Gibson v. Scheidt

130 S.E.2d 679 (1963)

259 N.C. 339

Claude Andrew GIBSON v. Edward SCHEIDT, Commissioner of Motor Vehicles.

No. 475.

Supreme Court of North Carolina.

May 1, 1963.

*682 William Joslin, Raleigh, for appellant.

T. W. Bruton, Atty. Gen., Chas. D. Barham, Jr., Asst. Atty. Gen., Raleigh, for appellee.

BOBBITT, Justice.

Plaintiff was convicted on May 2, 1960, of operating a motor vehicle upon the public highways at a speed in excess of seventy-five miles per hour. For this offense, G.S. § 20-16(a) (10) and G.S. § 20-19(b) authorized the issuance on May 20, 1960, of the order suspending plaintiff's operator's license from May 2, 1960, until August 2, 1960.

The order issued March 24, 1961, suspending plaintiff's operator's license for an additional year, that is until August 2, 1961, was based on plaintiff's conviction on July 27, 1960, in the City Court of Raleigh, of operating a motor vehicle upon the public highways on July 8, 1960, without an operator's license. The order issued February 23, 1962, suspending plaintiff's operator's license for two years, that is, until January 18, 1964, was based on plaintiff's conviction on January 18, 1962, in the Municipal Court of High Point, of operating an automobile upon the public highways on January 2, 1962, at a speed of seventy-five miles per hour in a sixty-mile per hour zone.

Neither the offense for which plaintiff was convicted in the City Court of Raleigh nor that for which he was convicted in the Municipal Court of High Point is an offense for which upon conviction the suspension or revocation of an operator's license is mandatory. G.S. § 20-17, G.S. § 20-16.1, G.S. § 20-16(a) (1). Moreover, neither is an offense for which the Department is authorized by G.S. § 20-16 to suspend an operator's license.

G.S. § 20-28(a), the statute on which defendant relies as authority for the order of February 23, 1962, in part, provides:

"Any person whose operator's or chauffeur's license has been suspended or revoked other than permanently, as provided in this chapter, who shall drive any motor vehicle upon the highways of the State while such license is suspended or revoked shall be guilty of a misdemeanor and his license shall be suspended or revoked, as the case may be, for an additional period of one year for the first offense, two years for the second offense, and permanently for a third or subsequent offense; * * *

"Notwithstanding any other provisions of this section, in those cases of conviction of the offense provided in this section in which the judge and solicitor of the court wherein a conviction for violation of this section was obtained recommend in writing to the Department that the Department examine into the facts of the case and exercise discretion in suspending or revoking the driver's license for the additional periods *683 provided by this section, the Department shall conduct a hearing and may impose a lesser period of additional suspension or revocation than that provided in this section or may refrain from imposing any additional period. Any person convicted of violating this section before or after May 14, 1959, shall be entitled to the benefit of the foregoing relief provisions.

"Upon conviction, a violator of this section shall be punished by a fine of not less than two hundred dollars ($200.00) or imprisonment in the discretion of the court, or both; provided, however, the restoree of a suspended or revoked operator's or chauffeur's license who operates a motor vehicle upon the streets or highways of the State without maintaining financial responsibility as provided by law shall be punished as for operating without an operator's license." (Our italics)

G.S. Chapter 20, Article 2, entitled "Uniform Driver's License Act," vests exclusively in the State Department of Motor Vehicles the issuance, suspension and revocation of licenses to operate motor vehicles upon the public highways. Fox v. Scheidt, Com'r of Motor Vehicles, 241 N.C. 31, 34, 84 S.E.2d 259, and cases cited; Honeycutt v. Scheidt, 254 N.C. 607, 608, 119 S.E.2d 777. However, "(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." In re Revocation of License of Wright, 228 N.C. 584, 46 S.E.2d 696; Harvell v. Scheidt, Com'r of Motor Vehicles, 249 N.C. 699, 706, 107 S.E.2d 549.

It is mandatory for the Department to revoke the license of any operator upon receiving a record of such operator's conviction of any offense listed in G.S. § 20-17. Carmichael v. Scheidt, Com'r of Motor Vehicles, 249 N.C. 472, 106 S.E.2d 685. It is mandatory for the Department to suspend for thirty days the license of any operator on receiving a record of such operator's conviction of any offense listed in G.S. § 20-16.1. Shue v. Scheidt, Com'r of Motor Vehicles, 252 N.C. 561, 114 S.E.2d 237. As a basis for suspension or revocation of an operator's license, a plea of nolo contendere has the same effect as a conviction or plea of guilty of such offense. Mintz v. Scheidt, 241 N.C. 268, 269, 84 S.E.2d 882, and cases cited.

Subject to the provision discussed below, "(c)onviction of operating a motor vehicle when operator's license has been suspended makes mandatory an additional suspension of his license. G.S. 20-28." (Our italics) Beaver v. Scheidt, Com'r of Motor Vehicles, 251 N.C. 671, 111 S.E.2d 881. G.S. § 20-16(a), in part, provides that "(t)he Department shall have authority to suspend the license of any operator or chauffeur with or without preliminary hearing upon a showing by its records or other satisfactory evidence that the licensee: (1) Has committed an offense for which mandatory revocation of license is required upon conviction." (Our italics)

Here, plaintiff has never been convicted of or tried for the offense defined in G.S. § 20-28(a), namely, the operation of a motor vehicle while his operator's license was suspended or revoked. Unless and until he is so tried and convicted, G.S. § 20-28(a) vests no authority in the Department in respect of the suspension or revocation of his operator's license.

Defendant contends plaintiff's convictions in the City Court of Raleigh and in the Municipal Court of High Point for offenses involving the operation of a motor vehicle upon the public highways are sufficient to authorize and require the order of February 23, 1962. (Hence, the order of February 23, 1962, was issued without prior notice to plaintiff or hearing.) This contention ignores the second paragraph of G.S. § 20-28(a), made an integral part of G.S. § 20-28 by Chapter 1406, Session Laws of 1957, which indicates plainly that suspension for an additional period or revocation *684 must be based on a conviction for violation of G.S. § 20-28(a). It provides further that, in the event of such conviction, if the solicitor and judge of the court in which the operator is convicted so recommend in writing, suspension for an additional period or revocation is not mandatory but within the discretion of the Department after it has conducted a hearing. Obviously, the General Assembly anticipated there would be hardship cases where the violation of G.S. § 20-28(a) would be technical rather than wilful. Defendant's contention is in conflict with the language and with the purpose of said 1957 amendment.

The judgment of the court below is reversed on the ground that, absent a conviction of plaintiff for the criminal offense defined in G.S. § 20-28(a), the Department's order of February 23, 1962, was not authorized by G.S. § 20-28(a) or otherwise. We do not reach and therefore do not discuss other questions debated in the briefs.

Reversed.

PARKER, J., dissents.