Wilson v. Morris
| Decision Date | 08 July 1963 |
| Docket Number | No. 2,No. 49766,49766,2 |
| Citation | 369 S.W.2d 402 |
| Parties | Edna Martin WILSON, Appellant, v. M. E. MORRIS, Director of Revenue of Missouri, Respondent |
| Court | Missouri Supreme Court |
Walter D. McQuie, Jr., Montgomery City, for appellant.
Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for respondent.
This appeal involves the revocation of the driver's license of plaintiff-appellant. Following the revocation plaintiff filed a petition for review in the Circuit Court; to this, counsel for the Director-Respondent filed a motion to dismiss. That motion was sustained, the petition was dismissed and this appeal followed in due course.
The facts, all shown by documentary evidence, are substantially as follows: plaintiff, a woman now 82 years of age and living in Montgomery City, was stopped on Highway 40 in Montgomery County on March 4, 1962, by Trooper D. D. Wilmoth of the Highway Patrol, after he saw her car 'weave' across the center line on two occasions; the officer talked with her briefly, and (through his commanding officer) reported these facts to the proper division of the Department of Revenue, stating further that he had received 'several complaints' that plaintiff allowed her car to 'weave' across the center line, that in his opinion she was not capable of driving on high speed highways, and that she should be cited in for an examination. On March 15, 1962, the Department of Revenue notified plaintiff by letter that it had received complaints 'concerning her operation of motor vehicles' and that in compliance with Sec. 302.291 (Cum.Supp.1951) she was thereby notified to appear within thirty days at a 'driver examiner station' in her county to take a regular driver's examination. It was further stated in the letter: That she was required to submit satisfactory evidence of her physical competence to drive by procuring and presenting a physician's certificate to be completed on a form enclosed; also, that if prevented by some emergency from appearing within the stated time, she might contact an examiner with regard to an extension of time. The letter concluded with the statement that a failure to appear or to pass the driver's test would 'constitute an immediate revocation' of her driving privilege.
Plaintiff does not deny receiving the letter. She consulted counsel, two in fact, and correspondence ensued. In the first letter counsel asked the names of her 'accusers' and the charges; in the subsequent correspondence counsel discussed the meaning of 'incompetent' as used in Sec. 302.010(10), 1 and whether the Director, in fact, had 'good cause' under Sec. 302.291 to believe that plaintiff was not qualified to drive, with specific discussion as to whether or not the unsworn report could afford a reasonable basis for 'good cause'; the suggestion was also made that if plaintiff desired she should be afforded a hearing on that point, and counsel stated further: 'I feel that Mrs. Wilson is entitled to something in the nature of a hearing, or at the very least, a formal determination by the Director of good cause to believe her unqualified to retain her license based upon some substantial and competent evidence.' An extension of time was also suggested; this was granted in a letter of April 2, 1962, in which the Respondent also stated:
Upon plaintiff's failure to appear, either as originally instructed or within the extended period, her license was revoked and she was so notified by letter of June 27, 1962. Her petition for review was duly filed in the Circuit Court. We need not digest it, for plaintiff is confined here to the points made in her brief. Respondent appearing by the Prosecuting Attorney (Sec. 302.311), filed his motion to dismiss alleging: that her petition failed to state a cause of action upon which relief could be granted; that the court had no jurisdiction of the subject matter or the parties; that plaintiff had failed to exhaust her remedies under Chap. 302, and that by her failure to appear and defend against the revocation proceedings, she waived her right of appeal. The Circuit Court stayed the revocation (Sec. 536.120) pending a determination by it. On September 10, 1962, the court sustained the motion to dismiss, after receiving in evidence a duly certified exhibit incorporating all the applicable doucuments. The court was of the opinion that Sec. 302.311 provided for an adequate review, but that the issuance of the notice and the revocation of the license had been committed to the discretion of the Director, and that if he thus determined that there was 'good cause' to require an examination, his determination would not be overturned on review.
Plaintiff's counsel submits here three grounds of supposed error: (1) that a judicial review of the revocation is guaranteed under the due process clause of the Missouri Constitution; (2) that a judicial review is guaranteed under Art. 5, Sec. 22, Mo. Constitution, V.A.M.S.; (3) that a judicial review is guaranteed by Sec. 302.311. These contentions are based upon the assumption that plaintiff has had no 'judicial review.'
We look first to our jurisdiction. Among other grounds plaintiff asserts that we have jurisdiction because a State Officer is a party. The term 'state officer as a party,' as used in Art. 5, Sec. 3, Mo. Constitution, should ordinarily mean that the state officer is an adversary or contesting party. Thus, by way of illustration of ones not parties, we note the case of In re St. Joseph Lead Company, Mo., 352 S.W.2d 656, 661, where the court said, loc. cit. 661: On the other hand, where members of the Unemployment Compensation Commission sue for delinquent contributions, they are held to be within the jurisdictional provision. Trianon Hotel Company v. Keitel, 350 Mo. 1041, 169 S.W.2d 891. There they enforced a right of the state as contesting parties. At the outset here the Director was the administrative officer to whom the determination was committed. But by Sec. 302.311 it is provided that upon appeal 'the cause shall be heard de novo * * *,' that appeals from the circuit court 'may be taken as in civil cases,' and that the prosecuting attorney 'shall appear in behalf of the director, and prosecute or defend, as the case may require.' (Italics ours.) With some misgivings we hold that the director is thus made a contesting party upon the review and thereafter. There is also some merit in the contention that a decision here involves a construction of the due process clause of our Constitution. We accept jurisdiction. The contentions under Art. 5, Sec. 22, though briefed in a separate point, need not be considered, for they were not pleaded in the petition for review, nor does the point appear to have been raised otherwise until plaintiff's brief was filed here. City of St. Louis v. Butler Company, 358 Mo. 1221, 219 S.W.2d 372; State v. Brookshire, Mo., 325 S.W.2d 497, 500; Ingle v. City of Fulton, Mo., 260 S.W.2d 666.
Section 302.291, under which the Director proceeded here, is as follows:
Section 302.311, upon which plaintiff largely relies, provides: ...
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