Mintz v. Scheidt , 241 N.C. 268 ( 1954 )

84 S.E.2d 882 (1954) 241 N.C. 268

Luther Lee MINTZ, Petitioner,
v.
Edward SCHEIDT, Commissioner of Motor Vehicles of North Carolina, Respondent.

No. 595.

Supreme Court of North Carolina.

December 15, 1954.

Harry McMullan, Atty. Gen., and Samuel Behrends, Jr., member of staff, Raleigh, for the State.

John C. Wessell, Jr., and Elbert A. Brown, Wilmington, for petitioner-appellee.

PARKER, Justice.

This decisive question is presented for determination: Was the chauffeur's license of petitioner suspended by the State Department of Motor Vehicles pursuant to the provisions of G.S.N.C. § 20-16, or was his license revoked under the mandatory provisions of G.S.N.C. § 20-17? If the Department acted pursuant to G.S.N. C. § 20-16, the case of Winesett v. Scheidt, 239 N.C. 190, 79 S.E.2d 501, controls, and the decision of the lower court was correct. If the Department revoked petitioner's license under G.S.N.C. § 20-17, Fox v. Scheidt, 241 N.C. 31, 84 S.E.2d 259, controls, and the lower court should be reversed.

G.S.N.C. § 20-16 is captioned: "Authority of Department to suspend license", and provides: "(a) The Department shall have authority to suspend the license of any operator or chauffeur 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; 2. Has been involved as a driver in any accident resulting in the death or personal injury of another or serious property damage, which accident is obviously the result of the negligence of such driver * * *." Subsection (c) of this section provides that upon a suspension of license of any person by the Department, the person, whose license was suspended, upon request shall be given a hearing, and upon such hearing, after hearing the evidence, the Department shall either rescind its order of suspension, or good cause appearing therefor, may extend the suspension of such license.

G.S.N.C. § 20-17 is headed: "Mandatory revocation of license by Department" and reads: "The Department shall forth-with revoke the license of any operator or chauffeur upon receiving a record of such operator's or chauffeur's conviction for any of the following offenses when such conviction has become final: 1. Manslaughter (or negligent homicide) resulting from the operation of a motor vehicle." Other cases specified in this section requiring mandatory revocation are omitted as not relevant.

It is true that the official notice and record of revocation of license mailed to the petitioner does not state that the Department acted under G.S.N.C. § 20-17, but throughout the word, revocation, and not suspension, is used, and the reason specified for the revocation is conviction of involuntary manslaughter 7 January 1954, Superior Court, Burgaw, North Carolina: these words conform with the language of G.S. N.C. § 20-17 and not with G.S.N.C. § 20-16. A plea of nolo contendere has all the effect of a conviction by a jury, or a plea of guilty, for the purposes of that case only. Fox v. Scheidt, supra; and Winesett v. Scheidt, supra. The petitioner makes no contention that his conviction had not become final. We take judicial notice that Burgaw is the county seat of Pender County. Baker v. Varser, 239 N.C. 180, 79 S.E.2d 757. It seems plain, and we so hold, that the Department revoked the chauffeur's license of petitioner under the mandatory provisions of G.S.N.C. § 20-17. There is no evidence to support the trial judge's finding of fact that petitioner was notified by the Department that his chauffeur's license was suspended under G.S.N.C. § 20-16. While the letter of the Department dated 3 March 1954 states that pursuant to G.S.N.C. § 20-16(c), a hearing was granted petitioner, the evidence as to the action of the Department was mandatory revocation under G.S. N.C. § 20-17, and not suspension under G.S.N.C. § 20-16.

The record in Winesett v. Scheidt, supra, shows that Winesett in his petition, paragraph 5, alleged: that the Department sent him notice in writing through the U. S. Mails "that his said operator's license to operate motor vehicles on the public highways of North Carolina was suspended," and that "said notice stated that the cause of suspension was G.S. 20-16(1) * * *." Scheidt, the respondent, in his answer to the petition, paragraph 5, stated: "That the allegations contained in Paragraph 5 of the Petition are admitted."

We said in Fox v. Scheidt [241 N.C. 31, 84 S.E.2d 261], supra: "G.S.N.C. § 20-25, which gives the right of appeal, expressly excepts a right of appeal when such cancellation is mandatory. ``No right accrues to a licensee who petitions for a review of the order of the department when it acts under the terms of G.S. § 20-17, for then its action is mandatory.' In re [Revocation of License, etc., of] Wright, 228 N.C. 584, 46 S.E.2d 696."

Although the Department gave petitioner a hearing under G.S.N.C. § 20-16 (c), such a hearing was not authorized by law, because that subsection applies to a suspension of a driver's license under G.S. N.C. § 20-16, and not to a mandatory revocation under G.S.N.C. § 20-17.

The right of appeal to the Court under G.S.N.C. § 20-25 is granted only when the Department exercises its discretionary power. In re Revocation of License, etc., of Wright, 228 N.C. 584, 46 S.E.2d 696. Therefore, the lower court had no jurisdiction of the present proceeding for the Department revoked petitioner's license under the mandatory provisions of G.S.N.C. § 20-17, and the entire proceeding was void ab initio.

The revocation of the chauffeur's license of the petitioner by the Department under the mandatory provisions of G.S. N.C. § 20-17 was the exercise of a governmental or sovereign right prescribed by the General Assembly in the interests of public safety upon the highways of the State, and respondent is not estopped by the letter of the Department dated 3 March 1954 granting petitioner a hearing from asserting that the revocation was done under the mandatory provisions of that section. Henderson v. Gill, 229 N.C. 313, 49 S.E.2d 754; Washington v. McLawhorn, 237 N.C. 449, 75 S.E.2d 402.

When the Department of Motor Vehicles suspends or revokes a driver's license to operate a motor vehicle, all its records, including the notice mailed to, or served upon, the licensee, should state explicitly whether it acts under the provisions of G.S.N.C. § 20-16, or the provisions of G.S.N.C. § 20-17.

The recent decision of Fox v. Scheidt, supra, is controlling. Under its authority the judgment of the lower court is reversed, and the proceeding will be dismissed with the costs taxed against the petitioner. It is so ordered.

Reversed.