Lira v. Billings
| Citation | 414 P.2d 13,196 Kan. 726 |
| Decision Date | 07 May 1966 |
| Docket Number | No. 44458,44458 |
| Parties | Florencio LIRA, Appellant, v. L. A. BILLINGS, Superintendent, Motor Vehicle Department, Kansas State Highway Commission, Appellee. |
| Court | United States State Supreme Court of Kansas |
1. One of the first and continuing duties of a court is to determine whether the court has jurisdiction of the subject matter of the action.
2. A legislative enactment which purports to prescribe the duties of a court to the extent of affecting the subject matter of the action in a particular case becomes a proper subject of inquiry by the court as to infirmity in such legislation, including constitutionality.
3. The only issue before a district court on a hearing on appeal pursuant to K.S.A. 8-259(a) by a petitioner whose driver's license has been suspended or revoked because of his refusal to submit to a chemical test to determine the alcoholic content of his blood, pursuant to K.S.A. 8-1001, is the reasonableness of petitioner's failure to submit to such test.
4. K.S.A. 8-259(a), when invoked as set forth in the preceding paragraph, is not in violation of the separation of powers' doctrine inherent in the Kansas constitution.
5. Such a proceeding as set forth in the preceding paragraphs requires a trial de novo of the question at issue, the burden of proof resting on the petitioner, with right of trial by jury if demanded by petitioner.
William R. Stewart, Topeka, argued the cause, and John C. Humpage, Topeka, was with him on the brief for appellant.
William L. Stevenson, Chief Counsel for motor vehicle department, argued the cause, and Robert C. Londerholm, Atty. Gen., and Ralph G. Ball, Topeka, were with him on the brief for appellee.
HARMAN, Commissioner.
This appeal concerns constitutionality of K.S.A. 8-259(a) as it pertains to a hearing in district court based on an appeal from an order by the vehicle department of the state highway commission revoking a driver's license for refusal to submit to a chemical test to determine blood alcohol content pursuant to K.S.A. 8-1001.
The facts are not in dispute. Plaintiff, referred to hereinafter as the appellant, was arrested in Shawnee county, Kansas, upon a charge of driving a motor vehicle while under the influence of intoxicating liquor and was requested by the arresting officer to submit to a chemical test to determine the alcoholic content of his blood. He refused the test. The arresting officer made a sworn report of the refusal to the motor vehicle department which first suspended and later, after a hearing, revoked appellant's driver's license. Appellant then filed his petition in the district court of Shawnee county, Kansas, against the appellee as the superintendent of the motor vehicle department of the state highway commission seeking a de novo jury trial of the matter of the revocation pursuant to the terms of K.S.A. 8-259(a). Appellee first filed an answer to this petition, denying certain allegations thereof, and he later filed a motion to dismiss the action upon the ground that K.S.A. 8-259(a) purports to impose nonjudicial functions upon a court and is thereby violative of the separation of powers' doctrine of the Kansas constitution.
In a pretrial order the trial court upheld this contention as to unconstitutionality but ruled that it would entertain the proceeding under the provisions of the general appeal statute, K.S.A. 60-2101, and determine as a question of law, without a jury, whether the action of the vehicle department in suspending and revoking appellant's license was arbitrary, capricious, unreasonable or otherwise unlawful. Appellant brings the constitutional question here for review.
K.S.A. 8-259(a), with which we are primarily concerned, was enacted in 1937 and provides:
'Any person denied a license or whose license has been canceled, suspended, or revoked by the department except where such revocation is mandatory under the provision of section 8-254 of the General Statutes Supplement of 1961 or any amendments thereto shall have the right to file a petition within sixty (60) days thereafter for a hearing in the matter in the district court in the county wherein such person shall reside, and such court is hereby vested with jurisdiction, and it shall be its duty to set the matter for hearing upon ten (10) days' written notice to the department, and thereupon to take testimony and examine into the facts of the case, and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation, or revocation of license under the provisions of this act; Provided, such petitioner shall file in such court a bond in the amount of one hundred dollars ($100) conditioned that he will without unnecessary delay appear in such court at the time set by the court for hearing said matter and pay all costs in the event the court determines that said petitioner's license is subject to suspension, cancellation or revocation: Provided further, The trial on appeal as herein provided for shall be a trial de novo and the licensee shall have the right of trial by jury upon demand therefor: Provided further, The court having jurisdiction of said appeal, on proper application being made, may order a stay of any suspension or revocation pending final judgment, and if the license has been surrendered by the licensee said order shall direct the department to return such license to the licensee, and until such license is so returned such stay order shall be deemed equivalent to the operator's or chauffeur's license so surrendered.'
A second statute we should notice is K.S.A. 8-1001, which, together with others implementing it, was enacted in 1955, and provides as follows:
The validity of this statute was upheld in Lee v. State, 187 Kan. 566, 358 P.2d 765. Appellant first asserts that the vehicle department, being an agency of the state, had no standing to challenge constitutionality of legislative enactments, and he cites authority in support of that general proposition. We need not go into the matter because, irrespective of this, we think the constitutional...
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