State v. Kouni, 6434

• Decision Date: 12 January 1938
• Docket Number: 6434
• Parties: STATE, Respondent, v. KENNETH KOUNI, Appellant
• Court: Idaho Supreme Court

76 P.2d 917

58 Idaho 493

STATE, Respondent, v. KENNETH KOUNI, Appellant

No. 6434

Supreme Court of Idaho

January 12, 1938

AUTOMOBILES-DRIVER'S LICENSE, SUSPENSION AND REVOCATION OF-CONSTITUTIONAL LAW-DUE PROCESS.

The statute authorizing the commissioner of law enforcement to suspend the license of a motor vehicle operator without preliminary hearing if the operator has been involved in an accident resulting in death, personal injury, or serious property damage, irrespective of negligence or responsibility for the death, injury or property damage, and without provision for review of the commissioner's action in a court of competent jurisdiction, is unconstitutional as authorizing a taking of property without due process. (Sess Laws, 1935, chap. 88, sec. 30 (a) (2), (b); Const., U.S amend. 14, sec. 1; Const. Idaho, art. 1, sec. 13.)

APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Gillies D. Hodge, Judge.

Judgment of conviction of driving a motor vehicle while operator's license was suspended. Reversed.

Reversed.

Paul W Hyatt, for Appellant.

The statute in question providing for suspension of the license where driver is involved in an accident resulting in death or personal injury of another or serious property damage is not a reasonable exercise of the police power of the state because suspension may be had where a driver is entirely innocent of any fault or negligence, as in the instant case.

An automobile is not per se a dangerous instrumentality, and the rules governing instrumentalities dangerous per se do not apply. (Cohen v. Meador, 119 Va. 429, 89 S.E. 876- 878; McNeal v. McKain, 33 Okla. 449, 126 P. 742, 743, 41 L. R. A., N. S., 775; Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A. L. R. 604, 610; 42 C. J., pp. 614, 615; Quackenbush v. Ford Motor Co., 167 A.D. 433, 153 N.Y.S. 131-133.)

The mere restriction of liberty cannot of itself be denominated public welfare and treated as a legitimate object of the police power. There must be a clear, real and substantial connection between purpose and provisions of the law. (12 C. J., pp. 929-933; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205, 210.)

Depriving a person of the use of his motor vehicle unnecessarily is not a reasonable police regulation. (Ex parte Lindley, 108 Cal.App. 258, 291 P. 638.)

Regulation of use of an automobile under police power cannot be accomplished by permitting it to some and refusing it to others of like qualifications under like circumstances and conditions. (Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A. L. R. 604, 610; Watson v. State Division of Motor Vehicles, 212 Cal. 279, 298 P. 481, at p. 483.)

The statute involved in this case violates the due process clauses of the state and federal constitutions, in that a party may be subjected to the suspension of his driver's license when he is involved in an accident, regardless of whether or not he is at fault, or to blame, and is therefore highly penal and he is subjected to a penalty because of an innocent act.

A statute which makes a crime of a perfectly innocent act, or inflicts a penalty for an innocent act, is void. (State v. Burns, 53 Idaho 418, 23 P.2d 731; Ex parte Bales, 42 Okla. Crim. 28, 274 P. 485.)

A statute creating an offense is void for want of due process of law which fails to prescribe with reasonable certainty the elements of the offense or which arbitrarily and unreasonably prescribes that certain acts innocent in themselves shall constitute criminal offenses. (12 C. J. 1203.)

The statute in question denies to the appellant the protection of the due process clause of the constitution in that the license may be suspended without notice, and without a hearing before an unbiased tribunal.

Where the state confers a license upon an individual to practice a trade, profession or occupation, such license becomes a valuable personal right which cannot be denied or abridged in any manner except after due notice and a fair and impartial hearing before an unbiased tribunal. (Abrams v. Jones, 35 Idaho 532, 533, 207 P. 724.)

J. W. Taylor, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

The legislature may properly delegate to an executive officer the power to inquire into and ascertain facts and to act upon the facts so ascertained; and this rule has been expressly applied in drivers' license cases. (Chambers v. McCollum, 47 Idaho 74, 272 P. 707; Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083, Ann. Cas. 1916E, 282, 284; Speer v. Stephenson, 16 Idaho 707, 102 P. 365; Boise Irr. & L. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321.)

It is the established law of this state that the legislature may confer judicial functions as distinguished from judicial powers upon executive tribunals in the exercise of the police power. (In re Hinkle, 33 Idaho 605, 613, 196 P. 1035; Lyon v. City of Payette, 38 Idaho 705, 224 P. 793; Humbird Lumber Co. v. Public Utilities Com., 39 Idaho 505, 228 P. 271; Natatorium Co. v. Erb, 34 Idaho 209, 215, 200 P. 348.)

Operator's license confers no vested right, only a mere privilege subject to revocation for the reasons and in the manner provided by law. (Sleeper v. Woodmansee, 11 Cal.App.2d 595, 54 P.2d 519; Commonwealth v. Funk, 323 Pa. 390, 186 A. 65; 5 Am. Jur. 593, sec. 157; Ex parte Von Perhacs, 190 Cal. 364, 212 P. 689; 1-2 Huddy Cyc. Auto. Law 481.)

Regulations by law for suspension of drivers' licenses are an exercise of the police power and are uniformly sustained as necessary to public safety. (1-2 Huddy Ency. Auto. Law 481, sec. 248 and cases cited; Opinion of Justices, 251 Mass. 617, 147 N.E. 680; Cusack v. William Laube & Co., 104 Conn. 487, 133 A. 584.)

BUDGE, J. Holden, C. J., and Ailshie, J., concur. GIVENS, J., Morgan, J., Dissenting.

OPINION

BUDGE, J.

On February 16, 1936, appellant and one Francis Blake were involved in a collision resulting in the unfortunate death of one Bernice Thomas. Subsequently a coroner's jury was duly impaneled and returned a verdict finding, in effect, that Bernice Thomas met her death as a result of an accident which occurred February 16, 1936, on the Lewis and Clark highway, due to the criminal negligence of appellant while driving his car at an excessive rate of speed, and the contributory negligence of Francis Blake, the driver of a sled, due to not having his vehicle equipped with the necessary lights while operating the same on the state highway. The verdict of the coroner's jury, accompanied by a report of a traffic officer, covering the details of the accident, was furnished to the Commissioner of Law Enforcement. Upon this information the commissioner suspended appellant's driver's license on March 19, 1936, for a period of one year. Thereafter appellant was duly informed against and charged with the crime of involuntary manslaughter, the charging part of the information being as follows:

". . . . the said defendant, Kenneth Kouni, then and there being, did then and there while engaged and occupied in operating a motor vehicle on the public highway of the state of Idaho . . . . did run and operate said vehicle so negligently and carelessly, and without due caution, by then and there driving at a high rate of speed and in a manner to endanger the lives and limbs of persons upon said highway, and on the left side of said highway (his left). And did drive the said motor vehicle into and upon a sleigh in which one Bernice Thomas, a human being, was riding; and injured the said Bernice Thomas so that she died from said injuries on or about the 17th day of February, 1936."

Appellant, on April 30, 1936, was duly and regularly acquitted of said charge by a jury. Thereafter appellant made application to the commissioner for the reinstatement of his driver's license under the provisions of section 30, subdivision (b), chapter 88, 1935 Session Laws. A hearing before the commissioner was thereafter had, appellant reserving and not waiving the question of the jurisdiction of the commissioner to hear and determine the question of the suspension, revocation or reinstatement of his driver's license, and in support of his contention relied upon the unconstitutionality of section 30, subdivision (a) (2), and subdivision (b), chapter 88, supra. Subsequent to the hearing had before the commissioner pursuant to subdivision (b), section 30, chapter 88, supra, the commissioner, on June 10, 1936, denied appellant's application for reinstatement of his driver's license and continued the suspension thereof until March 19, 1937.

Appellant by occupation is an automobile salesman, and as such made his livelihood. His work required the driving of automobiles for demonstration purposes. Subsequent to the action of the commissioner, denying appellant's application for restoration of his driver's license, appellant was duly charged by information, as follows:

". . . . on or about the 10th day of July, 1936, the defendant Kenneth Kouni, did then and there being, willfully, intentionally, knowingly and unlawfully, drive a motor vehicle upon the highways of the state of Idaho . . . . while his Motor Vehicle Operator's License was so suspended. . . ."

This cause was tried to the court, a jury having been expressly waived, and on December 2, 1936, appellant was adjudged guilty as charged and judgment was thereupon entered, from which this appeal is prosecuted.

One of the main questions raised in this case is the validity of the commissioner's order of suspension of March 19, 1936, and the constitutionality of the law under which the order of suspension was entered. Section 30, subdivision (a), chapter 88, 1935 Session Laws, provides:

"The department is hereby authorized to...