IN BANC. DENIED. *Page 131 12. The petition for rehearing presents no issue which has not already received the consideration of the court. It graphically calls to our attention the hardships and loss to which the petitioner will be subjected if his present permit is revoked, and if he cannot secure a new one. We had thought that our former opinion made it clear that we were not passing upon the petitioner's right to the issuance of a new permit. That question could only arise if, in the future, he should apply for a new permit. As we indicated, the findings of the Commissioner were supported by cogent, competent, material and substantial evidence. He therefore had statutory authority to revoke the permit. The two statutory provisions which authorize the revocation of permits are set out in our original opinion. Both of them vest discretion in the Commissioner. Under O.C.L.A., § 115-509 (5) and under the similar provisions of Laws, 1947, ch. 467, section 9, par. 5, the Commissioner may either revoke or suspend the permit if, after notice and hearing he finds that the permittee has violated the provisions of the paragraph in question. O.C.L.A., § 115-515 (b) (reenacted in Laws, 1947, ch. 467, section 15, 2.) also provides that in the event of repeated violations of the act, the Commissioner may either suspend or cancel the permit. We found no evidence of abuse of discretion in the action of the Commissioner in revoking the permit, and therefore affirmed the order.
The petitioner expresses apprehension lest in the future he be denied a new permit to operate because the statute provides that:
"No permit shall be granted to any person if the commissioner finds that he is not capable of *Page 132 conducting the transportation service contemplated and in compliance with the law and rules and regulations of the commissioner or who has been an habitual or intentional violator thereof. * * *" O.C.L.A., § 115-509. (Italics ours).
If in the future, the petitioner is denied a permit, it will not be because such denial, if any, is rendered necessary by the decision of this court. We upheld the order of the Commissioner because, after notice and hearing, the Commissioner found that the petitioner was operating a vehicle in a class other than that for which his permit was issued. O.C.L.A., § 115-509 (5). We upheld the Commissioner's order because the permittee had repeatedly violated the act. O.C.L.A., § 115-515 (2) (b). We did not hold that the petitioner has been an habitual or intentional violator of the act within the meaning of O.C.L.A., § 115-509 (1), which section prohibits issuance of permits to persons who have been habitual or intentional violators. In the original opinion we stated, "we find it unnecessary to determine whether or not the plaintiff intentionally violated any order of the commissioner", and we made no finding that he had intentionally violated the statute. The Vehicle Code provides that the violation of the act shall constitute a misdemeanor. In view of this fact and of the wording of the section which prohibits the issuance of a permit to an habitual or intentional violator, we think that an "intentional" violation means more than the mere intentional doing of an act which the court finds to be in violation of the statute. It means the doing of an act, intending thereby to violate the statute. It implies an intent to act illegally.
Evidence was taken in the circuit court concerning the charge of intentional violation, but since we found *Page 133 that the action of the Commissioner should be affirmed, whether or not the violation was intentional, we refrained from passing upon that question. Nor can we say that the repeated violation of an act of necessity renders the actor an habitual violator within the meaning of the statute. Assuming therefore, that the Commissioner abides by his order of revocation, it follows that this court has not determined the issues upon which would depend the petitioner's right to secure a new permit. If and when application for a new permit within the terms of the statute is made, it will be for the Commissioner to determine in the first instance whether or not the statute prohibits the issuance of a permit, that is to say, whether or not the petitioner has been an habitual or intentional violator of the act.
Whether or not the Commissioner would have the right, and if so, would deem it proper to modify the order of revocation by providing for a suspension rather than a revocation of the permit, is a question which is not before us, and concerning which we express no opinion. If the Commissioner has such power, and should in his sound discretion, exercise it, then so far as the italicized portion of O.C.L.A., § 115-509 is concerned, no question would arise with reference to the right of the plaintiff to secure a new permit. His old permit, although suspended, would remain valid until revoked. O.C.L.A., § 115-515.
The foregoing comments should make clear the meaning of the court when in its original opinion it said, "If in the future, plaintiff should apply for a new permit, other questions may arise, but they need not be anticipated here."
The petition for rehearing is denied. *Page 134