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District Court of Appeal, Second District, Division 2, California.


Civ. 16000.

Decided: December 16, 1947

Fred N. Howser, Atty. Gen., and Wilmer W. Morse, Deputy Atty. Gen., for appellants. Arthur C. Fisher, of Los Angeles, for respondent.

Section 306 of the Vehicle Code empowers the Department of Motor Vehicles to revoke an operator's license upon any of the grounds that authorize the refusal to issue a license. Section 269 provides that the department shall not issue an operator's license to any person ‘(e) When it appears by examination or other evidence that such person is unable to operate a motor vehicle upon a highway safely because of physical or mental defect or lack of skill.’

By an order dated January 2, 1946, the Director of Motor Vehicles revoked respondent's operator's license on the ground that he ‘is unable to operate a motor vehicle safely upon the highways because of physical or mental disability or lakc of skill as shown by examination or other evidence; and in paricular because he is subject to a condition causing momentary lapses of consciousness or control.’ In the same order demand was made on respondent to surrender his license (see sec. 311) and he was notified that a written demand on the director for a hearing might be made within 60 days. See sec. 315.

Respondent refused to surrender his license and on February 15, 1946, made written demand for a hearing before the director. He was advised that a hearing would be had and was again notified that he was required by law to surrender his license. He then filed this action for declaratory relief and for a judgment that he is entitled to the privilege of operating a motor vehicle on the highways of California until the department and its officials should determine by competent evidence produced at a hearing that his license should be revoked. Appellants filed a general demurrer to the complaint which was overruled. Electing to stand on their demurrer they refused to answer. Judgment was entered against them from which they have appealed.

Section 314 of the Vehicle Code provides that the department may conduct an investigation to determine whether the license of any person should be suspended and revoked, such investigation to be made upon receiving information ‘(6) That any ground exists for which a license might be refused’ and that whenever the department determines upon any such investigation that good cause exists therefor it may suspend or revoke the privilege of the person to operate a motor vehicle on a highway.

Upon revocation or suspension the operator shall surrender his license. (Sec. 311.) That this means an immediate surrender is made manifest by the legislative history of this and other sections. When the Vehicle Code was adopted (Stats.1935, ch. 27, p. 93) section 311 (p. 139) provided that whenever the department revoked or suspended a license it should be surrendered to the department. At the same time section 316 (p. 141) contained the provision that if no hearing was demanded or if after a hearing the director declared in favor of a suspension or revocation ‘the licensee must thereupon surrender the license.’ Sections 311 and 316 obviously conflicted and it remained uncertain whether the license should be surrendered immediately upon its suspension or revocation (sec. 311) o not until after the time in which to demand a hearing had expired or a hearing had been had. Sec. 316. In 1939 section 316 was amended by the deletion of the language that was in apparent conflict with section 311 (Stats.1939, ch. 662, pp. 2115, 2121), indicating the clear intent of the legislature that the surrender of the license should take place when revoked or suspended and should not await a hearing.

This is as it should be. An automobile is an instrument of danger to every person who uses the highways unless it is under the control of a competent operator. One who is unable to operate a motor vehicle safely because of physical or mental disability or who, as found by the director and charged against respondent in the instant case, is subject to ‘monetary lapses of consciousness or control,’ is a potential menace to the public and, unfortunate though it may be for him, he should not be permitted to operate an automobile where he may cause injury or death to others.

The due process clause of the Fourteenth Amendment does not prevent the states from exercising their legitimate police power. Pacific Gas & Electric Co. v. Police Court, 251 U.S. 22, 25, 40 S.Ct. 79, 64 L.Ed. 112, 117. The right to operate a motor vehicle on the public highways is not a natural right but is a privilege that is subject to reasonable regulation under the police power in the interest of public safety and welfare. Watson v. Division of Motor Vehicles, 212 Cal. 279, 283, 298 P. 481. The right to use the public highways for travel or transportation is not unrestricted. The legislature has plenary power over the highways, may impose the conditions under which the limited right of use may be exercised, and may regulate the manner and circumstances under which automobiles may be operated thereon. Commonwealth v. Funk, 323 P. 390, 186 A. 65, 67.

An operator's license does not confer a vested right, but bestows a mere privilege to drive a motor vehicle on the higways and may be revoked or suspended for the reasons and in the manner prescribed by the legislature. Sleeper v. Woodmansee, 11 Cal.App.2d 595, 599, 54 P.2d 519; People v. Cohen, 128 Misc. 29, 217 N.Y.S. 726, 728. Such privilege may be valuable but it is not a right and it is not property. Statutes that authorize the suspension or revocation of an operator's license without a previous hearing do not violate the due process clause. LaPlante v. State Board, 47 R.I. 258, 131 A. 641, 642; Commonwealth v. Cronin, 336 Pa. 469, 9 A.2d 408, 410; Heart v. Fletcher, 184 Misc. 659, 53 N.Y.S.2d 369, 373.

Since a license to drive a car is merely a privilege the suspension of the license does not deprive the licensee of property or of rights without due process of law. A licensee's privileges are no greater than the rights of business organizations that the legislature has authorized to be suspended when conditions warrant such action. When it appears to the Insurance Commissioner that any of the conditions enumerated in the statute exist he may, without notice and without order of the court, forthwith take possession of the business, books and records of an insurance company (Insurance Code, sec. 1013) and may require the assistance of the sheriff or police department in making the seizure (sec. 1014). Whenever the Superintendent of Banks deems it necessary for the conservation of the assets of a bank he may appoint a conservator who shall take possession of its books, recods and assets. Bank Act, sec. 135a; Stats.1913, ch. 104, pp. 136, 191; 1 Deering's Gen.Laws, 1944 Ed., Act of 652, p. 294. If the Building and Loan Commissioner shall find that a building and loan association's business is in an unsafe condition or is being conducted in an unsafe or injurious manner he may forthwith take possession of the association's business and assets. Building and Loan Act, sec. 13.11; Stats.1931, ch. 269, pp. 483, 539; 1 Deering's Gen.Laws, 1944 Ed., Act 986, p. 590. Such statutory provisions are a proper exercise of the police power of the state (Engel v. O'Malley, 219 U.S. 128, 136, 31 S.Ct. 190, 55 L.Ed. 128, 136; Noble State Bank v. Haskell, 219 U.S. 104, 111, 31 S.Ct. 186, 55 L.Ed. 112, 116, 32 L.R.A.,N.S., 106, Ann.Cas.1912A, 487) and are not in contravention of the constitutional inhibition upon the depriving of persons of property without due process of law. State Savings & Commercial Bank v. Anderson, 165 Cal. 437, 446, 132 P. 755, L.R.A.1915E, 675, affirmed 238 U.S. 611, 35 S.Ct. 792, 59 L.Ed. 1488; North American Building & Loan Ass'n v. Richardson, 6 Cal.2d 90, 101, 56 P.2d 1221; Schaake v. Dolley, 85 Kan. 598, 118 P. 80, 81, 37 L.R.A.,N.S., 877, Ann.Cas.1913A, 254.

An operator whose license has been revoked or suspended may demand a hearing before the director or his representative by making a demand therefor within 60 days after notice is given him that his license had been revoked or suspended. Sec. 315. After a review of the records, evidence and findings the director is required to render his decision sustaining, modifying or reversing the order of revocation or suspension. Sec. 316.

The procedure authorized by the statute provides due process even if the case were one involving a property right. A fair trial before an impartial tribunal satisfies the demands of due process. Under the provisions of the Vehicle Code the licensee is entitled to a hearing before the director (secs. 315, 316) but his decision is not a final determination of the issue. If the licensee is not content with the decision of the director he has the right to have the order reviewed by a court of competent jurisdiction. Sec. 317. The provisions of this section answer any contention that judicial power has been delegated to the director or that there is a possibility of any operator's license being taken from him by an arbitrary or unwarranted act of an administrative official. When an aggrieved person is given the right to resort to the courts and to have the action of the administrative officer there reviewed he is not denied due process. Heart v. Fletcher, 184 Misc. 659, 53 N.Y.S.2d 369, 374; Commonwealth v. Funk, 323 Pa. 390, 186 A. 65, 68; La Forest v. Board of Com'rs., 67 App.D.C. 396, 92 F.2d 547, 548.

Section 314 of the Vehicle Code does not, as contended by respondent, contemplate notice to a holder of an operator's license and a hearing before the license may be revoked or suspended. It provides in subdivision (a) of that section that the department may conduct an investigation for the purpose of determining whether the license should be revoked or suspend upon receiving information or upon a showing by its records that certain facts exist; in subdivision (b) that he may require the reexamination of the licensee, shall give 10 days' notice of the time and place of the reexamination, and may peremptorily suspend the license in the event the licensee fails to submit to reexamination; in subdivision (c) that whenever good cause exists the privilege of operating a motor vehicle upon a highway may be suspended, but the order of suspension shall not become effective until 10 days after giving notice of the suspension to the person affected. Nowhere is a hearing required or notice to the licensee made a prerequisite to the investigation provided for in subdivision (a) of section 314 or to the revocation or suspension of a license for any of the causes enumerated in that subdivision.

Since respondent's license granted a privilege and not a property right the cases of Hogg v. Real Estate Com'r, 54 Cal.App.2d 712, 129 P.2d 709, Hall v. Scudder, 74 Cal.App.2d 433, 168 P.2d 990, and Covert v. State Board of Equalization, 29 Cal.2d 125, 173 P.2d 545, relied on by respondent, have no application to this case.

Respondent contends that section 314 authorizes the director to act arbitrarily and to revoke an operator's license without any indication of the nature or character of the information on which his order is based. On the contrary, that section does not contemplate or permit arbitrary action. It authorizes an investigation when the department has received information concerning any one or more of six items enumerated therein and a reexamination of the licensee. A license may be suspended or revoked when it is determined from such investigation or reexamination that good cause exists therefor.

Discretion must be exercised by the department in proceeding pursuant to section 314 and a standard for its actions is fixed by the statute. It will be assumed that the authority granted will be exercised with care and caution. If a statute requires an administrative officer to determine the existence or nonexistence of necessary facts before making a decision it does not collide with the due process clause nor vest uncontrolled discretion. Under such a statute the officer may not act arbitrarily. People v. Globe Grain & Milling Co., 211 Cal. 121, 126, 294 P. 3. The standards set up by statute for the guidance of an administrative officer in making decisions, even though general in terms, are not necessarily objectionable because of uncertainty. Butterworth v. Boyd, 12 Cal.2d 140, 149, 82 P.2d 434, 126 A.L.R. 838; Riley v. Chambers, 181 Cal. 589, 595, 185 P. 855, 8 A.L.R. 418. It is presumed that the officials will carry out their duties in the administration of the statute with justice and with discrimination. In re Porterfield, 63 Cal.App.2d 518, 528, 147 P.2d 15. The courts are always open for the correction of unjust or arbitrary official acts.

Respondents' reliance on People v. Noggle, 7 Cal.App.2d 14, 45 P.2d 430, is misplaced. He cites it as authority that a hearing must be had before a licensee may be deprived of his license. The defendant in that case was notified that his license had been revoked on information that he was subject to spells causing loss of consciousness. At that time the statute did not authorize the officials of the department to revoke a license for that reason except upon receiving a verified complaint stating that the licensee was afflicted with a mental or physical infirmity that would constitute ground for refusal of a license. The chief of the division was given power to determine the sufficiency of the complaint and to fix a time for hearing. No such requirement appears in the present law. Section 314 of the Vehicle Code authorizes the department to make its own investigation without a previous complaint and to act on the facts thereby ascertained. For the reasons hereinbefore stated there is nothing unreasonable or oppressive in this provision.

The judgment is reversed with directions to sustain the demurrer to the complaint without leave to amend and to enter judgment in favor of defendants.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.

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