Underwood v. Howland

Annotate this Case

164 S.E.2d 2 (1968)

274 N.C. 473

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

No. 357.

Supreme Court of North Carolina.

November 20, 1968.

*4 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.

*5 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 *6 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 us to construe and interpret the language of the statute. In this task we are guided by the primary rule of construction that the intent of the legislature controls. "In the interpretation of statutes, the legislative will is the all important or controlling factor. Indeed, it is frequently stated in effect that the intention of the legislature constitutes the law. The legislative intent has been designated the vital part, heart, soul, and essence of the law, and the guiding star in the interpretation thereof." 50 Am.Jur., Statutes, Sec. 223. As stated by Bobbitt, J., in Lockwood v. McCaskill, 261 N.C. 754, 757, 136 S.E.2d 67, 69: "In performing our judicial task, `we must avoid a construction which will operate to defeat or impair the object of the statute, if we can reasonably do so without violence to the legislative language.' Ballard v. City of Charlotte, 235 N.C. 484, 487, 70 S.E.2d 575 [577]." Furthermore, "* * * where a strict literal interpretation of the language of a statute would contravene the manifest purpose of the Legislature, the reason and purpose of the law should control, and the strict letter thereof should be disregarded. State v. Barksdale, 181 N.C. 621, 107 S.E. 505." Duncan v. Carpenter, and Phillips, 233 N.C. 422, 426, 64 S.E.2d 410, 413. And, where possible, "the language of a statute will be interpreted so as to avoid an absurd consequence. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797; State v. Scales, 172 N.C. 915, 90 S.E. 439. A statute is never to be construed so as to require an impossibility if that result can be avoided by another fair and reasonable construction of its terms." Hobbs v. Moore County, 267 N.C. 665, 671, 149 S.E.2d 1, 5.

If the language of a statute is clear and unambiguous, judicial construction is not necessary. Its plain and definite meaning controls. Davis v. N. C. Granite Corporation, 259 N.C. 672, 131 S.E.2d 335. But if the language is ambiguous and the meaning in doubt, judicial construction is required to ascertain the legislative intent. State v. Humphries, 210 N.C. 406, 186 S.E. 473; Young v. Whitehall Co., supra, 229 N.C. 360, 49 S.E.2d 797.

*7 Words and phrases of a statute "must be construed as a part of the composite whole and accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit." 7 Strong's N.C. Index 2d, Statutes, Sec. 5.

G.S. 20-28.1 required the Department of Motor Vehicles (1) upon receipt of notice of plaintiff's conviction (2) of a moving violation (3) committed while his operator's license was in a state of suspension (4) to revoke his license for an additional period of one year (5) "effective on the date set for termination of the suspension or revocation which was in effect at the time of such offense." The words in quotations must be interpreted in context so as to render them harmonious with the intent and tenor of the entire statute and must be accorded the meaning which harmonizes with the other modifying provisions so as to give effect to the reason and purpose of the law. Watson Industries v. Shaw, Comr. of Revenue, 235 N.C. 203, 69 S.E.2d 505. So, when this statute is subjected to these rules of construction the quoted language means that the one year period of revocation shall not overlap the initial period of suspension. It means that the initial period of suspension and the additional one year period of revocation shall run consecutively and no part thereof shall run concurrently. Obviously, the Department had no authority to take action prior to receipt of notice of plaintiff's conviction. The interpretation urged by plaintiff would require the impossible and would defeat the reason and purpose of the law. Thus, the strict letter must be disregarded and the effective date of the additional period of suspension must be construed in light of the whole statute and accorded that meaning which harmonizes with the clear legislative intent.

It appearing on the face of the petition that the action taken by defendant was mandatory under G.S. § 20-28.1, the trial court properly sustained the demurrer and dismissed the proceeding.

The decision of the Court of Appeals was erroneous and is


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