In re Kesler, No. B-143-59.

CourtUnited States District Courts. 10th Circuit. United States District Court of Utah
Writing for the CourtPICKETT, Circuit , and CHRISTENSON and CHILSON
Citation187 F. Supp. 277
PartiesIn the Matter of Harold Beck KESLER, Bankrupt.
Decision Date29 August 1960
Docket NumberNo. B-143-59.

187 F. Supp. 277

In the Matter of Harold Beck KESLER, Bankrupt.

No. B-143-59.

United States District Court D. Utah, Central Division.

August 29, 1960.


E. J. Skeen, of Skeen & Skeen, Salt Lake City, Utah, for bankrupt.

187 F. Supp. 278

Gordon A. Madsen, Asst. Atty. Gen. (Walter L. Budge, Atty. Gen., with him on the brief), for respondent.

Before PICKETT, Circuit Judge, and CHRISTENSON and CHILSON, District Judges.

CHRISTENSON, District Judge.

The bankrupt was duly discharged from liability on a properly scheduled judgment for personal injuries sustained by the creditor as a result of the bankrupt's adjudicated negligence in the operation of an automobile. Notwithstanding such discharge, his motor vehicle registration and operator's license are under suspension pursuant to the terms of the Utah Motor Vehicle Safety Responsibility Act1 for non-payment of the judgment. Contending that provisions of the State law2 authorizing such suspension are unconstitutional3 and void because they conflict with Section 17 of the Bankruptcy Act,4 the bankrupt, as petitioner, has brought this three judge court proceeding5 in an attempt to compel restoration by state authority of his driving privileges.

On June 21, 1957, Judgments were entered in a State Court for a total of $6,523.04

187 F. Supp. 279
against Kesler and in favor of the guardians ad litem of certain minors.6 These constituted provable claims which were discharged in bankruptcy on December 31, 1959. In the meantime, the judgment creditors, acting pursuant to Section 41-12-13 (quoted in the margin) requested the Clerk of the State Court to forward to the Department of Public Safety of the State of Utah certified copies of the Judgment. Whereupon, in accordance with the State law, the Department of Public Safety suspended the petitioner's license to operate a motor vehicle in the State of Utah and suspended the registration of his motor vehicle. The operator of a one-man automobile repair business, he has been greatly handicapped in the making of a living by the action of the State

He prays that the provisions of the law relied upon by the State be declared void, and that designated officers of the Department of Public Safety of the State of Utah be required to reinstate his suspended rights, or that he be granted other appropriate relief.

The respondent, Department of Public Safety (Financial Responsibility Division) of the State of Utah, conceding that this court has jurisdiction over the matters in issue and is empowered to determine the validity of the act as against respondent's attack, contends that it constitutes a valid exercise of the police power not in conflict with Section 17 of the Bankruptcy Act.

It must be recognized that automobile financial responsibility acts, which by now are common in the majority of states of the United States, have been rather consistently upheld against constitutional and other objections.7 This has been on the theory that the State, in the exercise of its police power, may reasonably regulate the use of its highways, with the objective, among others, of minimizing the hardship flowing from the financial irresponsibility of users involved in accidents. Berberian v. Lussier, R.I.1958, 139 A.2d 869; DeVries v. Alger, 1950, 329 Mich. 68, 44 N.W.2d 872.

In Reitz v. Mealey,8 the United States Supreme Court declared that any appropriate means adopted by a State to insure competence and care on the part of its licensees and to protect others using its highways is consistent with due process of law. It determined that a New York statute providing for the suspension of an operator's license for three years if a judgment against him resulting from the negligent operation of a motor vehicle was not paid or discharged other than through bankruptcy, was valid and enforceable. In 1936 and 1939 certain amendments to the act so sustained had been adopted, which gave the creditor control over the restoration of a debtor's license and its continued force during the three year suspension period and made it the duty of the county clerk to certify a judgment only on written demand of the judgment creditor or his attorney. The Supreme Court, however, declined to pass upon the validity of these amendments, holding that the district court had properly thus abstained on the ground that under New York law a statute in itself constitutional would not be affected by an unconstitutional amendment. Petitioner says that the question avoided in Reitz v. Mealey is squarely presented here.

Petitioner's reliance is almost wholly upon Reitz v. Mealey; indeed, that decision necessarily must constitute the base and meridian of our survey of the applicable law since it represents the latest, in

187 F. Supp. 280
fact the only, authoritative and pertinent case that has been called to our attention or that we have been able to find.9 Reitz in effect lays down these propositions which we need not redebate with reference to cases like the one before us: (1) Without creditor controls, automobile financial responsibility laws such as Utah's would be both a legitimate exercise of the police power and consistent with the Bankruptcy Act; (2) If provisions of the act under attack are severable from its clearly valid provisions so that the court reasonably can say that the legislature intended the latter to stand despite the possible invalidity of the challenged provisions, and if under the unchallenged provisions the petitioner would be entitled to no relief, the court should not declare the act unconstitutional or invalid; and (3) If the facts do not invoke the operation of a challenged provision of the act, it being severable, the court should not pass upon its validity

Despite some variation in expressions, we perceive no significant difference between the creditor controls of the Utah statute and of the New York amendments. Without these creditor controls the Utah statute clearly would be valid. Are they severable from the other provisions of the statute under which the petitioner's driving rights were suspended, in view of the separability clause set out in the Utah act?10 This problem too should be decided in view of state law, as the Supreme Court in Reitz and in Meyer v. Wells Fargo & Co.,11 indicated.

In Utah it is recognized that severability or separability, where part of a statute is unconstitutional, is a matter primarily of legislative intent.12 The test, fundamentally, is whether the legislature would have passed the statute without the objectionable part, or whether the parts are so dependent upon each other that the court should conclude that the intent was that the statute be effective only in its entirety.13 The courts may be aided in the determination of legislative intent by the inclusion within a statute of a saving clause, which will create a presumption of separability.14 But this presumption is not controlling if it is recognizable that the legislature would not have enacted the remaining provisions alone, or that standing alone they would not provide for an operative whole.15 In Reitz, supra, the Supreme Court was of the view on principles similar to those recognized in the Utah decisions16 that the questioned

187 F. Supp. 281
provisions were separable from the original statute

The prevailing opinion stated on this point 314 U.S. 33, 62 S.Ct. 28:

"There is no evidence of intent that if the amendments could not stand the legislation as a whole should fail. On the contrary, the legislative history discloses a persistent purpose that such a scheme for the control of motor drivers should remain. Successive and frequent amendments have dealt with details but have left intact the major features of the legislation. In any case, we should accord great weight to the District Court's view of New York law. But an examination of the authorities convinces that in this case any contrary view is untenable."

With respect to the amendment giving the creditor control over the restoration of the operator's privileges prior to satisfaction of the judgment in full, we believe that we are bound by the Supreme Court's view that a justiciable question would arise only if the creditor were shown to have invoked the provision by consenting to the renewal.17 How this question ever would be raised, with the creditor not likely to do so if he has consented to the restoration and the debtor not willing to, is not clear to us as a practical matter, but we must follow the higher court in thus straining to avoid the constitutional issue. At least we have looked at these restoration provisions as background on legislative intent in connection with the other provisions of the law that are open to question before us. These other provisions relate to the control of the creditor in bringing about the suspension in the first instance. Unlike the situation in Reitz, we do not believe that we can or should avoid the testing of the latter problem here.

The New York statute, disregarding the amendments, made it the duty of the county clerk to certify to the Commissioner of Motor Vehicles any judgment of the kind involved here which had become final and remained unsatisfied for fifteen days. The Supreme Court said:

"It is
...

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2 practice notes
  • Kesler v. Department of Public Safety, Financial Responsibility Division, State of Utah, No. 14
    • United States
    • United States Supreme Court
    • March 26, 1962
    ...U.S.C. § 35, 11 U.S.C.A. § 35. A three-judge District Court, 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, upheld the statute and denied relief, 187 F.Supp. 277 (1960). The case was brought here on direct appeal, 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, and we noted probable jurisdiction, 364 U.S. 940......
  • Roberts v. Burson, Civ. A. No. 12588.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • September 15, 1969
    ...plaintiffs have been fully, and I believe correctly, answered by Judge Morgan in his excellent opinion. --------Notes: 1 In Re Kesler, 187 F.Supp. 277 (D.Utah, 1960): "It must be recognized that automobile financial responsibility acts, which by now are common in the majority of states of t......
2 cases
  • Kesler v. Department of Public Safety, Financial Responsibility Division, State of Utah, No. 14
    • United States
    • United States Supreme Court
    • March 26, 1962
    ...U.S.C. § 35, 11 U.S.C.A. § 35. A three-judge District Court, 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, upheld the statute and denied relief, 187 F.Supp. 277 (1960). The case was brought here on direct appeal, 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, and we noted probable jurisdiction, 364 U.S. 940......
  • Roberts v. Burson, Civ. A. No. 12588.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • September 15, 1969
    ...plaintiffs have been fully, and I believe correctly, answered by Judge Morgan in his excellent opinion. --------Notes: 1 In Re Kesler, 187 F.Supp. 277 (D.Utah, 1960): "It must be recognized that automobile financial responsibility acts, which by now are common in the majority of states of t......

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