State ex rel. Ellis v. Kelly

• Decision Date: 16 February 1960
• Docket Number: No. 12008,12008
• Citation: 112 S.E.2d 641,145 W.Va. 70
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Harry ELLIS, d/b/a Harry's Used Cars, v. Hubert A. KELLY, Commissioner Department of Motor Vehicles, and Philip R. Simms, Deputy Commissioner Department of Motor Vehicles.

Page 641

112 S.E.2d 641

145 W.Va. 70

STATE of West Virginia ex rel. Harry ELLIS, d/b/a Harry's Used Cars, v. Hubert A. KELLY, Commissioner Department of Motor Vehicles and Philip R. Simms, Deputy Commissioner Department of Motor Vehicles.

No. 12008.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 13, 1960.

Decided Feb. 16, 1960.

Syllabus by the Court.

1. The right to engage in a lawful business, though such business is subject to reasonable regulations under the police power, is protected by constitutional provisions relating to due process of law.

2. Due process of law, within the meaning of the State and Federal constitutional provisions, extends to actions of administrative officers and tribunals, as well as to the judicial branches of the governments.

3. A statutory hearing held for the purpose of determining whether a license to engage in the used car business should be canceled, must be fair, unbiased and impartial to accord with due process of law.

Glyn Dial Ellis, Logan, for relator.

W. W. Barron, Atty. Gen., Clement R. Bassett, Asst. Atty. Gen., for respondents.

GIVEN, Judge.

In this original proceeding in mandamus, relator, Harry Ellis, doing business as Harry's Used Cars, prays that a writ be issued requiring defendants, Hubert A. Kelly, Commissioner Department of Motor Vehicles, and Philip R. Simms, Deputy Commissioner Department of Motor Vehicles, to set aside an order entered by the deputy commissioner, canceling dealer's license certificate No. 2662, theretofore issued to relator, and to reinstate such license, and to restore unto relator authority to use Class D Special Plates Nos. 6310 to 6315, inclusive, theretofore issued to him. The matter is heard on the petition and the exhibits filed therewith, the answer of the commissioner and deputy commissioner and exhibits filed therewith, and on oral arguments of counsel for the respective parties.

The license in question was issued to relator on June 12, 1959, for the year beginning July 1, 1959, and ending June 30, 1960, on application made pursuant to provisions of Article 7 of Chapter 17A of the 1951 Acts of the Legislature, as amended, now Chapter 17A, Article 7 of Michie's 1955 Code of West Virginia. Pursuant to the license issued, relator operated a used car business, located in the building described in the application, situated at or near Logan. It is that business which the commissioner now contends is not being operated in accordance with the requirements of pertinent statutes.

On September 16, 1959, the commissioner, with an inspector from his office, Ralph Skeen, visited the place of business of relator and, according to their testimony before the deputy commissioner, made an exhibit with the answer of defendants, made an investigation of the operation of the business, observing facts which caused him to believe that relator was not complying with the requirements of the statutes relating to the operation of such a business. Accordingly, notice was given relator of a hearing, to be held at the office of the commissioner, for the purpose of determining whether the certificate should be canceled. The sufficiency of the first and second notices issued by the commissioner was questioned and, on October 29, 1959, a third notice was issued and served on relator requiring the hearing to be held at the offices of the commissioner, November 10, 1959. The notice recited as grounds for the cancellation of the certificate that 'the Dealer Licensee had not complied with the Statute in keeping and maintaining the records required by law and such records were not available at reasonable hours to inspection by the Commissioner of Motor Vehicles or his authorized representatives; had failed and neglected to forward to this Department a copy of temporary registration plates or tags and transfers of license plates, issued and made by the Dealer; and that there are no service facilities for servicing vehicles sold by the Dealer; and, is not a full time operation.' An order was entered by the deputy commissioner, who heard the matter, on November 23, 1959, reciting that relator had been found guilty of each of the charges contained in the third notice, except the charge that the business of relator was not a full time operation. The findings were made by the deputy commissioner and the order was entered by him. Relator and Mrs. Harry Ellis testified at the hearing and denied the charges contained in the notice.

Subsequent to the service of the first notice, considerable correspondence was had between counsel for relator and the commissioner, and certain conversations took place between the relator and the deputy commissioner. In a letter dated October 22, 1959, addressed to the commissioner, the attorney for relator requested that 'Mr. Philip R. Simms disqualify himself to sit as Judge in the hearing of our case. Further, it seems that his attitude toward both me and my client is a biased one * * *'. This suggestion or motion was acted on by the commissioner advising the attorney, by letter of October 29, 1959, that 'I do not feel that it would be proper for me to request the deputy commissioner to disqualify himself, under the circumstances'. As before noticed, the deputy commissioner held the hearing, made the findings of fact, and entered the order canceling the certificate and the authority to use the special plates, though the commissioner personally conducted the investigation and personally testified before his deputy.

The statute, Section 2, Article 7 of Chapter 17A, Michie's 1955 Code, provides that the Department of Motor Vehicles, after proper application and payment of fees, when satisfied that applicant is of good character, and has complied, or will comply, with applicable laws, shall issue a license certificate, 'which shall entitle the licensee to carry on and conduct the business of a dealer or wrecker, as the case may be'. The section further provides that 'The department may refuse to issue a license or, after written notice to the licensee and a hearing, may cancel a license when satisfied that the applicant for a license or the licensee has failed to comply with the provisions of this chapter.' It is significant that the statute requires that a 'hearing' be afforded the licensee before the cancellation of a certificate issued to him, but no procedure governing such a hearing is provided by the statute,...