In Re Revocation of License to Operate a Motor Vehicle of Wright

45 S.E.2d 370, 228 N.C. 301, 1947 N.C. LEXIS 324

• Court: Supreme Court of North Carolina
• Decided: December 10, 1947
• Status: Published

Opinion

Baknhiill, J.

Tbe statute, G. S. 20-16, vests tbe Department of Motor Yebicles with- discretionary authority “to suspend tbe license of any operator without preliminary bearing upon a showing by its records or other satisfactory evidence tbat tbe licensee: (7) Has committed an offense in another state, which if committed in this state would be grounds for suspension or revocation”; and in this State tbe revocation of a driver’s license is mandatory whenever it is made to appear tbat tbe licensee has been found guilty of “Driving a motor vehicle while under tbe influence of intoxicating liquor or a narcotic drug.” G-. S. 20-17 (2). Hence tbe department bad the right to act upon receipt óf tbe information furnished by tbe State Highway Department of South Carolina. See, also, G-. S. 20-23.

But tbe petitioner bad tbe right to a review by a Superior Court judge. G. S. 20-25.

Tbe power of tbe court, bere invoked, to review tbe order of suspension made by respondent is not the limited, inherent power of tbe judicial branch of tbe government to review tbe discretionary acts of an administrative officer. Pue v. Hood, Com’r., 222 N. C., 310, 22 S. E. (2d), 896, and cited cases. Tbe power is conferred by statute. G. S. 20-25. Hence we must look to tbe Act conferring tbe jurisdiction to ascertain tbe nature and extent of tbe review contemplated by tbe Legislature.

Upon tbe filing of a petition for review, it is tbe duty of tbe judge, after notice to tbe department, “to take testimony and examine into tbe facts of tbe case, and to determine whether tbe petitioner is entitled to a license or is subject to suspension, cancellation, or revocation of license under tbe provisions of this article.” G. S. 20-25. This is more than a review as upon a-writ of certiorari. It is a rehearing de novo, and tbe judge is not bound by tbe findings of fact or tbe conclusions of- law made by tbe department. Else why “take testimony,” “examine into tbe facts,” and “determine” tbe question at issue?

Here tbe court below found that no warrant was issued against tbe petitioner, no bearing was bad, no verdict was pronounced, and tbe suspension was based upon misinformation. Furthermore, it found tbat petitioner in fact is not guilty. Tbe facts thus found fully support tbe judgment entered.

Tbe department filed no answer, and it does not satisfactorily appear on tbis record wbetber tbe petitioner sought and obtained a bearing by the department before filing bis petition for a bearing before tbe judge. Although no question in respect thereto is presented on tbis record, we deem it advisable to call attention to tbe fact provision for a bearing by tbe department, upon application of tbe aggrieved licensee whose license has been suspended or revoked by the department in the exercise of its discretionary power, is contained in tbe Act. G. S. 20-16 (b). Orderly procedure demands tbat tbe administrative remedies should be exhausted before resort is bad to tbe courts under G. S. 20-25. That tbis has been done should be made to appear in tbe petition for a bearing before tbe judge.

Tbe judgment below is

Affirmed.