Kelley v. Lingo, 6 Div. 310
| Decision Date | 06 October 1966 |
| Docket Number | 6 Div. 310 |
| Citation | 280 Ala. 128,190 So.2d 683 |
| Parties | Elton KELLEY v. Albert J. LINGO, Director of Public Safety. |
| Court | Alabama Supreme Court |
Bill Fite, Hamilton, for appellant.
Richmond M. Flowers, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for appellee.
On May 1, 1965, Elton Kelley pleaded guilty in the Recorder's Court of Haleyville, Alabama, to driving while intoxicated and paid a fine of $100.00 and $5.00 cost. On September 2, 1965, pursuant to Title 36, Sec. 68, Code of Alabama, 1958 Recompiled Code, the City Recorder of Haleyville, Alabama, mailed to the Department of Public Safety, Drivers' License Division, at Montgomery, Alabama, a report stating that Elton Kelley was convicted of driving while intoxicated on May 1, 1965. Thereafter, the Director of the Department of Public Safety notified Elton Kelley that his driving privilege, driver's license and registration plates had been withdrawn by the Director, effective September 3, 1965.
On September 7, 1965, Elton Kelley filed the following instrument in the Circuit Court of Winston County, Alabama, Haleyville Division:
'Comes Elton Kelley and shows unto the Court as follows:
'1. That petitioner's driving privilege, driver's license, and registration plates have been withdrawn by Albert J. Lingo, Director, Department of Public Safety for the State of Alabama effective September 3, 1965.
'2. Petitioner resides in Winston County, Alabama--Haleyville Division and desires a hearing on this matter in the Circuit Court of Winston County, Alabama, Haleyville Division, and desires an Order of this Court staying the said Order of the Director of the Department of Public Safety, pending the outcome of the hearing of this cause.
On September 7, 1965, the Circuit Judge of Winston County, Haleyville Division, entered an order staying the order of the Director of the Department of Public Safety for the State of Alabama withdrawing the driving privilege, driver's license, and registration plates of Elton Kelley, and held that Elton Kelley was entitled to a hearing on said petition.
On September 15, 1965, the Attorney General for the State of Alabama, on behalf of the Director of the Department of Public Safety for the State of Alabama, filed a motion to dismiss the proceedings. The motion to dismiss, in substance is to the effect that an appeal will not lie in this proceeding and the court was without jurisdiction to hear it. Sometime later, the date not appearing in the record, the proceedings, together with the motion to dismiss, were heard before the Circuit Judge of Winston County, Alabama, Haleyville Division, sitting without a jury. On the 25th day of October, 1965, the following judgment was entered:
'Upon considering the evidence, it is ordered that petition be and is hereby dismissed.
'Moore, Judge'
This appeal followed.
The proceeding in the Circuit Court of Winston County, Haleyville Division, by whatever name designated, is without authority of law and the trial court correctly dismissed it. Title 36, Sec. 68, Code of 1940, 1958 Recompiled Code, provides, in pertinent part, as follows:
(Emphasis supplied.)
The provisions of the foregoing statute are mandatory where one has been convicted for driving a motor vehicle while intoxicated and said conviction has become final. Ex parte Smith, 30 Ala.App. 24, 200 So. 114; State ex rel. Bates v. Savage, 34 Ala.App. 633, 42 So.2d 695; May v. Lingo,277 Ala. 92, 167 So.2d 267.
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Mechur v. Director, Dept. of Public Safety
...privileges. There is no provision in the statute and such a proceeding is wholly without authority of law." Kelley v. Lingo, 280 Ala. 128, 130, 190 So.2d 683, 685 (1966). Any action for review cannot be by appeal or petition for hearing, but rather can only be by petition for mandamus, Dire......
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Alabama Youth Services Bd. v. Ellis
...necessity for filing the suit in Montgomery County was accepted by this Court against several other objections. But in Kelley v. Lingo, 280 Ala. 128, 190 So.2d 683 (1966), the question was directly in issue. This Court held that a person seeking a remedy from the Director of Public Safety f......
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Alabama Alcoholic Beverage Control Bd. v. Owen
...Md. 245, 103 A.2d 850, 859, 48 A.L.R.2d 415, Annotation, Venue, Action Against Public Official.' In the recent cases of Kelley v. Lingo, 280 Ala. 128, 190 So.2d 683; Ex parte State ex rel. Russell, 280 Ala. 448, 194 So.2d 851; and Dir. of Dept. of Public Safety v. Relford, 51 Ala.App. 456, ......
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Rogers v. Russell
...court on June 28, 1968, and the appeal was dismissed. This appeal was from that order. The appeal was properly dismissed. Kelley v. Lingo, 280 Ala. 128, 190 So.2d 683: Ex parte State ex rel. Russell, 280 Ala. 448, 194 So.2d In May v. Lingo, 277 Ala. 92, 167 So.2d 267, we said: 'When a perso......