Schecter v. Killingsworth

• Decision Date: 27 March 1963
• Docket Number: No. 7533,7533
• Citation: 380 P.2d 136,93 Ariz. 273
• Parties: Lorene SCHECTER and Robert Palmer, Appellants, v. Clyde KILLINGSWORTH, Superintendent, Motor Vehicles Division, and Edwin F. Cates, Director of Financial Responsibility Section, Motor Vehicles Division, Appellees.
• Court: Arizona Supreme Court

Page 136

380 P.2d 136

93 Ariz. 273

Lorene SCHECTER and Robert Palmer, Appellants, v. Clyde KILLINGSWORTH, Superintendent, Motor Vehicles Division, and Edwin F. Cates, Director of Financial Responsibility Section, Motor Vehicles Division, Appellees.

No. 7533.

Supreme Court of Arizona, In Banc.

March 27, 1963.

Cantor & Ely, by Herbert L. Ely, Phoenix, for appellants.

Robert W. Pickrell, Atty. Gen., John T. Amey and Walter O. Holm, and Rad L. Vucichevich, Asst. Attys. Gen., Phoenix, for appellees.

Stockton, Aldrich & Hing, Phoenix, Attorneys for American Mutual Insurance Alliance, as amicus curiae.

Gust, Rosenfeld & Divelbess, Phoenix, for National Association of Independent Insurers, as amicus curiae.

Jennings, Strouss, Salmon & Trask, Phoenix, for Ass'n of Casualty and Surety Companies, as amicus curiae.

Wallace W. Clark, Phoenix, Charles C. Collins, Cornelius R. Gray, Washington, D. C., Joseph H. Braun, Hugh Neill Johnson, Robert G. Corbett, Chicago, Ill., for American Automobile Ass'n, Inc., and Arizona Automobile Ass'n, Inc., as amicus curiae.

MOLLOY, Superior Court Judge.

This is an appeal from a dismissal in the Superior Court of an application for a writ of prohibition, by which appellants sought to prohibit the Superintendent of the Motor Vehicle Division and the Director of the Financial Responsibility section from enforcing the provisions of A.R.S. § 28-1142, insofar as this section requires the Superintendent to suspend the driver's license of the appellant Palmer and the owner's registration certificate of the appellant Schecter.

According to the stipulated facts in the lower court, the appellants Schecter and Palmer were the owner and driver, respectively, of a motor vehicle which was involved in a collision with another automobile in the City of Phoenix, Arizona, on March 18, 1961. The collision resulted in damage to both vehicles. At the time of the accident neither of the appellants was covered by liability insurance. Subsequent to the accident, the Superintendent of the Motor Vehicle Division determined that security in the sum of $425.00 should be posted in order to avoid the suspension provisions of A.R.S. § 28-1142. ¹

The petition for a writ of prohibition alleges that the subject statute is unconstitutional for various reasons. A motion to dismiss the petition was filed by the respondents, alleging as grounds that the lower court was 'without jurisdiction to proceed further * * *' for the reason that A.R.S. § 28-1142 makes suspension of the license and registration mandatory under the circumstances stipulated. The motion to dismiss was granted and judgment was entered denying and dismissing the petition on the merits, and holding that A.R.S. § 28-1142 is constitutional.

In this appeal the appellants contend that the statute is unconstitutional because it violates the due process and equal protection clauses of the State and Federal Constitutions, and because it is an unlawful delegation of legislative and judicial authority.

The statute under attack provides, in substance, that the driver or owner of a vehicle involved in an accident, if not covered by a liability policy in the required amount, must, in order to avoid a suspension of driver's license and owner's registration certificates, cause to be posted with the Superintendent security in such amount as in the judgment of the Superintendent is sufficient to satisfy any judgment for damages which may result from the accident. ²

The appellants contend that the statute makes an arbitrary and unreasonable distinction between uninsured drivers and owners who are involved in an accident and uninsured drivers and owners who are not involved in an accident, thus denying equal protection of the laws to those who happen to be involved in a motor vehicle accident.

The appellants further contend that the statute is in violation of procedural due process because it requires the suspension of the right to operate a motor vehicle on the public highways without a prior hearing, of which proper notice is given. They also argue that the statute violates substantive due process in that there is no legitimate relationship between the statute and the promotion of public health, safety and welfare. Finally, it is contended that there is an unconstitutional delegation of judicial and legislative power in giving to the Superintendent power to determine the amount of security to be posted.

As to two of the above contentions, the appellees interpose the procedural objection that the matter was not raised in the trial court and therefore cannot be raised on appeal. The two contentions sigled out for this rejoinder are the attack made upon the failure of hearing, and notice of hearing, prior to the suspension of driving privileges and the contention that there is an unlawful delegation of power to the Superintendent of Motor Vehicles.

It is, of course, true that ordinarily this Court will not consider matters not raised in the lower court, see City of Yuma v. Evans, 85 Ariz. 229, 336 P.2d 135 (1959).

An examination of the record, however, reveals that in the petition for writ of prohibition, there is expressly urged as a reason why the writ should be granted the decision of People v. Nothaus, 147 Colo. 210, 363 P.2d 180 (1961). In this decision, the Supreme Court of Colorado declared a similar statute unconstitutional for the reasons, among others, that the statute did not provide for a proper hearing, nor notice thereof, and that there was an unconstitutional delegation of authority under the act. Considering the fact that appellants' petition was denied in the lower court for the reason that the statute in question is constitutional, we feel that the contentions of the appellants, on all four grounds, are properly before this Court.

This Court has benefited from an amicus curiae brief filed by the American Automobile Association, Inc., and the Arizona Automobile Association, Inc., which sets forth in some detail the history of Financial Responsibility Acts similar to that now before the Court. Our act is based upon the Financial Responsibility Act of the Uniform Vehicle Code.

In its early form, the uniform act provided for mandatory suspension of driving permits and vehicle registrations of persons found guilty of serious violation of motor vehicle laws and of persons against whom unsatisfied judgments are outstanding. Under this act, before a person whose license is suspended for violation of motor vehicle laws can again obtain a driving permit or registration, he must give proof of financial responsibility in the form of an insurance policy, bond, or deposit of cash or securities. Similarly, before the person whose license is suspended for an unsatisfied judgment can regain a permit to drive or register his car he must make provision for payment of the judgment and file proof of financial responsibility. These provisions, as enacted in this state (now Sections 28-1161 to 28-1178 A.R.S.), were held constitutional in State ex rel. Sullivan v. Price, 49 Ariz. 19, 63 P.2d 653, 108 A.L.R. 1156 (1937).

Experience under this type of statute showed that many of the financially irresponsible drivers against whom its provisions were directed were unaffected by the Act. Claimants were reluctant to undergo the expense required in obtaining the necessary judgment against the financially irresponsible offending motorist. Thus, financial irresponsibility worked to protect a motorist from statutes designed to bar him from the road because of his irresponsibility.

A more recent type of financial responsibility laws, of which A.R.S. §§ 28-1141 to 28-1148 are typical, provides for the suspension of driving permits and vehicle registrations of uninsured motorists involved in accidents with certain exceptions inapplicable here unless security for possible damages is deposited with the Superintendent. This type of statute has been enacted in forty-nine states and the District of Columbia, and has been upheld against constitutional attack in many of these jurisdictions, Franklin v. Scurlock, 224 Ark. 168, 272 S.W.2d 62 (1954); Escobedo v. State Department of Motor Vehicles, 35 Cal.2d 870, 222 P.2d 1 (1950) (driving permit held to be 'right'); Larson v. Warren, 132 So.2d 177 (Fla.1961); Doyle v. Kahl, 242 Iowa 153, 46 N.W.2d 52 (1951) (driving permit held to be 'privilege'); Ballow v. Reeves, 238 S.W.2d 141 (Ky.1951); Sharp v. Department of Public Safety, 114 So.2d 121 (La.App.1959); Larr v. Dignan, 317 Mich. 121, 26 N.W.2d 872 (1947) (driving permit held to be 'privilege'); Hadden v. Aitken, 156 Neb. 215, 55 N.W.2d 620, 35 A.L.R.2d 1003 (1952) (driving permit held to be 'privilege'); Rosenblum v. Griffin, 89 N.H. 314, 197 A. 701, 115 A.L.R. 1367 (1938) (driving permit held to be 'privilege'); Heart v. Fletcher, 184 Misc. 659, 53 N.Y.S.2d 369 (1945) (driving permit held to be 'privilege'); Berberian v. Lussier, 87 R.I. 226, 139 A.2d 869 (1958) (driving permit held to be 'right'); Gillaspie v. Department of Public Safety, 152 Tex. 459, 259 S.W.2d 177 (1953) (driving permit held to be 'privilege'); State v. Stehlek, 262 Wis. 642, 56 N.W.2d 514 (1953) (driving permit held to be 'privilege'). In one state the uniform act has been held unconstitutional, People v. Nothaus, 147 Colo. 210, 363 P.2d 180 (1961).

As indicated, a number of these decisions are based upon the theory that the granting of a driver's license or a certificate of registration permitting a vehicle to use the public highways is the granting of a 'mere privilege'. Under the reasoning adopted by these decisions, inasmuch as the granting of such a 'privilege' was under the condition that the same might be revoked if there was an accident when there was no insurance, and inasmuch as this condition was 'accepted' by applying for a driver's license or registration certificate, there could be no complaint by such persons when such a license or registration was suspended or revoked in...