State v. Stehlek

• Decision Date: 06 January 1953
• Citation: 262 Wis. 642,56 N.W.2d 514
• Parties: STATE, v. STEHLEK.
• Court: Wisconsin Supreme Court

Page 514

56 N.W.2d 514

262 Wis. 642

STATE, v. STEHLEK.

Supreme Court of Wisconsin.

Jan. 6, 1953.

Prosecution in the District Court of Milwaukee County of Frank E. Stehlek, under Sec. 85.09(31) and (32)(a) and (b) Stats., for failure and refusal to surrender and return to the Commissioner of Motor Vehicles his operator's license, after his automobile was involved in a collision with a pedestrian, Frederick Rickter, on October 26, 1951. On April 17, 1952, the Commissioner issued a 'notice of suspension' of Stehlek's driver's license, if he failed to comply with Sec. 85.09 Stats. Respondent Stehlek failed to post security as required by said notice and an order of suspension of his operator's license was made on May 2, 1952, and served on Stehlek by mail. He refused and failed to surrender his driver's license pursuant to the notice, and was thereupon prosecuted in the District Court for unlawfully and wilfully failing and refusing to return his operator's license to the Motor Vehicle Department after suspension thereof, in violation of 85.09(31) Stats. Judge Barry presided at the trial, and adjudged that Sec. 85.09 Stats. was unconstitutional and therefore dismissed the action against Stehlek for his failure to surrender his operator's license under Sec. 85.09 Stats. The state appealed from the judgment.

Vernon W. Thomson, Atty. Gen., and Stewart G. Honeck, Deputy Atty. Gen., William J. McCauley, Dist. Atty. Milwaukee Co., Joseph E. Tierney, Deputy Dist Atty., and James J. O'Donnell, Asst. Dist. Atty., Milwaukee, for appellant.

Michael D. Preston, Milwaukee, for respondent.

Glenn W. Stephens, Madison, Charles C. Collins, Ross D. Netherton, Jr., Washington, D. C.; Joseph H. Braun, Hugh Neill Johnson and Philip E. Ryan, Chicago, Ill., for American Automobile Ass'n, Inc., as amicus curiae.

FRITZ, Chief Justice.

An examination of the statutes of the 48 states in the United States discloses that all have some type of safety financial responsibility law regarding the operation of motor vehicles, and that 41 states have substantially the same provisions as are in the 'safety responsibility law' of the Wisconsin statutes, Sec. 85.09(5)(a) to (16)(c) and one state, Massachusetts, has a wholly compulsory automobile insurance law for accidents involving bodily injury or death.

The trial court assigned three additional grounds of invalidity, but respondent's sole challenge to the constitutionality of Sec. 85.09(5), Stats. was in the nature of a motion to dismiss this action on the ground that Sec. 85.09(5) Stats. 'took away a privilege and right given to a particular person without due process of law.' The only evidence is that offered by the state, which shows that respondent's driver's license was duly suspended for failure to post security in compliance with the requirements of the safety-responsibility law; and that he refused to surrender his license following his suspension upon the lawful demand in violation of the statute which makes such refusal a misdemeanor. Consequently, solely questions of law are presented, which can and must be determined by an examination of the statute itself, in the light of principles of construction applicable to questions involving the constitutionality of statutes.

It is a fundamental principle of statutory construction that a regularly enacted statute, or an order of an administrative body, made pursuant to statutory authority will be presumed to be constitutional until it has been declared to be otherwise by a competent tribunal. Such presumption is raised by the fact of the enactment of the statute by the legislature, and it extends to everything in the act on which it is based. The party attacking the statute has the burden of overcoming the presumption and showing that the statute is unconstitutional. The burden does not shift, because of the difficulty in proving it. 16 C.J.S., Constitutional Law, § 99, pages 250-260.

The exercise of the power to declare laws unconstitutional by inferior courts, should be carefully limited and avoided if possible. The authorities are to the effect that unless it appears clearly beyond a reasonable doubt that the statute is unconstitutional, it is considered better practice for the court to assume the statute is constitutional, until the contrary is decided by a court of appellate jurisdiction. That is especially true where, as in this case, the statute has been in effect for nearly eight years, and has been enforced in innumerable cases.

Notwithstanding these well established considerations, the trial court reversed its own policy of enforcing the law in question, Sec. 85.09 Stats., and declared it to be unconstitutional. As the respondent offered no proof whatsoever on the trial, he has wholly failed to meet the burden of proof which the law has placed upon him or any party who attacks the constitutionality of a law.

The weight of authority is to the effect that the driving of an automobile upon public highways is a privilege, and not a property right; and is subject to reasonable regulation under the police power in the interest of public safety and welfare. Sullins v. Butler, 175 Tenn. 468, 135 S.W.2d 930, 932, citing 5 Am.Jur. 593, 42 C.J. 740, 746; See, also, 60 C.J.S., Motor Vehicles, § 146; Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385. In a leading case involving the financial responsibility law of New Hampshire, Rosenblum v. Griffin, 89 N.H. 314, 197 A. 701, 704, 115 A.L.R. 1367, 1372, the court stated:

'* * * 'The operation of an automobile upon the public highways is not a right, but only a privilege which the state may grant or withhold at pleasure. (Com. v. Kingsbury, 199 Mass. 542, 85 N.E. 848, L.R.A.1915E, 264) * * * what the state may withhold it may grant upon condition. One condition imposed is that the operator must, in case of accident, furnish the demanded information. This condition is binding upon all who accept the privilege. 'The statute confers a privilege which the citizen is at liberty to accept by becoming a licensee, or not, as he pleases. Having accepted the privilege, he cannot object to any conditions which have been attached thereto by a grantor with power to entirely withhold the privilege.' State v. Corron, 73 N.H. 434, 445, 62 A. 1044, * * *.''

In Ballow v. Reeves, Ky., 238 S.W.2d 141, 142, a financial responsibility law similar to Sec. 85.09(5)(a) to (16)(c) Wis.Statutes was involved, and defendant's objection was that it deprived him of the use and enjoyment of his property without due process of law. In dismissing appellant's petition, the court stated:

'The right to operate a motor vehicle is a privilege, subject to reasonable regulation by the state in the exercise of its police power. Commonwealth v. Harris, 278 Ky. 218, 128 S.W.2d 579. It has generally been recognized that financial responsibility laws constitute both reasonable regulations of the public highways, and proper measures to protect the public safety. See In re Opinion of the Justices, 81 N.W. 566, 129 A. 117, 39 A.L.R. 1023, and Rosenblum v. Griffin, 89 N.H. 314, 197 A. 701, 115 A.L.R. 1367[1372].'

To the same effect, in Larr v. Dignam, 317 Mich. 121, 26 N.W.2d 872, 874, the court stated:

'* * * In People v. Thompson, 259 Mich. 109, 123, 242 N.W. 857, 861 * * * 'In accepting the license (of operating a motor vehicle upon the public highways) from the state, one must also accept all reasonable conditions imposed by the state in granting the license. * * * It is elementary law, where special privileges are granted by the state, special duties in connection therewith may be exacted without providing compensation therefor. * * * The right to impose the condition is not based upon culpability, but, instead, is incident to his status as a licensee.''

In the case at bar, the trial court in apparently concluding that Sec. 85.09 was unconstitutional, relied upon the assertion by defendant's counsel that:

'There is no provision in the sections (85.09) for a court review of the proceedings by the commissioner excepting only that if the person notified succeeds in obtaining a judgment of a court absolving him from negligence he automatically becomes entitled to reinstatement.'

When the conditions imposed by the legislature, requiring the commissioner to suspend a license have been fulfilled, by acts or omissions of the licensee, the commissioner's duty to suspend is mandatory. His function in carrying out the will and mandate of the legislature is purely ministerial. The legislature has factually determined and expressed that determination in the statute itself, as to when and under what circumstances a licensee shall be suspended. There is then no need for reviewing the commissioner's acts, unless he has deviated from the terms of the statute. However, in those particulars where the commissioner exercises some measure of discretion, there is provision for reviewing his acts. For example, the amount of security demanded by the commissioner is subject to review by the court under Sec. 85.09(2)(b) Stats. which provides:

'Any person aggrieved by an order or act of the commissioner, under the provisions of chapter 227, may, within 10 days after notice thereof, file a petition in the circuit court of Dane county for a review thereof; but the filing of such a petition shall not suspend the order or act unless a stay thereof shall be allowed by a judge of said court pending final determination of the review. The court shall summarily hear the petition and may make any appropriate order or decree.'

Thus, in Heart v. Fletcher, 184 Misc. 659, 53 N.Y.S.2d 369, 373, the court stated:

'* * * The payment by the petitioner of the required fees upon the issuance to him of the operator's license and registration certificate did not convert the privilege granted into a property right of which he might not be deprived without a notice and hearing, i. e., due process of law. The privilege was granted subject to the terms...