Underwood v. Howland, 357

• Decision Date: 20 November 1968
• Docket Number: No. 357,357
• Citation: 274 N.C. 473,164 S.E.2d 2
• Parties: James C. UNDERWOOD v. Ralph L. HOWLAND, Commissioner of Motor Vehicles of the State of NorthCarolina.
• Court: North Carolina Supreme Court

Page 2

164 S.E.2d 2

274 N.C. 473

James C. UNDERWOOD v. Ralph L. HOWLAND, Commissioner of Motor Vehicles of the State of NorthCarolina.

No. 357.

Supreme Court of North Carolina.

Nov. 20, 1968.

Thomas Wade Bruton, Atty. Gen., William W. Melvin, Asst. Atty. Gen., T. Buie Costen, Raleigh, Staff Atty., for defendant appellant.

Herbert B. Hulse, Goldsboro, for plaintiff appellee.

HUSKINS, Justice.

Plaintiff instituted this proceeding under G.S. § 20--25 seeking judicial review of the facts surrounding the revocation of his operator's license and a determination that he is entitled to its return. Under that statute, any person who has been denied a driver's license or whose license has been cancelled, suspended, or revoked, Except mandatory cancellations, suspensions and revocations, has a right to file a petition in the superior court of the county wherein he resides; and said court is vested with jurisdiction and charged with the duty '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 article.' G.S. § 20--25. Discretionary revocations and suspensions may be reviewed by the court under this statute, while mandatory revocations and suspensions may not. 'A license to operate a motor vehicle is a privilege in the nature of a right of which the licensee may not be deprived save in the manner and upon the conditions prescribed by statute. These, under express provisions of the Act, include full De novo review by a Superior Court judge, at the election of the licensee, in all cases except where the suspension or revocation is mandatory.' In re Revocation of License of Wright, 228 N.C. 584, 589, 46 S.E.2d 696, 699.

Plaintiff alleges, and the demurrer admits, these facts: (1) Plaintiff's license to operate a motor vehicle was in a state of suspension from July 13, 1966, to October 13, 1966; (2) on August 28, 1966, during said period of suspension, plaintiff was charged with operating a motor vehicle upon the highways of North Carolina without a license; and (3) plaintiff was convicted of said offense in the County Court of Wayne County on January 31, 1968. Upon these admitted facts, is revocation of plaintiff's license for a period of one year mandatory under the provisions of G.S. § 20--28.1? If so, is a period of suspension beginning March 4, 1968, and ending March 4, 1969, authorized by G.S. § 20--28.1?

Prior to 1965, operating a motor vehicle upon the public highways of the State without a valid operator's license was not an offense for which, upon conviction, the suspension or revocation of an operator's license was authorized, even though such offense was committed while the offender's license to operate a motor vehicle was suspended. Such was the law when Gibson v. Scheidt, Comr. of Motor Vehicles, 259 N.C. 339, 130 S.E.2d 679 (1963) was decided. There, Gibson had been convicted of speeding in one case and of operating a motor vehicle without a valid operator's license in a second case, both offenses having been committed during a period when his operator's license was suspended. It was held that neither conviction authorized the Department of Motor Vehicles to suspend or revoke Gibson's license under G.S. § 20--16, G.S. § 20--16.1, G.S. § 20--16(a)(1), or G.S. § 20--17. Furthermore, since Gibson was not charged with and convicted of the offense of driving while his license was suspended or revoked, as he might have been, the Department of Motor Vehicles was without authority to revoke his license under G.S. § 20--28(a).

The decision in Gibson spawned the enactment of Chapter 286 of the Session Laws of 1965, codified as G.S. § 20--28.1 which reads in part as follows: 'Upon receipt of notice of conviction of any motor vehicle moving violation committed while driving a motor vehicle, such offense having been committed while such person's operator's * * * license was in a state of suspension or revocation, the Department shall revoke the person's license effective on the date set for termination of the suspension or revocation which was in effect at the time of such offense.' This statute further provides that the period of revocation for the first offense shall be one year.

A moving violation committed while the operator's license is in a state of suspension makes revocation for an additional period mandatory under G.S. § 20--28.1. Carson v. Godwin, 269 N.C. 744, 153 S.E.2d 473.

Driving a motor vehicle on a public highway without a valid operator's license is a moving violation within the meaning of G.S. § 20--28.1. It is an offense which cannot be committed without driving a motor vehicle upon a public highway. 'Driving' or 'operating' a motor vehicle imports motion. State v. Hatcher, 210 N.C. 55, 185 S.E. 435. That the General Assembly intended such offense to be a moving violation is implied by a reading of G.S. § 20--16(c) where many specific offenses are enumerated in a schedule of point values. This schedule includes not only the offense of 'no operator's license' but also such obvious moving violations as 'passing stopped school bus', 'reckless driving', 'driving on wrong side of road', 'failure to stop for siren', etc. The schedule then concludes with the words 'all other moving violations.' The clear implication is that the legislature considered the enumerated offenses, including 'no operator's license', to be moving violations.

Hence, we hold that the Department of Motor Vehicles is required by G.S. § 20--28.1 to revoke the license of any person convicted of operating a motor vehicle upon the public highways of the State without a valid operator's license when such offense is committed while such person's license to operate a motor vehicle is in a state of suspension. The period of revocation is one year for the first offense. When does this period begin? In the case before us, plaintiff contends the words 'effective on the date set for termination of the suspension or revocation which was in effect at the time of such offense' requires the period of revocation to begin October 13, 1966. Since the Commissioner of Motor Vehicles took no action until February 27, 1968, plaintiff contends he was then legally powerless to take any action at all. This requires...