Ledgering v. State, 36799

• Decision Date: 10 October 1963
• Docket Number: No. 36799,36799
• Citation: 63 Wn.2d 94,385 P.2d 522
• Parties: Kenneth M. LEDGERING, Relator, v. The STATE of Washington, Louise S. Taylor, as Director, Department of Licenses, State of Washington, and A. C. Bertocchini, Administrator, Safety Responsibility Section, Defendants, The Superior Court of the State of Washington for Spokane County, the Honorable B. J. McLean, Visiting Judge, Respondent.
• Court: Washington Supreme Court

Page 94

63 Wn.2d 94

385 P.2d 522

Kenneth M. LEDGERING, Relator, v. The STATE of Washington, Louise S. Taylor, as Director Department of Licenses, State of Washington, and A. C. Bertocchini, Administrator, Safety Responsibility Section, Defendants The Superior Court of the State of Washington for Spokane County, the Honorable B. J. McLean, Visiting Judge, Respondent.

No. 36799.

Supreme Court of Washington, En Banc.

Oct. 10, 1963.

Rehearing Denied Dec. 10, 1963.

Dressel & Lehan, Spokane, for appellant.

John J. O'Connell, Atty. Gen., Earl E. Yates, Dean A. Floyd, Asst. Attys. Gen., Olympia, for respondent.

HAMILTON, Judge.

On May 14, 1962, relator was convicted in municipal court of the offense of aiding and abetting failure to leave information at the scene of an accident in violation of Ordinance No. C12833, § 46.52.020, ¹ of the City of Spokane. Relator was fined $100. He did not appeal his conviction.

On June 29, 1962, the Department of Licenses, having received a record of such conviction from the municipal court, pursuant to RCW 46.20.280, without hearing administratively suspended relator's motor vehicle operator's license for a period of six months and until relator furnished proof of financial responsibility in accordance with the requirements of RCW 46.24.040. Notice of such suspension was mailed on July 2, 1962, and received by relator on July 17, 1962.

Pursuant to RCW 46.20.340 relator timely appealed to the Superior Court of Spokane County. An appropriate order was issued, ordering the Director of the Department of Licenses and the Administrator of the Operators' Licenses and Financial Responsibility Division to show cause why relator's license should not be reinstated, and staying, pending hearing, surrender of relator's license.

In an affidavit filed in support of his motion for the order to show cause, relator alleged, in substance, that, at the time of the accident giving rise to the offense of which he was convicted, he was riding as a passenger in his own vehicle; the driver, following the accident, checked with the occupants of the other vehicle involved and, upon being advised that there were no injuries, requested relator to stay at the scene while she went on to work; relator remained upon the scene, discussed the details of the accident with the investigating officers and accompanied them to the driver's place of employment where the driver was interviewed; upon conviction of the offense with which he was charged relator was not advised of any prospective suspension of his license; relator had no previous moving motor vehicle violations or convictions; his driving license is essential to his employmnet; suspension will result in increased insurance premiums; and the action of the Department of Licenses was without investigation, without the exercise of discretion, and beyond the scope of the department's authority.

In response to the order to show cause, the Director of the Department of Licenses appeared through counsel, and the Administrator of the Operators' Licenses and Financial Responsibility Division appeared personally and through counsel.

The trial court restricted the hearing to a determination of whether the offense involved was such as authorized administrative action within the provisions of RCW 46.20.290. Relator was precluded from offering any evidence going to the merits of the suspension. Upon the issues so framed, the trial court determined the suspension to be valid and dismissed relator's appeal.

Relator, by way of certiorari, seeks review of the trial court's action, asserting four claims of error: (1) The Director of the Department of Licenses failed to personally appear at the hearing and thereby defaulted; (2) the Director of the Department of Licenses unlawfully delegated the power to suspend an operator's license to a subordinate; (3) the trial court improperly limited the scope of its review; and (4) the trial court erred in not declaring RCW 46.20.340 unconstitutional, insofar as such statute prohibits a stay of license suspension pending appeal.

We do not reach relator's first and fourth assignments of error. Relator did not, in the superior court, question the failure of the Director of the Department of Licenses to personally appear or affirmatively assert the unconstitutionality of any portion of RCW 46.20.340.

We will not review questions raised for the first time on appeal. Rutter v. Rutter, 59 Wash.2d 781, 370 P.2d 862; In re Henderson v. McCullough, 161 Wash.Dec. 89, 377 P.2d 244; State ex rel. Cosmopolis Consol. School District No. 99 v. Bruno, 161 Wash.Dec. 459, 378 P.2d 691.

The principal statutes involved in this review are RCW 46.20.290 and RCW 46.20.340. They provide as follows:

'The director may in his sound discretion immediately suspend the vehicle operator's license of any person whenever he has reason to believe:

'(1) That such person has committed an offense for which mandatory suspension or revocation of licenses is provided by law;

'(2) That such person has, by reckless or unlawful operation of a motor vehicle, caused or contributed to an accident resulting in death or injury to any other person or serious property damage;

'(3) That such person is incompetent to drive a motor vehicle or is afflicted with mental or physical infirmities or disabilities rendering it unsafe for such person to operate a motor vehicle upon the public highways; or '(4) That such person is a habitually reckless or negligent operator of a motor vehicle or has committed a serious violation of the motor vehicle laws of this state.

'Whenever the director suspends the vehicle operator's license of a person for any reason, he shall immediately notify the licensee in person or by registered or certified mail, and may thereafter upon further information either rescind his temporary order of suspension, or, good cause appearing therefor, may continue in force such suspension for the full period thereof.' RCW 46.20.290.

'The suspension, revocation, cancellation, or refusal by the director of any license or certificate provided for in this and chapters 46.12, 46.16 and 46.20, shall be conclusive unless the person whose license or certificate is suspended, revoked, canceled, or refused appeals to the superior court of Thurston county, or at his option to the superior court of the county of his residence, for the purpose of having the suspension, revocation, cancellation, or refusal of such license or certificate set aside. Notice of appeal must be filed within ten days after receipt of the notice of suspension, revocation, cancellation, or refusal. The appeal shall not supersede the suspension, revocation, cancellation or refusal of the license or certificate by the director. Upon the filing of the notice of appeal the court shall issue an order to the director to show cause why the license should not be granted or reinstated, which order shall be returnable not less than ten days after the date of service thereof upon the director. Service shall be in the manner prescribed for service of summons and complaint in other civil actions. Upon the hearing on the order to show cause, the court shall hear evidence concerning matters with reference to the suspension, revocation, cancellation, or refusal of the license or certificate and shall enter judgment either affirming or setting aside such suspension, revocation, cancellation, or refusal.' RCW 46.20.340.

By his second assignment of error, relator challenges the authority of the director to delegate to the administrator the discretionary power to suspend operators' licenses. In short, relator invokes the general principle of law, expressed in the maxim delegatus non potest delegare, that, absent consent of the principal, a delegated power may not be further delegated, especially when te power involved is one calling for the exercise of discretion. Black's Law Dictionary (4th ed.).

In support of his contention, relator points to the following testimony elicited from the administrator:

'MR. LEHAN: Mr. Bertocchini, your action, if I understand your affidavit, in endeavoring to suspend this driver's license administratively, was based solely upon a certification of a record of conviction by Judge Lower of the municipal court of Spokane? A. This is correct. Q. There was no independent investigation of any nature carried on? A. It wasn't necessary. Q. Well, whether it was or not, there was none? A. Well, I must reiterate to the same answer, counsel. Q. And who brings a matter of this kind to your attention? A. Who brings what matter to my attention? Q. This exhibit No. 1, this notice of suspension of operator's license. A. My clerks. Q. A reviewer No. C? A. Right. Q. And who is he or she? A. He or she is one of the four persons that part of their job is to effect these suspensions and notify the licensees. Q. They do it? A. Right. Q. You don't? A. They put it in the mail. You understand there is certain physical work involved in suspending a license.'

Counsel for the director, in response, relies upon the affidavit of the administrator to the effect that he has been deputized to sign and issue notices of suspension on behalf of the director, and also upon RCW 43.24.010 and 46.20.010, providing as follows:

'The director of licenses shall have charge and general supervision of the department of licenses.

'He may appoint such clerical and other assistants as may be necessary to carry on the work of the department, deputize one or more of such assistants to perform duties in the name of the director, and designate one assistant as chief clerk and secretary of the department.' RCW 43.24.010.

'The director of licenses shall have the general supervision and control of the issuing of vehicle operators' licenses and shall have the full power to do all things necessary and proper to carry out the provisions of this chapter relating to the licensing of vehicle operators; he shall have the power to...