Appeal of Turner , 1976 Okla. LEXIS 359 ( 1976 )

SIMMS, Justice

(dissenting) :

I respectfully dissent to the opinion of the majority.

While our decision in State ex rel. Dept. of Public Safety v. Kopczynski, Okl., 499 P.2d 1384 (1972) was correct upon the factual situation presented there, it is not controlling here. It is clearly distinguishable from this case.

I am aware that the Court’s syllabus in Kopczynski, supra, standing alone offers some support for the majority’s position in the instant matter. However, I believe that the syllabus is overly broad and therefore is not truly reflective of the issue determined.

In Kopczynski, supra, the district court modified a six month period of revocation imposed upon licensee for violation of the implied consent law. The basis of the courts’ judgment was a finding that the licensee would suffer an extreme hardship if revocation of his driving privileges extended for a period in excess of thirty days. We struck that part of the district courts’ order which modified the Commissioner’s order of revocation based upon our determination that the district court did not have the power to order the modification.

The correct result was reached in Kop-czynski, supra, because at that time, hardship was not a statutory ground for modification. (As discussed in the majority opinion and later in this opinion, the 1975 Amendment to § 755 made a finding of hardship a permissible ground for modification).

The syllabus in Kopczynski, supra, gives the reader the impression that the district court had no authority to modify a revocation order under any grounds. It states:

“In an appeal under 47 O.S.1971 § 755, involving an order of revocation under 47 O.S.1971 § 753, a district court, after determining that revocation of the license or permit was justified, has no authority to modify the order by reducing the period of revocation to less than six months.”

However, the only question before us concerned modification based on hardship.

It is my opinion that at the time Kop-czynski, supra, was decided § 6-211 governed implied consent appeals just as it does at the present time. Further that in spite of language of the syllabus which appears to be to the contrary, § 6-211 provided and still provides for judicial modification of a revocation order under certain circumstances.

A syllabus by the Court must be interpreted with regard to the facts on which it was predicated and the questions which were presented to and considered by the Court. See Eckels v. Traverse, Okl., 362 P.2d 683 (1961); WeGo Perforators v. Hilligoss, Okl., 397 P.2d 113 (1964); and Creswell v. Temple Milling Company, Okl., 499 P.2d 421 (1972).

Kopczynski, supra, is therefore clearly distinguishable as the basis of that modification was different from that in the instant case which leads me to conclude that the syllabus is not binding here.

In the instant matter the trial court’s judgment modifying Turner’s revocation was based upon a statutory ground. Here, the trial court acted in full compliance with the provisions of § 6-211 (e) by admitting evidence regarding Turner’s entire driving record and finding upon that evidence that while the revocation order was justified, it was imposed for an excessive length of time.

An appeal to the district court pursuant to § 755 involving an order of revocation imposed under § 753 is unquestionably governed by the provisions of 47 O.S.1971, § 6-211.

Prior to the 1975 amendment, § 755 provided :

“If the revocation or denial is sustained, the person whose license or permit to drive or non resident operating privilege has been revoked or denied may file a petition for appeal in the county court in the manner provided in 47 O.S., section 6-211, and the proceedings upon said appeal shall be the proceedings prescribed by 47 O.S., section 6-211.”

Title 47 O.S.1971, § 6-211 is a general statute granting a right of appeal from departmental orders of cancellation, suspension or revocation and placing original jurisdiction of such appeals in the district court of the petitioner’s residence. Subsection (d) prescribes the time within which a petition for appeal must be filed and a hearing held by the court.

Sub-section (e) provides that:

“Upon said hearing said court shall take testimony and examine into the facts and circumstances, including all of the records on file in the office of the Department of Public Safety [relating] to the offense committed and the driving record of said licensee, and determine from said facts, circumstances and records whether the petitioner is entitled to a license or shall be subject to the order of denial, cancellation, suspension or revocation issued by the Department.

The court may also determine whether from such testimony of said licensee’s previous driving record in the operation of motor vehicles, said order was for a longer period■ of time than such facts and circumstances warranted. In case the court finds that said order was not justified, the court may sustain said appeal, vacate the order of the Department and direct said license restored to the petitioner. The court may, in case it determines the order was justified, hut that the period of the suspension was excessive, enter an order modifying the same.’’ (Emphasis added).

This Court recognized the mandatory application of § 6-211 to appeals from revocation orders arising from violations of the implied consent law in Application of Baggett, Okl., 531 P.2d 1011 (1974), wherein the fourth paragraph of the Court’s syllabus states:

“An appeal from the sustaining of an order revoking a drivers license under the provisions of Oklahoma’s Implied Consent Law is governed by the provisions of 47 O.S.1971 §6-211.”

As amended in 1975, Section 755 reads as follows:

§ 755 Appeal. — If the revocation or denial is sustained the person whose license or permit to drive or nonresident operating privilege has been revoked or denied may file a petition for appeal in the district court in the manner provided in 47 O.S., Section 6-211, and the proceedings upon said appeal shall be the proceedings prescribed by 47 O.S., Section 6-211. The district court may modify the revocation or denial in cases of extreme and unusual hardship to allow driving in the course of employment or to and from a place of employment.

Any such modification order shall state the specific times and circumstances under which driving is permitted.

Obviously the legislative direction for appeals from implied consent revocations to proceed under the provisions of § 6-211 was left intact.

This amendment merely renders nugatory our holding in Kopczynski, supra, and its progeny. It provides a statutory ground for judicial modification of revocation orders imposed by the Department for implied consent violations in addition to those grounds already provided by § 6-211(e).

If the Oklahoma Legislature had intended § 755 to be the exclusive basis for modification, as opposed to being cumulative to the provisions of § 6-211 (e), they could have so provided.

For the above and foregoing reasons, I would affirm the judgment of the trial court.

I am authorized to state that Vice Chief Justice HODGES and Justice DOOLIN join with me in this dissent.