Wolan v. Ferber, A--777

• Decision Date: 06 March 1951
• Docket Number: No. A--777,A--777
• Citation: 79 A.2d 86,12 N.J.Super. 167
• Parties: WOLAN v. FERBER. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 167

12 N.J.Super. 167

79 A.2d 86

WOLAN v. FERBER.

No. A--777.

Superior Court of New Jersey.

Appellate Division.

Argued Feb. 19, 1951.

Decided March 6, 1951.

Arthur J. Sills, Perth Amboy, argued the cause for the appellant (David T. Wilentz, Perth Amboy, attorney).

John J. Kitchen, Deputy Atty. Gen., argued the cause for the respondent (Theodore D. Parsons, Atty. Gen., attorney).

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

BIGELOW, J.A.D.

This is an appeal from an order of the Director of the Division of Motor Vehicles, revoking appellant's license to drive a motor vehicle.

The proceeding was initiated by a notice dated May 18, 1950, of the proposed revocation of the license in accordance with R.S. 39:5--30, N.J.S.A. It alleges: 'Reasonable grounds for the action of this Division are based on the charge that on April 23, 1950, at about 2:08 a.m. on Route 25 at Main Street, Bonhamtown, New Jersey, you did operate a motor vehicle in a reckless and incompetent manner, and while under the influence of intoxicating liquor, thereby causing an accident.' A hearing was had June 28, 1950, at which appellant was represented by counsel, witnesses were examined and arguments heard. Two weeks later, the director made the order which is now under attack, reciting that it appeared 'that reasonable grounds exist for the revocation of your driver's license, to wit:'--and then follow that same specifications that were set forth in the notice.

The statute, R.S. 39:5--30, N.J.S.A., empowers the director to revoke a driver's license 'for a violation of any of the provisions of this Title, or on any other reasonable grounds'. We are doubtful whether the clause which authorizes revocation of the license 'on any other reasonable grounds' is valid or whether it is fatally defective in failing to warn the licensee what conduct on his part may bring about a forfeiture of his license. U.S. v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921); A. B. Small Co. v. Am. Sugar Refining Co., 267 U.S. 233, 45 S.Ct. 295, 69 L.Ed. 589 (1924). In order that the appellant may have the benefit of the doubt, we will assume that a driver's license may be revoked only for a violation of one of the provisions of Title 39. R.S. 39:4--96, N.J.S.A. imposes penalties on reckless driving, which is defined as driving 'carelessly and heedlessly * * * without due caution and circumspection * * * in a manner so as to endanger * * * a person or perperty'.

The charge that appellant 'did operate a motor vehicle in a reckless * * * manner' is a charge of a violation of section 96. The recital contained in the order revoking the license should be construed to be a finding by the director that appellant was guilty of each specification contained in the notice, including the allegation that appellant operated his automobile in a reckless manner. State v. Huggins, 84 N.J.L. 254, 258, 87 A. 630 (E. & A. 1912); Harper, Hollingsworth, etc. v. Mountain Water Co., 65 N.J.Eq. 479, 56 A. 297 (Ch., 1903); H. P. Welch Co. v. State, 89 N.H. 428, 199 A. 886, 120 A.L.R. 282 (N.H.1938), affirmed 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500; Buhler v. Department of Agriculture, 229 Wis. 133, 280 N.W. 367 (Wis.1938). This finding, by itself, furnished a sufficient basis for the revocation of appellant's license, provided, of course, the evidence supported the finding. All the other matters which are recited may be treated as surplusage.

Appellant had been attending a wedding reception at the Raritan Township Firehouse. About 1:30 a.m., he left and, with three of his friends, drove to the Dixie Belle on Marin Street in Bonhamtown to get a tomato pie. At about 2 a.m., the men returned to their car and appellant started to cross State Highway 25 which was only a few hundred feet from the Dixie Belle. He had scarcely reached the center of the highway when he...