Thompson v. Thompson

• Decision Date: 13 July 1956
• Docket Number: No. 7596,7596
• Citation: 78 N.W.2d 395
• Parties: Morley THOMPSON, Petitioner and Respondent, v. S. W. THOMPSON, State Highway Commissioner of the State of North Dakota, Respondent and Appellant.
• Court: North Dakota Supreme Court

Page 395

78 N.W.2d 395

Morley THOMPSON, Petitioner and Respondent, v. S. W. THOMPSON, State Highway Commissioner of the State of North Dakota, Respondent and Appellant.

No. 7596.

Supreme Court of North Dakota.

July 13, 1956.

Rehearing Denied Sept. 26, 1956.

Syllabus by the Court

1. Chapter 251 SLND 1955 provides for the issuance, expiration, renewal, cancelation, suspension, and revocation of motor vehicle operators' licenses. Section 30 of that chapter makes it the mandatory duty of the state highway commissioner upon receiving records of a motor vehicle operator's conviction on two charges of driving a motor vehicle while under the influence of intoxicating liquor committed within a period of eighteen months to forthwith revoke the operator's license.

2. The operator of a motor vehicle whose license is revoked by the state highway commissioner upon mandatory grounds has no right of appeal to the district court from the commissioner's order of revocation.

3. A motor vehicle operator's license vests in the licensee neither a contractual nor a property right. It may be revoked pursuant to the procedure and for violations of the conditions prescribed by the statute under which it is issued.

4. Where a motor vehicle operator's license is revoked for the commission of two offenses within eighteen months, the fact that the first offense was committed before the revocation statute became effective does not render the revocation void as being violative of constitutional inhibitions against retroactive or ex post facto legislation.

5. The suspension pursuant to the provisions of Chapter 12-53 NDRC 1953 Supp. of the imposition of a sentence upon conviction of a crime that is made a ground for the revocation of the license of an operator of a motor vehicle by Chapter 251 SLND 1955 does not suspend the conviction or affect its finality as a ground for license revocation.

Leslie R. Burgum, Atty. Gen., Vernon R. Pederson, Sp. Asst. Atty. Gen., for appellant.

Robert L. Burke, Grafton, for respondent.

MORRIS, Judge.

This is an appeal by the state highway commissioner from an order of the district court of Walsh County dated January 31, 1956, vacating and setting aside a revocation of a driver's license of Morley Thompson, dated October 28, 1955, and making permanent a temporary stay of the revocation which had been ordered by the court on November 23, 1955.

On August 16, 1955, Morley Thompson, the respondent in this court, pled guilty to an information charging that on August 13, 1955, he committed the crime of operating a motor vehicle while under the influence of intoxicating liquor as a second offense of drunken driving committed within eighteen months, the first offense being in May 1955 and both offenses having been committed within the city of Grafton. The court did not pronounce sentence at once but continued the proceedings pending a commitment of Thompson to the state hospital for treatment for alcoholism to which Thompson voluntarily agreed.

The state highway commissioner on September 8, 1955, issued an administrative order suspending Morley Thompson's motor vehicle driver's license for sixty days. On October 21, 1955, Thompson again appeared before the court, having previously been released from the state hospital. The court, pursuant to the provisions of Chapter 12-53, NDRC 1953 Supp., suspended the imposition of sentence for a period of two years. Regarding Thompson's driver's license the court stated that in view of his good conduct for about two months since his license had been suspended 'the Court in this case so far as is possible will not recommend or order a suspension.'

On November 23, 1955, the licensee petitioned the district court for a hearing on and a stay of the revocation of his driver's license. The court granted the petition, set the hearing for December 27, 1955, and stayed revocation of the license until the further order of the court. The only appearance by the commissioner was by letter of his attorney and by the filing of an affidavit of the director of the safety responsibility division of the state highway department setting forth a summary of the records of his office with respect to the two convictions of Thompson for drunken driving and the administrative orders of the commissioner first suspending the driver's license for sixty days and later on October 28, 1955, revoking the license. Thompson filed an answer to the affidavit of the director in which he challenged on statutory and constitutional grounds the power of the commissioner to revoke his driver's license. The court heard and considered the matter in the form submitted without the taking of testimony or the submission of further evidence and on January 31, 1956, issued the order from which this appeal is taken.

We first devote our attention to the power of the court to vacate and set aside the administrative order of the commissioner revoking the driver's license, which in turn involves the validity of the commissioner's order. Chapter 251, SLND 1955 purports to be a new and complete legislative enactment providing for the issuance, expiration, renewal, cancelation, suspension, and revocation of licenses of operators of motor vehicles. The licensing agency is the state highway commissioner. The statute became effective July 1, 1955. Section 28 of that chapter requires courts having jurisdiction over offenses committed contrary to laws or municipal ordinances regulating the operation of motor vehicles on highways to forward to the commissioner a record of each conviction. Section 29 provides:

'For the purposes of this Act the term 'conviction' shall mean a final conviction. Also, for the purposes of this Act a forfeiture of bail or collateral deposited to secure a defendant's appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction.'

Section 30 provides for the mandatory revocation of licenses as follows:

'The commissioner shall forthwith revoke the license of any operator upon receiving a record of such operator's conviction of any of the following offenses, when such conviction has become final: * * *

'5. Conviction, or forfeiture of bail not vacated, upon two charges of driving a motor vehicle while under the influence of intoxicating liquor or a drug, or reckless driving, or aggravated reckless driving, committed within a period of eighteen months.'

Section 31 authorizes the commissioner to suspend the license of an operator of a motor vehicle without a preliminary hearing when certain conditions are shown to exist by the records of the commissioner or other sufficient evidence. The commissioner is authorized to suspend the license where the operator

'Has been convicted of driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders him incapable of safely driving a motor vehicle.'

Section 32 affords the licensee an opportunity for hearing and provides that

'Upon such hearing the commissioner shall either rescind his order of suspension or, good cause appearing therefor, may continue, modify, or extend the suspension of such license or revoke such license.'

Suspensions or revocations under Sections 31 and 32 are discretionary on the part of the commissioner.

Section 38 provides for appeals to the court and because of its importance to the determination of the case we quote it in full:

'Any person denied a license or whose license has been canceled, suspended, or revoked by the commissioner, except where such cancellation or revocation is mandatory under the provisions of this Act, shall have the right to file a petition within thirty days thereafter for a hearing in the matter in the district court in the county wherein such person shall reside; and such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon thirty days written notice to the commissioner and thereupon to take testimony and examine into the facts of the case and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation, or revocation of license under the provisions of this Act. The decision of the district court shall be subject to appeal by either the petitioner or the commissioner.'

It should be here noted that mandatory revocations are excepted from this section. In such cases no right of appeal exists. In re Wright, 228 N.C. 584, 46 S.E.2d 696; Fox v. Scheidt, 241 N.C. 31, 84 S.E.2d 259.

The...