Wilcox v. Billings
| Decision Date | 09 March 1968 |
| Docket Number | No. 44973,44973 |
| Citation | 438 P.2d 108,200 Kan. 654 |
| Parties | Russell WILCOX, Appellant, v. L. A. BILLINGS, Superintendent, Motor Vehicle Department, Kansas State Highway Commission, Appellee. |
| Court | Kansas Supreme Court |
1. K.S.A. 8-259(a), providing a limited type of judicial review to one whose driver's license has been suspended or revoked because of his refusal to submit to a chemical test to determine the alcoholic content of his blood pursuant to K.S.A. 8-1001, does not operate to deprive a person of another remedy existing independently. The courts are always open to hear meritorious complaints against illegal acts of nonjudicial public boards and officials at the instance of a private citizen especially aggrieved thereby.
2. The difference between directory and mandatory statutes, where their provisions are not adhered to, is one of effect only; the legislature intends neither to be disregarded. However, violation of the former is attended with no consequences but failure to comply with the requirements of the latter either invalidates purported transactions or subjects the noncomplier to affirmative legal liabilities.
3. No absolute test exists by which it may be determined whether a statute is directory or mandatory. Each case must stand largely on its own facts, to be determined on an interpretation of the particular language used.
4. Certain rules and aids to construction in determining whether a statute is directory or mandatory are stated.
5. The provision in K.S.A. 8-1001 for a sworn report of a refusal to submit to chemical test to be forwarded to the motor vehicle department is mandatory. It is essential to the validity of the subsequent proceedings for suspension or revocation of a driver's license that such report be sworn to, and where the report is not in fact sworn to, the subsequent proceedings are void.
John C. Humpage and William R. Stewart, Topeka, argued the cause and were on the brief for appellant.
Bernard L. Hausherr, Lawrence, argued the cause, and Robert C. Londerholm, Atty. Gen., John H. Morse, James E. Wells, and Ralph G. Ball, Topeka, were with him on the brief for appellee.
HARMAN, Commissioner.
This is an appeal from a district court judgment sustaining an order of the motor vehicle department revoking appellant's driver's license.
On January 9, 1965, appellant Russell Wilcox was arrested in Topeka at the scene of an automobile collision and charged with the offense of driving a motor vehicle while under the influence of intoxicating liquor. The arrest was made by two Topeka police officers working as a team. One of the arresting officers requested appellant to submit to a chemical test for alcohol, as provided by K.S.A. 8-1001. Appellant refused such test. On the same day the other officer made a written report to the motor vehicle department of the refusal, stating that on January 9, 1965, prior to appellant's arrest he had reasonable grounds to believe appellant was driving while under the influence of intoxicating liquor, that he requested appellant to submit to a chemical test for alcohol and that appellant refused to submit to such test. This report was signed but was not sworn to by the officer.
Upon receipt of this report the motor vehicle department suspended appellant's driver's license. Thereafter the department held an administrative hearing on the issue of the reasonableness of appellant's failure to submit to the test, and on February 22, 1965, it revoked his license to drive.
Appellant appealed the revocation order to the district court of Shawnee county pursuant to K.S.A. 8-259(a). There jury trial de novo was had on the issue of the reasonableness of the refusal. That issue was resolved against appellant. The trail court made other rulings adverse to appellant and he now brings the matter here for review.
Several of appellant's complaints go to trial errors involved in the determination of the single issue presented to the jury. Before these are reached, however, appellant raises another question which in our view determines disposition of this proceeding.
During trial in district court it developed that the written report of refusal sent to the vehicle department was not in fact sworn to. The officer who signed it so testified as did another police officer who affixed a notarial seal to the report. The district court specifically found, as it was bound to do on such evidence, that the report was not sworn to but, although requested to do so, it refused to grant appellant any relief because of the defect.
Appellant contends, as he did in the trail court, that this defect voids the entire revocation proceedings.
Revocation of a license to drive because of refusal to submit to a chemical test is provided for in K.S.A. 8-1001 (since amended) as follows:
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Kempke v. Kansas Dept. of Revenue, No. 94,013.
...licensee's refusal to submit to the test. 234 Kan. at 243-49, 671 P.2d 547. The Wulfkuhle court reasoned that, under Wilcox v. Billings, 200 Kan. 654, 438 P.2d 108 (1968), the statutory requirement that the officer prepare a "sworn report" of the refusal was jurisdictional. This court rejec......
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Brown v. Wichita State University
...Each case must stand largely on its own facts, to be determined on an interpretation of the particular language used. (Wilcox v. Billings, 200 Kan. 654, 438 P.2d 108; State v. Brown,205 Kan. 457, 470 P.2d 815.) It can be said the Legislature does not intend any statutory provision to be tot......
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Davis v. City of Leawood, 71925
...specified in 12-689; Davis and Stultz's position is that 12-689 applies and that its language is mandatory. They cite Wilcox v. Billings, 200 Kan. 654, 438 P.2d 108 (1968), for the rule that determining whether the legislature intended language to be mandatory or directory should be done by......
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State v. Raschke
...of mere form, not substance." Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 132 P.3d 870 (2006) (citing Wilcox v. Billings, 200 Kan. 654, 657, 438 P.2d 108 [1968]). In Hooper v. McNaughton, 113 Kan. 405, 214 P. 613 (1923), we added the concept of consequences for explicit noncomplian......
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Challenging and Defending Agency Actions in Kansas
...[FN35]. The leading Kansas case discussing the difference between mandatory and directory provisions of statutes is Wilcox v. Billings, 200 Kan. 654, 438 P.2d 108 (1968). Directory provisions are intended to be followed, but actions are not automatically invalidated when compliance is not h......
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When Good Property Goes Bad: a Primer on Kansas Asset Forfeiture Law and Procedure
...hand, a provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory. Wilcox v. Billings, 200 Kan. 654, 657, 438 P.2d 108 (1968); State v. Residential Unit & Real Estate At 930 Windwood #2, Junction City, Ks. 66441, 26 Kan.App.2d 260, 983 P.2d 86......