In Re Probasco , 269 Mich. 453 ( 1934 )

I cannot concur in the opinion of Mr. Justice EDWARD M. SHARPE.

Revocation of the license of an operator of a motor vehicle is provided in Act No. 91, §§ 18, 19, Pub. Acts 1931. Under section 20, as amended by Act No. 196, Pub. Acts 1933, on petition, the circuit court of the county in which the operator resides has jurisdiction to order hearing "to take testimony and examine into all the facts and circumstances incident thereto," i. e., to the revocation, and "to confirm, modify or set aside such order of suspension, revocation or denial of such license." The general validity of the power so granted the court is not challenged.

Under section 19, revocation is on recommendation of the commissioner of public safety, after notice, hearing and determination by him of the existence of disqualifications or acts specifically set up in the statute. While the formal order of revocation is made by the secretary of State, his duties are purely ministerial and the recommendation of the commissioner is mandatory unless appeal is had to a review board under section 16. The commissioner acts in a quasi-judicial capacity.Glass v. State Board of Public Roads, 44 R.I. 54 (115 A. 244). The power of the court at least approaches judicial functions because it involves determination of the existence of specific statutory causes for revocation.

Revocation under section 18 is much different. On filing certificate of conviction of certain offenses or acts under motor vehicle laws or involving the use of motor vehicles, the secretary of State is required to revoke the driver's license. The revocation is mandatory. People v. O'Rourke, 124 Cal.App. 752 (13 Pac. [2d] 989).

"The facts and circumstances incident" to revocation under section 18 are whether (a) petitioner is the person, (b) who was convicted, (c) of a crime or act enumerated in the section and (d) a certificate of conviction has been filed with the secretary of State. Upon lack of an essential element, the revocation, of course, would be invalid and the court could set it aside. Such inquiry and action are the limits of the power of the court under the language of the statute.

In order to find other power in the court over revocation under section 18, the language of the act must be disregarded and the power inferred. The character of the offenses and acts named in the section is persuasive that the legislature provided mandatory revocation because, in the interest of public safety and welfare, it felt that persons guilty of them should not be permitted to drive cars upon the highways. And it is an unavoidable inference that the legislature did not intend such revocation to be set aside except for illegality because it provided no other grounds therefor.

Moreover, the act establishes no appropriate machinery for review of such revocation. The petition is filed in the circuit court of the county of the operator's residence. The offense may have been committed in any county of the State. Usually the commissioner of public safety has had no part in the conviction. He is charged with no responsibility for revocation of the license. He has no incentive to sustain revocation as he would have to support his action under section 19. Section 20 requires service only on the secretary of State, whose duties are purely ministerial, and the commissioner. No service is required on any of the officers or persons who had part in the original conviction.

If we infer, nevertheless, that the legislature intended the court to be a sort of pardoning agency, with power to soften the rigors of the statute in deserving(?) cases, what standard or basis of clemency shall we adopt? The circuit courts are entitled to an answer in order that they may administer the law, and the legislature that it may know what the law means and make desired amendments. Shall the basis be general character, or habits in the use of intoxicants, or average conduct, or what? If the court has jurisdiction to modify or set aside a mandatory revocation, other than for illegality, there is no escape from the conclusion that the power is absolute, arbitrary, wholly discretionary and unvexed by limits; because once the court departs from examination of "the facts and circumstances incident" to the revocation, it finds no other statutory stop signs.

Control of the highways is in the legislature. License to operate a motor vehicle on the highway is a privilege, not a right, in the sense that it is subject to regulation under the police power. The power to authorize licenses and to establish the conditions of their issuance is legislative. Power to reinstate a license mandatorily revoked by legislative flat, for reasons not defined by law, is purely legislative because it includes the authority to name the conditions for reinstatement. The power to grant and revoke under statutory rules is administrative. The inferred power cannot be vested in a court and would invalidate the act. Koeper v. Detroit StreetRailway Commission, 222 Mich. 464; Thompson v. Smith, 155 Va. 367 (154 S.E. 579, 71 A.L.R. 604).

See, also, 1 Blashfield Encyclopaedia of Automobile Law, p. 173; 1 Huddy Encyclopaedia of Automobile Law (9th Ed.), p. 481; 42 C. J. p. 747; State, ex rel. Makris, v. Superior Court forPierce County, 113 Wn. 296 (193 P. 845, 12 A.L.R. 1428); Babbitt Motor Vehicle Law (4th Ed.), p. 222.

It is the duty of the court to adopt such construction, if possible, as will sustain the law. A construction in accord with the language of the act avoids the above constitutional objection. It should be adopted. The jurisdiction of the court as to revocation under section 18 goes only to the question of illegality, to inquiry whether the statutory conditions of the revocation were present.

Writ should be denied, without costs.

BUTZEL, J., concurred with FEAD, J.