Bradford v. Ress

93 N.W.2d 17, 167 Neb. 338, 1958 Neb. LEXIS 55

• Court: Nebraska Supreme Court
• Decided: November 14, 1958
• Docket: 34414
• Status: Published

Opinions

Chappell, J.

Plaintiff, James C. Bradford, appealed to the district court from an order of defendant, L. N. Ress, director of motor vehicles, which had revoked plaintiff’s license to operate a motor vehicle in this state. Plaintiff’s primary ground for relief was in substance that the order of revocation was erroneous and unenforceable because the justice of the peace of Norfolk, Madison County, who, upon one occasion had convicted plaintiff of speeding, was without jurisdiction to render judgment of conviction, and same was void because no complaint was on file in such court charging plaintiff with the offense at the time the judgment was rendered. Attached to and made 'a part of plaintiff’s petition on appeal was a copy of a written notice dated November 19, 1956, sent by defendánt and received by plaintiff, which had notified him by registered mail that his license to operate a motor vehicle-had been revoked for 1 year from November 8, 1956; because plaintiff had accumulated -a total óf 12 or more points within a 2-year period. Such notice also demanded return of-plaintiff’s license to defendant.

■ In That connection, plaintiff’s license had thus been summarily revoked as required by section 39-7,129, R, S. Supp., 1955, and notice thereof to plaintiff contained the information required by section 39-7,130, R. S. -Supp., 1955. Also, after such final order of revocation had been rendered, defendant timely prepared an admittedly true and complete certified transcript of his proceedings concerning revocation of plaintiff’s license, and plaintiff timely filed same in the district court before answer day, as required by section 60-420, R. R. S. 1943. ' Plaintiff’s petition prayed for stay of revocation pending final determination of his appeal, which, upon hearing, was ordered by the trial court, and he still retains his operator’s license. Plaintiff also prayed for vacation of the order of revocation, reinstatement of his license, and equitable relief. -

Defendant’s answer denied generally; and alleged that plaintiff’s license to operate a motor vehicle was No. J7-7476; and that it was still possessed by plaintiff although it had been revoked by defendant as aforesaid, and its return had been demanded. Defendant also alleged that notice thereof had been sent to and received by plaintiff, • which was admitted as heretofore pointed out. Defendant prayed for dismissal of plaintiff’s petition and equitable relief. Plaintiff’s stipulated reply was a general denial.

After hearing, the trial court rendered judgment finding and adjudging the issues generally for plaintiff and against defendant for the reason that when the judgment of. conviction of plaintiff for speeding was rendered by á justice of-the peace of Madison County no complaint was on file in-that court,'thus-said court-was without jurisdiction to render the judgment and it was null and void. Upon such basis, the judgment expressly found and adjudged that plaintiff had not accumulated 12 points within any 2-year period; and it vacated and set aside the revocation of plaintiff’s license, then reinstated his license, and taxed costs to defendant. Thereafter, defendant’s motion for new trial was overruled and he appealed, assigning that the trial court erred in admitting exhibit No. 2 in evidence, and that the judgment was not sustained by the evidence. We sustain the assignments.

Neither plaintiff, defendant, nor any other witness gave any oral testimony. The record contains only the pleadings with admissions therein, stipulations, a signed and filed pretrial order, and exhibit No. 2, a certified transcript of the record of proceedings before the justice of the peace of Madison County and the judgment of conviction for speeding claimed by plaintiff to be void. Exhibit No. 2 was offered by plaintiff and admitted in evidence over defendant’s objection that it was immaterial in this appeal proceeding. Defendant’s contention in such respect was and is that validity of plaintiff’s conviction was not a question “raised before the director,” a limitation in the appeal provided by section 60-420, R. R. S. 1943, and that plaintiff’s contention that the judgment of conviction was void was a collateral attack which could not be raised on appeal from defendant’s mandatory ministerial revocation. Under the circumstances presented here, we sustain that contention.

The notice of revocation sent to plaintiff stated in substance that on April 1, 1955, and again on March 19, 1956, plaintiff was convicted of speeding in the justice court of Dodge County; that on March 28, 1956, plaintiff was convicted of speeding in the justice court of Madison County; that on November 8, 1956, plaintiff was convicted of speeding in the county court of Cuming County; and it set forth three points charged for each such conviction, as provided by subsection (10) of section 39-7,128, R. S. Supp., 1955, making a total of 12 points within a 2-year period.

In that connection, section 39-7,129, R. S. Supp., 1955, provides in part: “Whenever it shall come to the attention of the director that any person has, as disclosed by the records of such director, accumulated a total of twelve or more points within any two year period, as set out in section 39-7,128, the director shall summarily revoke (1) the license of such person to operate a motor vehicle in this state, * * * for a period of one year from the date of the latest conviction of such person * * (Italics supplied.) It will be noted that the duty to revoke is mandatory.

Section 39-796, R. S. Supp., 1955, provides in part: “To enable the director of motor vehicles punctually and economically to perform his ministerial duties in revoking * * * operators’ licenses and to insure uniformity in the keeping of the records of operators’ licenses * * * revoked by courts * * * he shall prepare and furnish to all courts of the state a standard form of abstract for conviction report, which shall include a form for the certified copy of the judgment of conviction and all necessary information as to the parties to the case, the nature of the offense, the date of hearing, the plea, the judgment, the amount of the fine * * * as the case may be. Every such abstract shall be certified * * * as a true abstract of the record of the court. In the administration of sections 39-794 to 39-796 or of any section of the Motor Vehicle Operators’ License Act, the powers and duties conferred upon the director of motor vehicles * * * with respect to the revocation * * * of any operator’s license * * * are ministerial in character. The director of motor vehicles shall have authority to revoke * * * operators’ licenses only when positively directed to do so by the terms of the certified copy of the judgment of conviction forwarded to him by the trial court, except as otherwise provided in sections 39-7,129, 60-416, and 60-419, and Chapter 60, article 5.” (Italics supplied.) It will be noted that the revocation is a ministerial act.

Also, section 39-794, R. S. Supp., 1955, provides in part: “Every justice of the peace * * * or court in this state shall make complete entries in the court docket, including the judgment of conviction, of every case in which a person is charged with violation of any provision of sections 39-616, 39-723, and 39-726 to 39-7,127, or sections 60-401 to 60-440, or any amendments to any of such sections, or any traffic regulations in city or village ordinances. In the event that such person is convicted * * * a certified copy of the judgment of conviction shall be sent forthwith by the justice of the peace * * * or court to the director of motor vehicles and to the county treasurer of the county wherein the convicted person was licensed; * *

Further, section 39-795, R. S. Supp., 1955, provides in part: “Each clerk of any court of record of this state shall also, within ten days after any final judgment of conviction of any violation of any of the provisions of sections 39-616, 39-723, and 39-726 to 39-7,127, or sections 60-401 to 60-440, or any amendments to any such sections, or any traffic regulations in city or village ordinances, send to the director and to the county treasurer a certified copy of such judgment of conviction on the standard form of abstract for conviction reports. * * * The director and the county treasurer shall keep such conviction reports in their offices, and they shall be open to the inspection of any person during reasonable business hours.”

The certified transcript of defendant’s proceedings concerning the revocation of plaintiff’s license, prepared at plaintiff’s request, and timely filed by him in the district court, was admittedly true and complete. It disclosed that each justice of the peace and the clerk of the county court respectively complied with sections 39-794 and 39-795, R. S. Supp., 1955, on certified standard conviction report forms prepared and furnished by defendant, as required by section 39-796, R. S. Supp., 1955.

In that connection, plaintiff raised no question with regard to the validity of his convictions for speeding on April 1, 1955, and March 19, 1956, in the justice court of Dodge County, or on November 8, 1956, in the county court of Cuming County. Plaintiff did argue that the standard certified forms of the abstract for conviction reports sent to defendant were fatally defective and erroneous because certain of them did not appear to have been certified by designating their official capacity as justice of the peace or clerk of the county court. However, a supplemental transcript thereof, filed by leave of this court, corrected plaintiff’s misapprehension in that respect.

The “Abstract of Court Record” of conviction certified by the justice of the peace of Norfolk, Madison County, and sent to defendant as an admittedly true and complete abstract of the judgment of conviction of plaintiff here involved, was as follows: “Defendant’s Full Name James C. Bradford Operator’s License No. J7-7476 Complete Address Battle Creek, Nebraska * * * Justice Court Docket No. V5 Page No. 115 Defendant’s Age 33 Sex M. Race W. * * * Section Violated 39-723 Offense SPEEDING Hearing Date 3-28-56 Plea Guilty X * * * Violation Date 3-25-56 Fine $10.00 Costs $4.50 * * * Arresting Officer O. H. Young Department State Patrol.” Nothing appeared therein indicating invalidity of the judgment of conviction as claimed by plaintiff.

In that connection, section 60-420, R. R. S. 1943, provides in part: “The district court shall hear the appeal as in equity and without a jury, and determine anew all questions raised before the director; * * (Italics supplied.)

In the light thereof, and despite the italicized limitation aforesaid, plaintiff claimed the right, on appeal from the order of revocation, to show that the judgment of conviction for speeding set forth in the foregoing recited abstract of record was void because he voluntarily appeared in said court on March 27, 1956, was then arraigned, waived reading of the complaint, pleaded guilty, and was fined and paid same, but there was no complaint then on file in said court and same was admittedly designated as made and filed March 28, 1956. No contention was made that plaintiff was not guilty of speeding upon that occasion or that the complaint for speeding was insufficient to charge the offense, and admittedly the judgment of conviction still stands of record, with its validity never having been challenged in that court or by appeal, error proceedings, or otherwise, except in this appeal from revocation of his operator’s license.

Contrary to plaintiff’s contention, this is not a case wherein the director had any discretion or acted in any quasi-judicial capacity. See Strasser v. Ress, 165 Neb. 858, 87 N. W. 2d 619. Section 39-7,129, R. S. Supp., 1955, required, and it was' mandatory that when it came to defendant director’s attention, that plaintiff had “as disclosed by the records of such director, accumulated a total of twelve or more points within any two year period, as set out in section 39-7,128” (here subsection (10) thereof), it was defendant director’s duty to “summarily revoke (1) the license” of plaintiff “to operate a motor vehicle in this state * * * for a period of one year from the date of the latest conviction of” plaintiff. As stated in Stewart v. Ress, 164 Neb. 876, 83 N. W. 2d 901: “This was a duty, ministerial in character, required to be performed by appellant. § 39-796, R. S. Supp., 1955.”

The question then arises, what are the “records of such director” referred to in section 39-7,129, R. S. Supp., 1955, from which defendant was required to acquire his information and summarily revoke plaintiff’s license as a mandatory ministerial duty? They were the respectively duly certified standard forms of abstract for conviction reports setting forth the judgment of conviction and other related information, as required by section 39-796, R. S. Supp., 1955, and sent to the director by the court rendering the judgment, as required by sections 39-794 and 39-795, R. S. Supp., 1955. In this case, such records of judgments of conviction appear in the “stipulated and agreed * * * true and complete transcript of the record from the files in the Office of the Director of Motor Vehicles with reference to the plaintiff James C. Bradford, up to the date of December 3, 1956, * * Herein, plaintiff, by the use of exhibit No. 2, and based alone thereon, contended that one such judgment of conviction aforesaid for speeding was void for reasons heretofore set forth.

In such respect, defendant did not argue that plaintiff was not entitled to relief from that conviction of a misdemeanor if and when in other proper proceedings there was competent- evidence that the judgment was void, but defendant did argue that under the circumstances, appeal by plaintiff from the order of revocation by the director in this civil proceeding was a collateral attack and not a proper method of seeking such relief. We sustain that contention.

Authorities relied upon by defendant are generally distinguishable from the case at bar, which involves a mandatory ministerial duty based upon statutory requirements. Authorities more directly in point under such provisions, and other authorities as well, which are generally distinguishable factually or by reason of statutory provisions, are found annotated in West Key Number System, Automobiles, § 144. One such late authority uses language which we approve and employ as controlling here. In In re Application of Gross, 284 App. Div. 786, 135 N. Y. S. 2d 435, the commissioner (comparable with our director) had revoked the driver’s license of a motorist pursuant to mandatory provisions of the statutes because of successive traffic violations within a period of 18 months. At the time the commissioner acted and revoked the license, he had certificates of conviction required to be more comprehensive in substance than our own, which had been made out by the magistrates and forwarded to the commissioner. Upon appeal from the revocation, appellant claimed that his first conviction was void for want of conformity with certain jurisdictional statutes by the trial court. In the opinion the court indicated, under circumstances which we do not deem it necessary to recite, that appellant had waived such statutes, but that issue was not and could not be presented here.

In that opinion, the court said: “However, our decision need not depend solely upon the ground of waiver, because, even if the conviction were vulnerable to direct attack, it may not be collaterally attacked in this civil proceeding. If, in fact, the conviction was improper, petitioner’s remedy was by way of a * * * proceeding to set aside the judgment of conviction * * * and unless and until that is done, he may not assert upon this appeal that the Commissioner acted improperly. The Commissioner was confronted with the proper certification of three convictions for a violation of Section 56, all occurring within eighteen months. All were in regular form with nothing to indicate the facts outlined above. He was bound to act as he did by Section 71, subd. 2, par. (c) of the Vehicle & Traffic Law, which says he ‘must’ revoke. The Legislature has neither required nor authorized the Commissioner to go behind and beyond the record of conviction and pass upon all questions relating to the validity thereof. * * * He could have been compelled to take the action he took upon the facts before him. It would impose an undue and unauthorized burden upon the Commissioner to mandate him to act upon convictions and at the same time require him to investigate the background of each one and pass upon its validity. On this record the Commissioner acted correctly upon the facts before him as he was required to do. Such a determination should not be annulled.” That is a situation identical in all material respects with the case at bar, and the conclusions set forth in such opinion are controlling. To hold otherwise would invite chaos and would delay and defeat the intended summary enforcement of plain mandatory statutes which were enacted to protect the public from the danger of repeated violations of traffic laws by heedless drivers of motor vehicles.

For reasons heretofore stated, we conclude that the judgment of the trial court should be and hereby is reversed and the cause is remanded with directions to sustain the order of revocation for 1 year from the date of the judgment rendered on the mandate herein, and to order plaintiff to return his license forthwith to defendant director as theretofore demanded. All costs are taxed to plaintiff.

Reversed and remanded with directions.