State v. Berres

• Decision Date: 03 May 1955
• Citation: 70 N.W.2d 197,270 Wis. 103
• Parties: STATE of Wisconsin, Appellant, v. Matthew Henry BERRES, Respondent.
• Court: Wisconsin Supreme Court

Page 197

70 N.W.2d 197

270 Wis. 103

STATE of Wisconsin, Appellant, v. Matthew Henry BERRES, Respondent.

Supreme Court of Wisconsin.

May 3, 1955.

Vernon W. Thomson, Atty. Gen., and Stewart G. Honeck, Deputy Atty. Gen., William J. McCauley, Dist. Atty. Milwaukee County, and Joseph Tierney, Deputy Dist. Atty., Milwaukee, Kenneth M. Plaistad, Madison, for appellant.

Schroeder, Sheets & Schroeder, Milwaukee, Robert W. Schroeder and Clyde E. Sheets, Milwaukee, of counsel, for respondent.

GEHL, Justice.

The statutes involved are as follows:

'85.08 Motor vehicle operator's license. * * *

'(25) Mandatory Revocation of License. Whenever an operator is convicted under a state law or under a county, city or village ordinance which is in conformity to the state law (except that such ordinance need not impose imprisonment to so conform), the commissioner shall forthwith revoke the operator's license upon receiving the record of such operator's conviction of any of the following offenses when such conviction has become final:

'(a) * * *

'(b) Operation of a motor vehicle while under the influence of intoxicating liquor or a narcotic or dangerous drug;

'(c) * * *

'(d) * * *

'(e) * * *

'(f) * * *

'(g) * * *

'(25a) Conviction Set Aside. Whenever a conviction is reversed, set aside or vacated, the department shall forthwith reinstate and restore any valid operator's license which had been surrendered by such licensee.

* * *

* * *

'(32) Surrender and Return of Licenses. The commissioner of his duly appointed against is authorized to take possession of any license upon the suspension or revocation thereof under the provisions of this section or to direct any person empowered to enforce the provisions of chapter 85 to take possession thereof and to return the same to the office of the commissioner. Upon receipt of notice of the suspension or revocation of any person's license to operate a motor vehicle, the license issued to or in the possession of such person shall be immediately surrendered to the department.'

The trial court held and the defendant contends that a conviction has become final so as to require the revocation of an operator's license only after an appeal has been taken, in this case to the municipal court of Milwaukee county, and is there disposed of by a final conviction, or until the time for appeal has expired. He urges that because it is provided that trial de novo is had upon such appeal the prior conviction has not become final.

The term 'final conviction' or judgment cannot be given a hard and fast definition. Whether a thing is to be considered final depends upon its purpose and use; it may be final for one purpose and not for another.

The provision of section 85.08(25) that the license shall be revoked upon receipt by the commissioner of the record of the operator's conviction 'when such conviction has become final' appears to be inconsistent with that of subsection (25a) that:

'Whenever a conviction is reversed, set aside or vacated, the department shall forthwith reinstate and restore any valid operator's license which had been surrendered by such licensee.'

If the expression 'when such conviction has become final' is to be construed as meaning that revocation shall not occur until there has been a final and conclusive determination of the litigation, that the conviction is not final while it may be followed by other proceedings determinative of the rights of the parties in the same or a reviewing court, then, of course, it cannot be reconciled with the provisions of subsection (25a) which obviously contemplate the possibility of a revocation pending an appeal. Such construction...