Law v. Commonwealth

• Decision Date: 21 November 1938
• Citation: 199 S.E. 516
• Parties: LAW. v. COMMONWEALTH.
• Court: Virginia Supreme Court

199 S.E. 516

LAW.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 21, 1938.

Appeal from Corporation Court of City of Norfolk; Richard B. Spindle, Judge.

Action by J. C. Law against the Commonwealth of Virginia, etc, to set aside an order of the Director of the Division of Motor Vehicles revoking the plaintiffs license to drive an automobile. From an adverse judgment, the plaintiff appeals.

Affirmed.

Argued before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

L. S. Parsons, of Norfolk, for plaintiff in error.

Abram P. Staples, Atty. Gen, and S. W. Shelton, Asst. Atty. Gen, for the Commonwealth.

HOLT, Justice.

On June 22, 1937, J. C. Law was convicted of reckless driving by the trial justice of Norfolk county. On December 20, 1937, all within a year, he was convicted of a like offense by the trial justice of Nansemond county. The record of these convictions was forwarded to the Division of Motor Vehicles at Richmond. That of the last was received on January 4, 1938, and on January 7, 1938, the Director of the Division of Motor Vehicles ordered that Law's license be revoked for a period of one year. A copy of this order was sent to him. This was in exact accordance with section 2154, subsection 186, of the Code of Virginia. Thereafter he applied to the Director of the Division of Motor Vehicles to have the order of revocation set aside. This the Director refused to do, being of opinion that the statute was mandatory and that he had no discretion in the premises. Thereupon Law, seeking the same relief, filed his petition in the Corporation Court of the city of Norfolk. That court also refused to go into the merits of his convictions, being of opinion that the statute was mandatory.

Petitioner's first assignment of error reads:

"First: The Director of Motor Vehicles not only acted arbitrarily and revoked petitioner's license to operate a motor vehicle without a hearing, but after due application for a hearing on the part of your petitioner, refused to grant him a hearing, in contravention of the provision of section 2154 (187), which provides as follows:

" 'The division may after due hearing, upon not less than five days' notice inwriting * * * suspend or revoke the operator's * * * license * * * whenever it is satisfactorily proved to the division:

" 'First. That such person has committed any offenses for the conviction of which mandatory revocation of license is provided in section 2154 (186)."'

This statute first appears in Acts of Assembly, 1932, c. 385, pp. 775-781. It reappears in the Acts of 1934, c. 389, pp. 820-822, and was further amended; see Acts, 1936, c. 22, p. 36, and it is in this form that it now appears in our Code. Until 1936, three convictions were necessary before revocation became mandatory. Since 1936, two only are needed.

The statute relied upon by the petitioner and which gives him the right to be heard in certain circumstances contains these provisions:

"Division may suspend or revoke licenses.--(a) The division may after due hearing, upon not less than five days' notice in writing, said notice to be sent by registered letter to the address given by the operator or chauffeur when applying for his license, which shall constitute sufficient form of notice, suspend or revoke the operator's or chauffeur's license issued to any person under the provisions of this act whenever it is satisfactorily proved to the division:

"First. That such person has committed any offenses for the conviction of which mandatory revocation of license is provided in section 2154(186)."

There is no conflict between these statutes. In the first, convictions are necessary before the mandatory directions to the Director of the Division of Motor Vehicles comes into effect; in the second, although there has been no conviction, this Director is given power to revoke a license when he is satisfied by proper evidence that the licensee had been guilty of those offenses specified in subsection 186. It is only in such a case that he must hear evidence. He is given no power to disregard judgments of courts of competent jurisdiction.

And as a corollary to the claims already made, we are told that the Director of the Division of Motor Vehicles has arbitrarily denied to the petitioner that hearing to which he was entitled. In support of this contention Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129, U S. Supreme Court, of date April 25, 1938, is cited and strongly relied upon. There the Secretary of Agriculture was given power to fix maximum rates to be charged by stockyards. The court said [page 775]: "And in equipping the Secretary of Agriculture with extraordinary powers under the Packers and Stockyards Act, the Congress explicitly recognized and emphasized this requirement by making his action depend upon a 'full hearing.' "

The duties imposed upon the Secretary of Agriculture were quasi judicial and to be exercised only after a "full hearing." Here no provision has been made for a hearing at all after there have been two convictions.

The Director could not be expected to hear evidence when there was nothing for him to decide.

It is equally manifest that the Corporation Court of the city of Norfolk could not in this proceeding pass upon the judgments of the trial justices. From those judgments, Law had the right of appeal. This right he did not see fit to exercise, and so they have become final. Upon the merits of his case a defendant is entitled to one fair trial and to no more. Vaughan v. Mayo Milling Co, 127 Va. 148, 102 S.E. 597.

The second assignment of error reads:

"Second: The license issued by the State and delivered to your petitioner carried a provision thereupon that the petitioner's license would not be revoked until at least three convictions for reckless...