Morad v. Wyoming Highway Department of Wyoming, 2424

• Citation: 203 P.2d 954,66 Wyo. 12
• Decision Date: 15 March 1949
• Docket Number: 2424
• Parties: R. D. MORAD, Appellant and Petitioner, and Respondent, v. WYOMING HIGHWAY DEPARTMENT OF WYOMING, Wyoming Highway Patrol Driver's License Division, Appellee and Defendant and Appellant
• Court: Wyoming Supreme Court

203 P.2d 954

66 Wyo. 12

R. D. MORAD, Appellant and Petitioner, and Respondent, v. WYOMING HIGHWAY DEPARTMENT OF WYOMING, Wyoming Highway Patrol Driver's License Division, Appellee and Defendant and Appellant

No. 2424

Supreme Court of Wyoming

March 15, 1949

APPEAL from District Court, Natrona County; C. D. MURANE, Judge.

Petition by R. D. Morad against Wyoming Highway Department, Wyoming Highway Patrol Driver's License Division, to review action of Department refusing to issue a driver's license. From adverse judgment, the Department appeals.

Appeal dismissed.

For Appellant, Petitioner and Respondent, the cause was submitted on the brief and oral argument of James A. Greenwood of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR ATTORNEY GENERAL

Any defect in the verification of an oral complaint as made is waived by appellant when he, without objection, gives bond for his appearance in court. City of Wichita v Hibbs, 146 P.2d 397; State v Miller, 124 P. 361 (Kansas 1912).

It is a well established principle of law that municipal courts have no jurisdiction over State laws but instead their jurisdiction is confined to city ordinances.

The general rule is that in the absence of constitutional limitations, a municipality may enact ordinances to regulate activities also regulated by the state provided that the municipality has been given the power by the state to regulate such activities and provided further that such municipal ordinances are not inconsistent with the state law (43 C. J. 214). Mares v. Kool et al., 177 P.2d 532.

The charge of driving a motor vehicle while under the influence of intoxicating liquor is equivalent to charging him with driving such vehicle while intoxicated and there is no substantial difference between the two. Ex Parte Smith Director of Public Safety, 200 S. 114, (Alabama, 1941) Harrell v. City of Norfolk, 21 S.E.2d 733, Va. 1942; State v. Carroll, 37 S.E.2d 688, N. C. 1946.

All that is necessary is--in the case where the Highway Department bases its revocation upon a court conviction or forfeiture of bond--evidence of the conviction or bond forfeiture and not evidence of guilt. Law v Commonwealth, 171 Va. 449, 199 S.E. 516; Kerns' Appeal, 51 D. & C. 136, Pa. 1944; Watson v. Department of Public Safety, 18 S.E. 2d. 789, Ga. 1942; City of Rochester v. Falk, 9 N.Y.S. (2d) 343, N. Y. 1939.

It is clearly seen that in all jurisdictions it is uniformly held that there is no appeal from the act of the Department in revoking a driver's license on the basis of a court conviction or bond forfeiture, with the exception that an appeal might be given for the sole purpose of establishing the identity of the person convicted.

For the Appellee, Defendant and Appellant the cause was submitted on the brief of Norman B. Gray, Attorney General, John S. Miller, Deputy Attorney General, and Marion R. Smyser, Ass't, Attorney General all of Cheyenne, Wyoming and oral argument by Mr. Smyser.

POINTS FOR COUNSEL FOR RESPONDENT

The action of the State Highway Patrol in refusing to issue Petitioner a license was illegal, arbitrary and erroneous. Section 19, Chapter 162, Session Laws of Wyoming, 1947, providing that "the department is hereby authorized and empowered to refuse to issue a license under this Act to any person for any cause satisfactory to said department".

The Statute, Sub-Div. 2, Secs. 15 and 19, Chapter 162, Session Laws 1947 provides that the department shall forthwith revoke the license of any person convicted of any of the crimes therein enumerated under Sub-Division A to F inclusive. Defendant's counsel wholly ignores Sub-Division F, and assumes that petitioner having forfeited bail in Police Court, it is mandatory that defendant refuse to issue petitioner a driver's license, there are two reasons why this assumption is wholly erroneous.

First, the statutes make no reference to a right in the department to refuse to issue a license because of the happening of any of the events enumerated therein; it is limited to the right to revoke an existing license.

Second, the department cannot even revoke a license on the grounds of forfeiture of bail unless it is shown that there have been two forfeitures of bail, upon the charge of reckless driving committed within a period of twelve (12) months, Sub-Division F.

RINER, Chief Justice. KIMBALL, J. and BLUME, J. concur.

OPINION

RINER, Chief Justice.

This proceeding by direct appeal brings a judgment of the District Court of Natrona County here for review. Like Nos. 2417, House vs. Wyoming Highway Department, and 2420, Blackmon vs. Driver's License Division of the Wyoming Highway Department, it also involves the proper construction of certain provisions of Chapter 162, Laws of Wyoming, 1947, commonly known, and, indeed, its citation is directed in its first section to be, as the "Chauffeurs' and Drivers' License Act". R. D. Morad hereinafter usually designated by name being also the petitioner and appellant in the District Court and respondent here, questions the action of the Drivers' License Division of the Wyoming Highway Department subsequently generally mentioned as the "Department" in refusing to issue to him a driver's license under said act. The Department is named in the record as appellee as well as defendant in said District Court but is the appellant here. Several of the questions presented and submitted in the House and Blackmon cases supra are again presented and argued in the instant case though in some respects the facts in all of these cases vary somewhat.

The facts to be considered here are substantially these: About two or three o'clock in the morning February 18, 1948 Morad was observed by two police officers of the City of Cheyenne driving a motor vehicle across the viaduct in the City of Cheyenne at a speed of about sixty-five miles per hour. These officers immediately followed and stopped him some eight blocks on the south side of the viaduct. Thereupon the officers arrested him and took him to the Police Station in said city where he was charged with unlawfully operating a motor vehicle while under the influence of intoxicating liquor, speeding, and resisting arrest. He was confined in jail for several hours, taken to a local hospital and soon thereafter returned to the Police Station. Subsequently he filed a cash bond of $ 100 with the officers for his appearance in the municipal court of said city that afternoon at 4:00 P.M. He was then released from custody. Upon his failure to appear in court at the time fixed this bond was forfeited by the court. No further proceedings were attempted to review the action of the municipal court as described above. Morad at this time and since the first of January, 1948 possessed no license to operate a motor car and until as stated below, had made no application to the Department to obtain one.

February 21, 1948 the Department received the "Abstract of Court Record" from the municipal court of the City of Cheyenne certifying that Morad forfeited bail on February 18, 1948 after being charged with the offense of "operating a motor vehicle upon the public highways while under the influence of intoxicating liquor", the forfeiture being made because of Morad's "non-appearance at date set for trial".

Morad's residence at this time was in Casper, Wyoming. On March 7, 1948 he applied for a Wyoming Drivers' License. He passed the required examination given by a patrolman on behalf of the Department. Shortly thereafter he received a letter from the Department under date of March 10, 1948 wherein, after calling attention to the fact that the Department had an Abstract of Court Record of the purport already stated and that such circumstance authorized the revocation of an existing license in this state, and after stating also that Morad had applied for and passed the examination for "an Operator's License" continued as follows:

"Chapter 162, Session Laws 1947, Section 19; The Department is hereby authorized and empowered to refuse to issue a license under this Act to any person for any cause satisfactory to said Department, * * *

"Therefore, this Department refuses to issue a license for a period of one year from the date of February 18, 1948. If you do not violate the traffic laws of this State you may apply for a license on February 18, 1949."

On March 26, 1948 Morad filed in the District Court of Natrona County an appeal from this action of the Department wherein he claimed that at the time he was arrested as stated above he was not "violating any of the laws of the State of Wyoming or committing any crime or offense". Issues were made up by an answer on behalf of the Department setting forth the circumstances to a large extent as detailed hereinabove and which occurred in the City of Cheyenne on February 18, 1948. There appears to have been no reply filed.

April 22, 1948 the matter of this appeal came on to be heard before the court without a jury. After hearing the evidence which dealt largely with the difficulty in which Morad had become involved in the City of Cheyenne as recited above and whether Morad was "under the influence of intoxicating liquor" or "intoxicated" while he was driving a motor vehicle on the streets in the City of Cheyenne the morning of February 18, 1948, there was presented to the court by Morad's counsel a motion for "an order in favor of petitioner (Morad) and directing the Highway Department to issue a license in conformity with the examination which he took and passed". Counsel in connection with that motion at the time stated to the court:

"This man had been drinking but was not drunk. And in support of that Your Honor, I offer that the Wyoming statutes, the law used to be 'while driving under the influence of intoxicating liquor', and the...