DEPT. OF REV. & TAX., MVD v. Shipley

579 P.2d 415
CourtWyoming Supreme Court
DecidedMay 24, 1978
Docket4885
StatusPublished

This text of 579 P.2d 415 (DEPT. OF REV. & TAX., MVD v. Shipley) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DEPT. OF REV. & TAX., MVD v. Shipley, 579 P.2d 415 (Wyo. 1978).

Opinion

579 P.2d 415 (1978)

DEPARTMENT OF REVENUE AND TAXATION, MOTOR VEHICLE DIVISION, Appellant (Defendant below),
v.
James I. SHIPLEY, Appellee (Plaintiff below).

No. 4885.

Supreme Court of Wyoming.

May 24, 1978.

*416 V. Frank Mendicino, Atty. Gen., and James D. Douglass, Senior Asst. Atty. Gen., Cheyenne, for appellant.

R. Patrick Dixon, of Murane & Bostwick, Casper, for appellee.

Before GUTHRIE, C.J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

This appeal concerns administrative proceedings relative to the suspension of driving privileges following a conviction for driving while under the influence of intoxicating liquor. Appellee pleaded guilty and was convicted of the aforementioned offense on March 24, 1977, after being charged through a citation with a violation of § 31-129, W.S. 1957, C. 1967, 1975 Cum. Supp. [§ 31-5-233, W.S. 1977].[1] Subsequent to his conviction, appellee-Shipley received an Order of Suspension from the appellant-Department of Revenue and Taxation, indicating that his driving privileges were to be suspended for a period of ninety (90) days, in accordance with § 31-276.26, W.S. 1957, C. 1967, 1975 Cum.Supp. [§ 31-7-127, W.S. 1977].[2] The Order was dated and mailed on *417 April 7, 1977, but appellee stated that he did not receive it until April 9. On April 28, 1977, Mr. Shipley requested an administrative hearing on his suspension, which request was denied as being untimely under Section 13 of the Rules of appellant relating to drivers' licenses.[3] Appellee thereafter filed a petition for judicial review, seeking a reversal of the hearing-denial and a reduction of the suspension period. The trial court granted the relief requested. We will reverse the trial court's determination that a thirty (30)-day suspension was the proper statutory sanction, but we will affirm the trial court's order to the extent that it provided that appellee should be allowed an administrative hearing.

Appellant-Department of Revenue and Taxation raises the following contentions in support of its view that the trial court should be reversed in all respects:

1. "The trial court erred in reversing the ninety-day suspension period imposed by W.S. 31-276.26 and substituting the thirty-day suspension period pursuant to W.S. 31-129."
2. "The trial court erred in holding that appellee was entitled to an administrative hearing."

In response, appellee-Shipley raises a related third issue, asserting that a suspension under the ninety-day provision, § 31-276.26, would violate the due-process notice requirements.

PROPER PERIOD OF SUSPENSION

The first issue, having to do with which period of suspension is proper, calls up the question as to whether the thirty-day suspension period provided by § 31-129(e), was repealed by implication through the enactment of § 31-276.26. As recently stated by this court, statutory repeals by implication are not favored, but they will be declared and enforced where the statutes in question are repugnant by virtue of their relating to the same subject and are directed at a distinct offense with the same object. Bartlett v. State, Wyo., 569 P.2d 1235, 1241. See, Thomas v. State, Wyo., 562 P.2d 1287. A reading of the two statutes in question reveals that they are both aimed at the suspension of driving privileges upon conviction of the criminal offense of driving while under the influence — the only difference being the imposition of different periods of suspension. They are, therefore, repugnant, leaving only the question as to which statute applies. In making that determination, we must look to see which statute was last enacted. Thomas v. State, supra. Further (in settling a question such as that which confronts us here), we recognize the rule that a later specific statute controls over a general statute. Thomas v. State, supra; and Haines v. Territory, 3 Wyo. 167, 13 P. 8. In this case, we may also give some weight to a Wyoming Attorney General's opinion, dated March 27, 1973, which concluded that § 31-129(e) had indeed been repealed by implication through enactment of § 31-276.26. See, School Districts Nos. 2, 3, 6, 9 and 10 v. Cook, Wyo., 424 P.2d 751. But, see, Seyfang v. Board of Trustees of Washakie County School District No. 1, Wyo., 563 P.2d 1376.

A review of the legislative history of these two statutes discloses that § 31-129(e) was first enacted in 1953 (Ch. 184, § 1, W.S.L. 1953), while § 31-276.26 was enacted in 1973 (Ch. 238, § 1, W.S.L. 1973). Appellee-Shipley correctly notes that the provisions of § 31-129 were amended in 1973 (Ch. 22, § 1, W.S.L. 1973), but those amendments — as they affected § 31-129(e) *418 — related only to the entity which was empowered to suspend driving privileges. It is also noted that § 31-129(c) was amended in 1975 (Ch. 67, § 1, W.S.L. 1975), but again, that amendment had no relationship to the suspension of driving privileges. Even if we were to assume that the 1973 amendment constituted a re-enactment of § 31-129(e), the legislative history indicates that § 31-276.26 was adopted and approved and programmed to become effective on a date after the effective date for the 1973 amendment of § 31-129.[4] When two statutes, which are impossible to harmonize, are approved during the same legislative session, the statute taking the later effect is controlling. State v. Marcus, 34 N.M. 378, 281 P. 454, 456 (1929). Since § 31-276.26 took effect later than the amendments to § 31-129 (fn. 4, supra), we hold that the ninety-day period of suspension is the sanction which is to be imposed.

Our conclusion is buttressed by the fact that the enactment of the Driver's License Act of 1973 — which included the provisions of § 31-276.26 — also included a repeal of § 31-273(2)(b), W.S. 1957, C. 1967 (Ch. 238, § 3, W.S.L. 1973). This repealed section provided for a thirty-day suspension period upon proof of a conviction for driving a motor vehicle while intoxicated. While the legislative action in this area is admittedly confusing, under the rules of law discussed above, we must give effect to § 31-276.26 — it being the most recent legislative pronouncement in the area.

Although it was not made clear in the trial court's order, it is apparent from the comments of the court at the hearing on appellee's petition that it was primarily bothered by the fact that Mr. Shipley, the appellee, was charged and convicted under § 31-129, but his driving privileges were suspended under § 31-276.26. This concern relates directly to appellee's contention with respect to inadequate notice. In this regard, it is important to note that § 31-129 is a criminal statute, but § 31-276.26 is not. The latter provision does not provide for a fine or imprisonment sanction but merely holds that the motor vehicle division shall suspend or revoke a driver's license upon receipt of the record of conviction for one of the enumerated offenses.

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