Johnson v. Sanchez
| Decision Date | 15 March 1960 |
| Docket Number | No. 6517,6517 |
| Citation | 351 P.2d 449,1960 NMSC 29,67 N.M. 41 |
| Parties | Lillard H. JOHNSON, Plaintiff-Appellant, v. Benny SANCHEZ, Commissioner of Motor Vehicles of the State of New Mexico, Defendant-Appellee. |
| Court | New Mexico Supreme Court |
Reese, McCormick, Lusk & Paine, Carlsbad, for appellant.
Richard H. Robinson, Chief Counsel, Bureau of Revenue, Santa Fe, N. Mex., Frank Mims, Albuquerque, N. Mex., for appellee.
This appeal results from plaintiff's unsuccessful attempt to have the district court set aside the suspension of his driver's license by the defendant, commissioner of motor vehicles.
The basic questions are: (1) What is the type of a hearing to which the suspended licensee is entitled in the district court; and (2) is the New Mexico statute authorizing suspension of an automobile operator's license constitutional?
Plaintiff Johnson had an automobile operator's license which by its terms expired May 31, 1959. On March 12, 1958, he was interviewed by a driver improvement officer, and as a result of the officer's recommendation, the division of motor vehicles suspended Johnson's driving privileges and all licenses for a period of six months from March 19, 1958. Johnson then requested a hearing before the commissioner, which was granted on April 10, 1958. The hearing resulted in the suspension being sustained, and the plaintiff then filed this action under the above statute. The trial court, after a hearing, ordered that 'Plaintiff * * * be, and is hereby, suspended from the privilege of operating a motor vehicle in the State of New Mexico for a period of one year commencing September 12, 1958 and ending September 11, 1959.'
Johnson thereafter appealed, and the judgment was superseded upon his furnishing a bond.
While the case was pending in this court and before the reply brief was filed, plaintiff moved to dismiss the appeal on the ground that it was moot because the license of the plaintiff had expired by its own terms. However, the motion, in effect, seeks to have this court not merely dismiss the appeal but also seeks the affirmative relief that the judgment below be declared to be inadmissible in any proceeding relating to the plaintiff's license.
Thus, it would appear that the plaintiff, by superseding the judgment until his license expired, would, in effect, seek to entirely void the judgment and avoid its consequence.
Aside from the question of whether plaintiff's license was revoked or whether his driving privileges were merely suspended (regardless of license), the case is not moot because the judgment could conceivably affect plaintiff's qualifications for an operator's license in the future. Strasser v. MacDuff, 1953, 282 App.Div. 1106, 126 N.Y.S.2d 357. Compare Freeman v. Medler, 1942, 46 N.M. 383, 129 P.2d 342.
Therefore, we find the motion to dismiss without merit.
Plaintiff's appeal is based upon several claimed errors on the part of the trial court, principally concerned with the type of hearing allowed, the admission of some and refusal to admit other evidence, and the court's findings with regard to whether plaintiff's prior convictions of traffic offenses indicated a disrespect for traffic laws or disregard for the safety of others, and whether there was evidence that the plaintiff was habitually reckless or negligent so as to warrant a suspension of his license. The plaintiff also, by his reply brief, strenuously argues that the statute with respect to operators' licenses is unconstitutional because of its failure to provide specific standards warranting the suspension of licenses by the commissioner.
We will first dispose of the contention by the plaintiff that the statute is unconstitutional. This is a matter which was neither raised in the trial court nor in the brief in chief, and we have consistently held that we will not consider such matters unless they have been passed upon by the trial court. This is in compliance with our rule 20 (Sec. 21-2-1(20), subd. 1, N.W.S.A., 1953 Comp.). See National Mut. Savings & Loan Ass'n v. Hanover Fire Ins. Co., 1936, 40 N.M. 44, 53 P.2d 641; Miera v. State, 1942, 46 N.M. 369, 129 P.2d 334; Taylor v. Shaw, 1944, 48 N.M. 395, 151 P.2d 743; and State Highway Comm. v. Southern Union Gas Co., 1959, 65 N.M. 217, 334 P.2d 1118. We see no reason why the rule should not apply to plaintiff's assertion here. Therefore, it will be disregarded, except insofar as it may relate to the determination of the basic issue.
Chapter 179 of the Session Laws of 1955, being Secs. 64-13-31 to 64-13-78, N.M.S.A., 1953 Comp. (Pocket Supp.), is an adaptation of the so-called Uniform Motor Vehicle Operator's and Chauffeur's License Act, which we understand has been enacted into law, in whole or in part, in at least nineteen other states. Practically all the states have a provision empowering some administrative agency to suspend or revoke licenses. However, unfortunately, those states which have passed upon this particular section of the statute have not adopted the uniform law in the exact recommended form, and therefore their decisions on this subject are not precisely in point. Our statute, insofar as it is peritinent, is as follows:
Sec. 64-13-60, N.M.S.A., 1953 Comp. (Pocket Supp.):
'(a) The division is hereby authorized to suspend the license of an operator or chauffeur without preliminary hearing upon a showing by its records or other sufficient evidence that the licensee:
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'4. Is an habitually reckless or negligent driver of a motor vehicle;
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'(b) Upon suspending the license of any person as hereinbefore in this section authorized, the division shall immediately notify the licensee in writing and upon his request shall afford him an opportunity for a hearing as early as practical within not to exceed twenty (20) days after receipt of such request in the county wherein the licensee resides unless the division and the licensee agree that such hearing may be held in some other county.
Upon such hearing the commissioner or his duly authorized agent may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may require a reexamination of the licensee. Upon such hearing the division shall either rescind its order of suspension or, good cause appearing therefor, may continue, modify or extend the suspension of such license or revoke such license.'
The actual order of suspension by the department was as follows:
'The records of this department show sufficient evidence that the privilege to operate a motor vehicle of the hereinabove named person should be suspended for the following reason: Is an habitual reckless or negligent driver of a motion vehicle.'
Johnson contends that the statute above quoted is invalid because it fails to contain any fixed standard or guide to which the motor vehicle commissioner must conform to determine whether or not a driver is an habitual reckless or negligent driver of a motor vehicle.
As hereinabove stated, the statutes of other jurisdictions vary in one or more ways from that which our legislature enacted, and, therefore, the cases cited by the plaintiff are not in point and not particularly helpful. This is true for the added reason that in each jurisdiction which has passed upon the question involved, the courts thereof have been guided, to a large extent, by prior pronouncements of that same court. In a like manner, so must we be guided.
The majority of jurisdictions throughout the country hold that a license to operate a motor vehicle is a mere privilege, and not a property right; and is subject to reasonable regulation under the police power in the interest of public safety and welfare. Commonwealth v. Funk, 1936, 323 Pa. 390, 395, 186 A. 65, 67; Rosenblum v. Griffin, 1938, 89 N.H. 314, 197 A. 701, 704, 115 A.L.R. 1367, 1372; Sullins v. Butler, 1940, 175 Tenn. 468, 135 S.W.2d 930, 932, citing 5 Am.Jur. 593, 42 C.J. 740, 746; Larr v. Dignan, 1947, 317 Mich. 121, 26 N.W.2d 872, 874; Ballow v. Reeves, Ky.1951, 238 S.W.2d 141, 142; Hadden v. Aitken, 1952, 156 Neb. 215, 222, 55 N.W.2d 620, 623, 35 A.L.R.2d 1003; Gillaspie v. Department of Public Safety, 1953, 152 Tex. 459, 466, 259 S.W.2d 177, 182, certiorari denied 1954, 347 U.S. 933, 74 S.Ct. 625, 98 L.Ed. 1084; and State v. Stehlek, 1953, 262 Wis. 642, 56 N.W.2d 514. We are in accord with these holdings. Therefore, a driver's license being a privilege, there is no denial of due process of law resulting from placing the power to revoke or suspend the same in an administrative officer. The automobile is a dangerous instrumentality and the improper use thereof creates a likelihood of serious menace to public safety and authorizes the most stringent use of the government's police power. The licensee's right of review, as provided by law, is his sufficient protection that powers will be reasonably and fairly administered. La Forest v. Board of Commissioners, 1937, 67 App.D.C. 396, 92 F.2d 547.
With respect to the contention as to unlawful delegation of powers or the claimed lack of a fixed standard, we have only to point to our own statutes and court decisions in order to resolve plaintiff's contention. 'Habitual' is a term, the definition of which is known to all. However, should there be any question with respect thereto, it is defined by Webster's New International Dictionary, Second Edition, Unabridged, as follows:
* * *' 'Reckless driving' is defined by statute, being Sec. 64-22-3, N.M.S.A., 1953 Comp., as follows:
'(a) Any person who drives any vehicle carelessly and heedlessly in wilful or...
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