations in connection with the suspension of drivers' licenses, are not helpful in determining the proper meaning of subdivision (a), since they merely demonstrate that words such as 'recommends' are used in the code both in a mandatory and advisory sense. 5

[54 Cal.2d 281] It should be pointed out that the department's discretionary powers also exist when the court in which the driver is convicted takes some action other than recommending that there be no suspension. The court, as we have seen, may suspend the license instead of recommending against suspension; since both situations are treated identically in the 'unless' clause of subdivision (a) of section 13352 and since both come equally within the broad language of section 13354, it is obvious that the Legislature intended that in either instance the department should have the same discretionary powers, namely, to suspend for a period of not over six months or to revoke. Even as to cases where the court is silent concerning suspension and the department therefore has a mandatory duty to suspend for 90 days under subdivision (a), there is no provision that imposition of the mandatory suspension exhausts the power of the department to act or precludes it from increasing the length of the suspension period or from revoking the license under its permissive powers. The effect of section 13352 is to provide for mandatory minimum suspensions in the situations there specified. Any other construction of the statutes would compel us to read into section 13354 restrictions that are not made there and are not required in order to carry out the purposes of any of the sections.

Statutory provisions relating to suspension or revocation of licenses by both the department and the...

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