In Re Probasco , 269 Mich. 453 ( 1934 )

On April 13, 1934, before James Quayle, justice of the peace of the city of Corunna, Shiawassee county, Michigan, the petitioner pleaded guilty to a charge of driving an automobile while intoxicated. He was given the minimum penalty of $50 fine and costs. In accordance with statute, the record of this conviction was reported to the secretary of State, who revoked petitioner's operator's license.

On May 5, 1934, petitioner filed his petition in the circuit court of Ionia county under Act No. 91, § 20, Pub. Acts 1931, as amended by Act No. 196, Pub. Acts 1933, for a hearing on the matter of the revocation of his driver's license. This petition came on for hearing on May 26, 1934, and was dismissed by the circuit judge on the grounds that no judicial question is involved, the statute being mandatory and the action of the secretary of State purely ministerial; and that any judicial review provided by the statute as to mandatory revocation of licenses is no more than an unconstitutional attempt of the legislature to grant pardoning power to the courts.

The petitioner, having obtained this court's leave to appeal, brings this motion for a mandamus to compel the circuit judge to grant petitioner a hearing on the merits. The attorney general has filed a brief supporting the constitutionality of the statute.

The relevant sections of the operators' license act, Act No. 91, Pub. Acts 1931, as amended by Act No. 196, Pub. Acts 1933, read as follows (the parts added by the amendment are italicized):

"SEC. 18 (a) The department shall forthwith revoke the license of any person upon receiving a record of the conviction of such person of any of the following crimes. * * *

"(2) Driving a vehicle while under the influence of an intoxicating liquor or a narcotic drug. * * *

"SEC. 20. Any person denied a license to operate a motorvehicle or whose license for such purpose has been revoked or suspended by the secretary of State under the provisions ofthis act or any other law of this State shall have a right to file a petition for a hearing in the matter in a circuit court in the county wherein such person shall reside, and such court is hereby vested with jurisdiction and it shall be its duty toenter an order setting the cause for hearing for a daycertain in not to exceed thirty days from the date of suchorder, such order, together with a copy or copies of thepetition and all supporting affidavits, shall be served byregistered mail on the secretary of State and commissioner ofpublic safety at least ten days before the date set for suchhearing. On the hearing in said cause such court is herebyauthorized to take testimony and examine into all the facts andcircumstances incident thereto. Such court is furtherauthorized to confirm, modify or set aside such order ofsuspension, revocation or denial of such license. (Prior to amendment, the act read "and to determine whether the petitioner is entitled to a license or subject to revocation or suspension or refusal of license under the provisions of this act.") The order so made shall be duly entered and a certifiedcopy thereof shall be forthwith filed with the secretary ofState.

"SEC. 21. Any person whose license is revoked under this act shall not be entitled to apply for or receive any new license until the expiration of one year from the date such former license was revoked, except as is providedby section twenty of this act."

This case does not involve any question of review by the courts of denials of operators' licenses or of revocations or suspensions of operators' licenses under the discretionary provisions of section 19 of the above act or under any other statute, and the present discussion will be confined to the powers and duties of the courts in relation to mandatory revocations under section 18.

We cannot agree with the interpretation of the court below that section 18, when construed with sections 20 and 21, requires an obligatory and unalterable revocation of operators' licenses in the named cases for not less than one year, or that section 20 vests the courts with pardoning power.

Act No. 91, Pub. Acts 1931, is, with slight changes, the uniform operators' and chauffeurs' license act, which has been adopted in a number of other States. Section 20 in the uniform act, and as adopted by other states, reads, "Any person denied a license or whose license has been revoked by the departmentexcept where such revocation is mandatory under the provisionsof this act," etc.

The omission in the Michigan act of the italicized clause is significant and, together with the 1933 amendment to section 21, resolves any doubts as to the intention and purpose of the legislature. The united effect of the three sections above quoted is to require the department of State to revoke the operator's license of any person convicted of any of certain named crimes, but at the same time to empower the circuit court to confirm, modify or set aside such revocation after a hearingde novo upon proper petition. In other words, the legislature made the conviction of certain offenses, so far as the department of State is concerned, conclusive as to the unfitness of the offender to operate a motor vehicle; but alleviated the arbitrariness which would result from such a provision standing alone by the further provision that the circuit court may, upon proper petition, examine into the facts and circumstances of any particular case and give relief if called for. In this way it was no doubt thought that individual injustices might in large measure be avoided, while the cost of the proceeding would be a deterrent to any considerable amount of litigation. Furthermore, by using existing local machinery, the legislature was attempting to provide a convenient method of hearing for the individual without the added expense to the State of setting up new boards or machinery.

The power of the court to modify or set aside the revocation of a petitioner's driving license does not amount to a pardon. In the first place, the revocation of an operator's license under section 18 is not a criminal penalty. It is not a part of the sentence of the court and it is not a punishment for the offense. Rather, the conviction of certain offenses is declared to show — conclusively, to be sure, unless called into question under section 20 — the unfitness of the offender to operate a motor vehicle on the public streets and highways. Discretionary power in a board to revoke a pharmacist's license for fraud in obtaining it was upheld as not a delegation of the legislative power to define punishable offenses. Matter ofMandel v. Board of Regents of the University of the State ofNew York, 250 N.Y. 173 (164 N.E. 895). Again, a State statute denying persons convicted of felony the right to practice medicine was held not ex post facto as increasing the penalty of one convicted prior to the enactment of the statute.Hawker v. New York, 170 U.S. 189 (18 Sup. Ct. 573). In the second place, the court in setting aside the revocation does not remit or overrule a uniform and invariable statutory command. The statute itself provides that the initial revocation is to stand only where no determination on the merits is applied for.

The hearing provided in the circuit court as to mandatory revocations is not in any proper sense an appeal from or review of the action of the department of State. The statute does not speak of it as such, but treats the hearing in the circuit court in all respects as an original proceeding. There can, therefore, be no objection on the ground that the legislature has attempted to grant a right of appeal from a nonjudicial body.

Writ granted. Since the question is a public one, no costs will be allowed.

NELSON SHARPE, C.J., and POTTER, NORTH, WIEST, and BUSHNELL, JJ., concurred with EDWARD M. SHARPE, J.