MacKinnon v. Ferber

• Decision Date: 15 November 1951
• Docket Number: No. A--515,A--515
• Parties: MacKINNON v. FERBER, Director, Division of Motor Vehicles, Department of Law and Public Safety.
• Court: New Jersey Superior Court — Appellate Division

Page 390

16 N.J.Super. 390

84 A.2d 647

MacKINNON v. FERBER, Director, Division of Motor Vehicles, Department of

Law and Public Safety.

No. A--515.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 5, 1951.

Decided Nov. 15, 1951.

Jacob R. Mantel, Summit, argued the cause for the appellant.

John J. Kitchen, Deputy Atty. Gen., argued the cause for the respondent (Theodore D. Parsons, Atty. Gen., attorney).

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

BIGELOW, J.A.D.

The appellant was convicted, first in July 1931 and again in June 1942, of driving a motor vehicle while under the influence of intoxicating liquor, contrary to R.S. 39:4--50, N.J.S.A. Since the statute provides that for a second violation of this section of the statute the culprit shall 'forfeit his right to thereafter operate a motor vehicle over the highways of this state,' the Commissioner of Motor Vehicles put appellant's name on the list of those to whom no driver's license shall be issued. In April 1951, appellant demanded that the Commissioner remove his name from the prohibitory list and relicense him to drive, or at least accord him a hearing at which the Commissioner determine whether or not appellant may safely be licensed to drive a car. The Commissioner refused on the ground that the statute does not authorize him to relicense one whose right to drive has been forfeited because of a second violation of section 39: 4--50. This suit--in the form of an appeal under Rule 3:81--8--is brought to compel the Commissioner to accede to the appellant's demand.

Upon finding appellant guilty upon the second occasion, that is, in 1941, the magistrate fined him $200 and adjudged that his license be revoked for two years. This was a proper penalty for a first offense but not for a second, since imprisonment for three months is mandatory upon the second conviction. Hence, argues appellant, the State is estopped from alleging that the violation in 1941 was a second violation. The point is not well taken, for the issue whether the violation was a first or subsequent violation was not raised, litigated or decided in the magistrate's court. Chirelstein v. Chirelstein, 12 N.J.Super. 468, 481, 79 A.2d 884 (App.Div.1951).

Appellant next contends, in effect, that a forfeiture of his right to operate a motor vehicle can be adjudged only by the magistrate, and as a part of the sentence imposed upon the second conviction for driving while intoxicated; and that the Commissioner, acting as an administrative officer, cannot make the determination of the forfeiture.

Upon appellant's second conviction, the magistrate, unaware of the earlier conviction, adjudged that his license be revoked for two years. The Commissioner, upon receiving a report of the conviction and finding a record of the earlier conviction in his files, notified, appellant, 'Your driving privilege is revoked permanently,' and 'This Department has placed your name upon the prohibitory list to be denied a driver's license permanently.' Appellant's license, which he held at the time of his conviction, like all driver's licenses, ran for one year only. R.S. 39:3--10, N.J.S.A. It was the magistrate and not the Commissioner who revoked that license. All the Commissioner did was to take effective measures that no new license would be issued to appellant.

The term forfeit is used in the statute in its proper sense--to incur the loss of something as a penalty for doing or omitting to do some certain act. In re N.J. Court of Pardons, 97 N.J.Eq. 555, 568, 129 A. 624 (ch.1925). A typical forfeiture at common law was that which took place upon conviction for treason or a felony. The forfeiture did not occur upon mere commission of the offense but only upon the conviction. The Palmyra, 12 Wheat. 1, 6 L.Ed. 531 (1827). From the precedents collected in 4 Chitty Cr.L. 365, et seq., it appears that the forfeiture was not mentioned in or adjudged as part of the sentence in such cases. Attainder and forfeiture followed by operation of law. We note, however, in the case of less serious crimes, the where a forfeiture took place it was expressed in the sentence. The most common forfeiture at the present time is not the confiscation of lands or goods, but the loss of some right, such as the right to vote. Undoubtedly the Legislature can so phrase the...