Schwaller v. May

• Decision Date: 05 April 1938
• Citation: 115 S.W.2d 207,234 Mo.App. 185
• Parties: EX PARTE FRED SCHWALLER, PETITIONER, v. L. MAY, MARSHAL OF THE CITY OF ST. LOUIS, MISSOURI, RESPONDENT
• Court: Missouri Court of Appeals

115 S.W.2d 207

234 Mo.App. 185

EX PARTE FRED SCHWALLER, PETITIONER, v. L. MAY, MARSHAL OF THE CITY OF ST. LOUIS, MISSOURI, RESPONDENT

Court of Appeals of Missouri, St. Louis

April 5, 1938

PETITIONER DISCHARGED UNDER THE WRIT.

Petitioner discharged.

Philip A. Foley counsel for petitioner.

(1) Ex parte Lerner, 218 S.W. 331, l. c. 333. A prosecution for violation of an ordinance prohibiting certain acts and prescribing the penalty for violation thereof, while technically a civil proceeding, will upon conviction authorize the imposition of a penalty, and in thus far it partakes of the nature of a criminal action, and the ordinance on which it is based is subject to the same rules of construction as a criminal statute. (2) Appeals from police court shall be the same as appeals taken from justices of the peace in misdemeanors. Secs. 3448, 7212, R. S. Mo 1929. (3) Appeals from police courts in the city of St. Louis shall go to the court of criminal correction. Sec. 14670, R S. Mo. 1929. (4) Appeals from the court of criminal correction shall be allowed and the manner of taking such appeal shall be the same, as near as may be, as is prescribed by law for taking an appeal from the circuit court in criminal cases. Sec. 14660, R. S. 1929. (5) The granting of an appeal and the posting of an appeal bond, approved by the court granting the appeal, act as a stay of execution. Sec. 3746, R. S. 1929; Ex parte Carey, 267 S.W. 806; State ex rel. Hulon, Pros.-Atty., v. Trimble et al., Judges, 275 S.W. 537.

Edgar H. Wayman, City Counselor, and Martin Barrow, Assistant City Counselor, for respondent.

(1) License is a privilege, not a right, and may be revoked by the authority granting it. (a) Ex parte Kneedler, 243 Mo. 632, 147 S.W. 983: "Every person who operates or uses a motor vehicle must be regarded as exercising a privilege and not an unrestricted right. It being a privilege granted by the Legislature, a person enjoying such privilege must take subject to all proper restrictions." (Italics ours.) (b) St. Charles v. Hackman, 133 Mo. 634: "A license has none of the elements of a contract and does not confer an absolute right, but only a personal privilege to be exercised under the restrictions imposed by the law. Such license may be revoked for cause at any time by the authority which granted it." (Italics ours.) (c) State ex rel. v. Wurdeman, 254 Mo. 561: "The right of revocation, therefore, is as much a part of the license as though it had been written into it, and the licensee must be held to have accepted it upon these terms and conditions. The license not being property, but a mere privilege, it was subject to revocation on such conditions as the State, through its law-making power, saw fit to impose, . . . such revocation is not a punishment." (d) Smith v. State, 247 N.W. 421, 124 Neb. 587; "The license to operate a motor vehicle was issued to the defendant not as a contract, but as a mere privilege, and with the understanding that such license may be revoked for due cause by the proper authorities." (Italics ours.) (e) People v. Cohn, 217 N.Y.S. 726, 128 Misc. 29. (f) La Plante v. State Board of Public Roads, 47 R. I. 258, 131 A. 641. (2) Power to revoke license may be delegated and the act of revocation is administrative, not judicial. (a) Higgins v. Talty, 157 Mo. 280. (b) Tryon v. Willband, 255 N.Y.S. 27, 234 A.D. 335: "Section 71 of the Vehicle Traffic Law gives the Commissioner of Motor Vehicles or any person deputized by him the right in his discretion to suspend or revoke one's license to drive a motor vehicle. "While the hearing in such a proceeding may be said to be quasi-judicial the act of the Commissioner is an administrative and not a judicial one." Citing People ex rel. v. Hurnett, 221 A.D. 487, 224 N.Y.S. 97. (c) Huston v. Des Moines, 176 Iowa 455, 156 N.W. 883. (d) State ex rel. v. Dykeman, 134 S.W. 120, 153 Mo.App. 416. (e) Barnett v. Pemiscot County Court, 111 Mo.App. 693, 86 S.W. 575. (3) Appeal does not act as supersedeas of suspicion of the license. (a) 42 C. J. 747 (par. 232). (b) Kinder v. Daniels, 22 Cox C. C. 276: Court held suspension of a license to operate an automobile took effect on date of the original order and appeal did not act to supersede the order suspending the license. (c) Emmerson v. State Tax Commission (Utah), 72 P.2d 467. (d) State ex rel. v. Denton, 128 Mo.App. 304. Relator was granted a license to operate a dramshop for six months by county court and operated a saloon under the license. Resident of the city presented petition for writ of certiorari to review the record of county court granting the license. (e) State of Missouri v. Kirk, 112 Mo.App. 447, 86 S.W. 1009. (f) State v. State Road Commission, 100 W.Va. 531, 131 S.E. 7: The court held where statute punishing an act as a misdemeanor and in addition thereto providing a revocation of license or permit, conviction of violating statute was not necessary before revocation.

BENNICK, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

BENNICK, C.

Original proceeding in Habeas Corpus.

This is an original proceeding in habeas corpus wherein the petitioner, Fred Schwaller, alleges that he is being illegally deprived of his liberty by L. May, the Marshal of the City of St. Louis, by whom petitioner is being held in default of bond to answer in City Court No. 1 of the City of St. Louis to a charge of violation of an ordinance of said city [Ordinance No. 40660, section 19(2)], which makes it unlawful for a person to drive a motor vehicle upon the streets of the city during the period for which his driver's license is in a status of suspension or revocation.

The ordinance in question is one providing generally for the issuance of licenses to operators of motor vehicles and for the suspension and revocation of licenses upon conviction of certain specified offenses. It creates a Motor Vehicle Commission for the administration of the ordinance, and provides that the commission "shall have full power to suspend or revoke any driver's license . . . as ordered by a court of competent jurisdiction."

Section 15 of the ordinance provides that upon the conviction of any person for the violation of any provision either of such ordinance or of any other ordinance regulating the operation of motor vehicles on the streets of the city, the judge of the court, in addition to any punishment that may be imposed as in the particular ordinance provided, "may order the suspension by the Commission of the driver's license of said person for a period not to exceed six (6) months," and that upon the conviction of any person of any one of certain specified offenses of a serious nature, the judge "shall order the revocation by the Commissioner of the driver's license" of any person so convicted.

In other words, in the case of the conviction of any person of an ordinary traffic offense, it is made discretionary with the judge whether, in addition to the punishment imposed, he will order the suspension of such person's driver's license, but in the case of a person's conviction for any one of the specified serious offenses such as manslaughter resulting from the operation of an automobile, driving a vehicle while under the influence of intoxicating liquor, or leaving the scene of an accident, it is made mandatory and compulsory that the judge shall order the outright revocation of the license.

Elsewhere in the ordinance the commission is required to obtain daily reports from both the city courts and the court of criminal correction of the names of all persons whose licenses were suspended or revoked on that day, and to promptly notify the police department of such case of suspension or revocation. It is further provided that whenever a license is either suspended or revoked, the licensee is required to surrender the same to the court, which in turn delivers the license to the commission by which it is thereafter retained until the expiration of the period of suspension, when it is restored to the licensee upon his demand therefor.

So far as the present case is concerned, it is disclosed that petitioner, on November 2, 1937, was convicted on a charge of speeding by the judge of City Court No. 1, and that in addition to the fine imposed the judge ordered the commission to suspend petitioner's driver's license for a period of forty days.

Thereafter petitioner perfected his appeal to the court of criminal correction, wherein, on December 6, 1937, the case was tried de novo to a jury. It appears to be a conceded fact that the judge instructed the jury in such trial that in the event of a verdict of guilty they had the power to order a suspension of ...