State v. Birmingham

• Decision Date: 05 March 1964
• Docket Number: No. 7918,7918
• Citation: 95 Ariz. 310,390 P.2d 103
• Parties: STATE of Arizona, Appellant, v. David L. BIRMINGHAM and Myron Bradley, Appellees.
• Court: Arizona Supreme Court

Page 103

390 P.2d 103

95 Ariz. 310

STATE of Arizona, Appellant, v. David L. BIRMINGHAM and Myron Bradley, Appellees.

No. 7918.

Supreme Court of Arizona, In Banc.

March 5, 1964.

Rehearing Granted April 14, 1964.

Robert W. Pickrell, Atty. Gen., Rad L. Vucichevich, Asst. Atty. Gen., Phoenix, for appellant.

Lewis, Roca, Scoville, Beauchamp & Linton, Phoenix, for appellees.

STRUCKMEYER, Justice.

Actions were commenced by the appellees David Birmingham and Myron Bradley in the Superior Court of Maricopa County as authorized by A.R.S. § 28-451 to determine whether their automobile drivers' licenses were subject to suspension. The actions were consolidated in the Superior court for decision since they presented the same question. The court entered its order permanently enjoining the suspensions by the Arizona State Highway Department, Motor Vehicle Division, for the reason that A.R.S. § 28-446, subs. A, par. 3 (as amended) ¹ was an unconstitutional delegation of power in that it did not provide an adequate guide, criterion or standard for the department to act upon, thereby leaving the enforcement of the statute to the whim and uncontrolled discretion of those public officers administering the act. From that order, the state has perfected this appeal.

By A.R.S. § 28-445 (As amended Laws 1959, Ch. 142 § 1.) the legislature has set forth grounds when the state highway department shall revoke an operator's or chauffeur's license, as for example, manslaughter resulting from the operation of a motor vehicle. By A.R.S. § 28-446 (as amended), the highway department is permitted to suspend licenses in certain instances.

Under the authority of A.R.S. § 28-202, the superintendent of the Motor Vehicle Division of the State Highway Department has prescribed certain rules to aid in carrying out the legislative directive contained in subsection A, par. 3 known as the 'point system'. The accumulation of twelve points within one twelve-month period is made grounds for the initial suspension of an operator's license. ² Both appellees accumulated either twelve points or more within a twelve-month period. It is alleged that both are gainfully employed as salesmen and an operator's license is absolutely necessary to remain employed.

Appellees agree that the legislature may delegate authority to find facts or to determine conditions under which a particular statute may operate but assert it may not constitutionally delegate authority to proclaim what the law shall be. They rely on Ariz.Const. art. 3, A.R.S., the Distribution of Powers, forbiding one department of government from exercising the powers properly belonging to another, arguing that the statute authorizing suspension fails to spell out sufficient standards to confine administrative action.

We have in the past struck down legislation as unconstitutional where either no standard or an inadequate standard was prescribed. ³ We have held legislation constitutional where adequate standards were provided. ⁴

On numerous occasions we have quoted the language of the Illinois Supreme Court in Vallat v. Radium Dial Co., 360 Ill. 407, 196 N.E. 485, 99 A.L.R. 607:

'When it leaves the Legislature a law must be complete in all its terms, and it must be definite and certain enough to enable every person, by reading the law, to know what his rights and obligations are and how the law will operate when put into execution. * * *' See Hernandez v. Frohmiller, supra, 68 Ariz. 242 at 251, 252, 204 P.2d 854 at 860.

This does not mean that the degree to which the legislature must specify a standard is capable of precise definition. In order to avoid unconstitutional delegation of power, it is not necessary for Congress to supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaption of the congressional policy to infinitely variable conditions constitutes the essence of the program. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317; Lichter v. United States, 334 u.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694.

In Haggard v. Industrial Commission, 71 Ariz. 91, 223 P.2d 915, we recognized that the standards laid down by the legislature within which the administrative body acts may be in broad and general terms. We have also noted a distinct modern tendency to be more liberal in the granting of discretion in the administrative law in fields where the complexities of economic and governmental conditions have increased, particularly where it is impractical to lay down an exact comprehensive rule. Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764.

Appellees argue that the standards for administrative action must be spelled out in the legislative enactment; that if they are negligible or non-existent, a delegation of power is unconstitutional resulting in abandonment of authority and responsibility. But we think appellees are shifting the significance of the word 'standard', using it in its strictest sense as meaning an exact measure of quantity, weight, extent, value or quality rather than in the sense of a criterion or guide. See Webster's, Third New International Dictionary, 1961.

When superficially examined in this latter sense, the statute evidences five criteria or guides by which the responsible administrative officers are to determine when a driver's license shall be suspended. It requires (1) that the suspension be upon conviction of offenses against traffic regulations; (2) that there be frequent convictions; (3) that the offenses of which the operator has been convicted be serious offenses against traffic regulations; (4) that the offenses be against traffic regulations governing the movement of vehicles; and (5) that the convictions must be such as to show a disrespect for traffic laws and a disregard for the safety of other persons on the highway.

The word 'frequency' is defined by Webster as 'an occurrence often repeated' and the word 'frequent' as 'happening at short intervals'. Hence there must be more than one conviction for serious offenses occurring within short intervals. The word 'serious' is too well understood in the English language to require definition. The Court of Appeals of New York, in Ross v. MacDuff, 309 N.Y. 56, 127 N.E.2d 806, 807, in upholding a statute permitting the suspension of an operator's license used this language:

'The circumstances under which a licensee may be deemed 'guilty of habitual or persistent violation' vary with the changes in highway conditions, amount of traffic, type of control, power and speed of vehicles changes in local traffic regulations and ordinances and a myriad of other elements which necessitate the delegation of the formulation of specific rules to administrative officials, cf. [Matter of] Mandel v. Board of Regents, of University of State of New Yourk, 250 N.Y. 173, 164 N.E. 895.' (Emphasis not ours.)

It is well settled that the legislature may make the application of a statute contingent or dependent upon the existence or occurrence of certain conditions, Southwest Engineering Co. v. Ernst, supra, 79 Ariz. 403, 416, f. n. 11, 291 P.2d 764, 773. Here, the fundamental contingency upon which the law operates is that the licensee has shown a disrespect for traffic laws and a disregard for safety of other persons.

The Arizona statute further circumscribes administrative action by imposing the conditions that there be convictions for serious offenses occurring at short intervals and involving the movement of vehicles. We think the criteria established by the legislature for the suspension of an operator's license is reasonably definite and certain involving a minimum of discretion, particularly where it is obviously impractical, as here, to lay down an exact comprehensive rule. ⁵

Appellees focus their attack on the point system, urging that two states have held point systems unconstitutional because authority was delegated without sufficient standards. See South Carolina State Highway Department v. Harbin, 226 S.C. 585, 86 S.E.2d 466 and Harvell v. Scheidt, 249 N.C. 699, 107 S.E.2d 549. Appellants' position requires an examination of the procedures established by the statute A.R.S. § 28-446 to suspend or revoke a license.

The highway department is authorized to suspend the license of an operator without a hearing upon a showing from its records or other sufficient evidence that the holder of a license has frequent convictions of serious offenses against traffic regulations, etc. Upon the suspension, the highway department shall immediately notify the licensee, in writing, and upon his request shall afford him an opportunity for a hearing within twenty days in the county wherein the licensee resides. At the hearing, subpoenas may be issued for the attendance of witnesses and the production of relevant books and papers, oaths may be...