dissenting: One of the defendant’s specifications of error was that the district court erred in overruling his motion for a directed verdict and for discharge at the close of the state’s case in chief. While it is with reluctance that I reach the conclusion the district court erred in the matter specified, I am of the opinion, for reasons hereafter stated, the motion should have been sustained and the defendant discharged.
The parties concede that the state was required to prove two essential elements of the crime charged: First, that the defendant *585was in fact operating a motor vehicle upon a public highway in Ness county; and second, that while so operating the motor vehicle his license to operate the same was suspended and revoked by the motor vehicle department. (G. S. 1961 Supp., Ch. 8, Art. 2.)
There appears to be no question as to the sufficiency of the evidence to establish the first element of the offense, but in proof of the second element the state relied solely upon exhibit No. 3, which was received in evidence over the repeated objection of the defendant. In my opinion, that evidence was irrelevant, incompetent and prejudicial, and wholly failed to establish the second element of the offense; hence, the district court was not warranted in submitting the case to the jury.
Exhibit No. 3, consisted of five separate pages, each on the letterhead or printed forms of the motor vehicle department. The first page was entitled “certificate,” executed by the superintendent of the motor vehicle department, in which he certified that the following attached photostatic copies of
“Letters of Revocation
“Abstracts of Convictions”
pertaining to the defendant were true and correct copies of the original documents on file in that department.
It is assumed that exhibit No. 3 was admitted in evidence pursuant to G. S. 1949, 60-2854, and G. S. 1961 Supp., 60-2854a (see also G. S. 1949, 67-224), however, it is noted that the superintendent’s certificate did not certify to the attached photostatic copy of “order OF SUSPENSION OF PRIVILEGES TO OPERATE MOTOR VEHICLE IN KANSAS” entered April 12,1960, and for that reason the instrument should not have been admitted in evidence. Moreover, all parts of the exhibit other than those certified to by the superintendent were likewise inadmissible (MacRae v. Piano Co., 64 Kan. 580, Syl. ¶ 2, 68 Pac. 54; State v. Hall, 187 Kan. 323, 325, 356 P. 2d 678; State v. Loyd, 187 Kan. 325, 326, 356 P. 2d 825.)
Page 2 of the exhibit was entitled “order of suspension of privileges to operate motor vehicle in Kansas and was an order entered by the superintendent on March 14, 1960, and approved by him on April 12, 1960, suspending the defendant’s privilege to operate a motor vehicle as a result of his conviction on March 14, 1960, in the city court of Ness City on a charge of driving while his license was suspended. That order suspended the defendant’s license from April 12, 1960, until September 30, 1961, or for a *586period of one year, five months, and eighteen days, pursuant to G. S. 1961 Supp., 8-256 and 8-262, and was in effect on June 17, 1961, the date the defendant was alleged to have committed the offense in question.
Page 3 of the exhibit was entitled “abstract of record of conviction,” and consisted of three paragraphs and the abstract of conviction. The first paragraph referred to G. S. 1949, 8-5,131, and recited that every justice of the peace or judge or clerk of a court shall within ten (10) days after the conviction or forfeiture of bail of a person charged with violation of the laws regulating traffic on highways, and the operation of vehicles thereon, or other provisions of the following section, or manslaughter or other felony in the commission of which a vehicle was used, shall immediately forward to the superintendent of the motor vehicle department, abstract of record of the person so convicted properly certified by such officer. The failure, refusal or neglect of any judicial officer to comply with any requirements of the act shall constitute a misconduct in office and shall be ground for removal therefrom. The second paragraph contained directions to the court in which a conviction was had to recover the operator s license from the person convicted of an offense requiring automatic suspension of license, for the purpose of forwarding the license, together with the abstract, to the superintendent for suspension. The third paragraph stated that a judicial officer cannot suspend a license, he can only recommend such action, and that the superintendent under the law is the only person who can suspend a license. Thereafter followed the abstract of the defendant’s conviction. It recited that he was charged in the city court of Ness City on March 2, 1960, with driving a motor vehicle while his license was suspended; that he entered a plea of guilty to that offense on March 14, 1960, and that on March 28, 1960, he was sentenced to the county jail for 30 days and fined one hundred dollars and costs. As will be noted, the abstract of conviction was the evidence upon which the superintendent acted in suspending the defendant’s license for one year, five months and eighteen days, effective April 12, 1960, as set forth on page 2 of the exhibit.
Page 4 of the exhibit was an order entered and approved by the superintendent on October 12, 1959, entitled, “order of revocation OF PRIVILEGES TO OPERATE MOTOR VEHICLE IN KANSAS” suspending the defendant’s privilege to operate a motor vehicle as a result of *587his conviction in the police court in Eureka, Kansas, for driving a motor vehicle while under the influence of intoxicating liquor. That order suspended the defendant’s license from September 30, 1959, for one year, or until September 30, 1960 (G. S. 1961 Supp., 8-256 [a]). As will be noted, that order was in effect when the defendant was convicted in the city court of Ness City, but it had expired on June 17, 1961, when the offense here in question was alleged to have been committed.
The record indicates that the superintendent suspended the defendant’s license for a six-months’ period commencing April 12, 1960, but he also used the order entered October 12, 1959, as a result of the defendant’s Eureka conviction, to extend the period of suspension of the defendant’s license for one year, that is, for six months plus one year, or until September 30, 1961, pursuant to G. S. 1961 Supp., 8-262 (b), which provides:
“The department upon receiving a record of the conviction of any person under this section upon a charge of driving a vehicle while the license of such person was suspended shall extend the period of such suspension for additional like period. . . .”
Page 5 of the exhibit was a letter written to the defendant at Ness City on October 12, 1959, advising him of his conviction in Eureka on September 30, 1959; that pursuant to the statute now cited as G. S. 1961 Supp., 8-254, his license was revoked and was not subject to renewal or restoration except in the form of an application for a new license, which would not be granted for at least one year from the date of revocation (September 30, 1959); that he was required to surrender the registration certificate and license tags of all vehicles registered in his name as the owner unless proof of financial responsibility was immediately filed, and conditions for compliance with proof of financial responsibility were outlined. It further recited that under no circumstances should he drive a motor vehicle until a new driver’s license had been issued and he had complied fully with the requirements showing proof of financial responsibility.
Time does not permit an extended review of our statutes relating to the suspension or revocation of an operator’s or chauffeur’s license. The two terms are defined in G. S. 1961 Supp., 8-234, and mean different things, but it is unnecessary here to differentiate between the two. Conviction of offenses described in G. S. 1961 Supp., 8-254, requires the motor vehicle department to forthwith *588revoke the license upon proof of the conviction. Section 8-255 authorizes the department to suspend the license of an operator or chauffeur without preliminary hearing upon a showing by its records or other evidence that the operator has committed an offense or has been convicted of the different types of offenses therein described. It further provides that upon suspending or revoking the license of any person the department shall immediately notify the licensee, in writing, and upon his request, shall afford him an opportunity for a hearing in the county of the licensee’s residence as early as practicable within 20 days after receipt of the request. The department may either rescind its order of suspension or, for good cause shown, may extend the suspension of the license, or revoke the same. Section 8-256 deals with the period of suspension or revocation, and section 8-259 gives the person whose license has been suspended or revoked by the department, except where the revocation was mandatory under section 8-254, the right to appeal to the district court in the county wherein he resides and to take testimony and examine the facts whether he is entitled to his license, or it is subject to suspension or revocation. (Lee v. State, 187 Kan. 566, 358 P. 2d 765.) Section 8-260 deals with the unlawful use of a license, and section 8-262, the one under which the defendant was here charged, makes it unlawful to drive while the license is suspended or revoked.
It is obvious from the foregoing sections that the only manner in which an operator’s or chauffeur’s license may be suspended or revoked is by an order of the motor vehicle department. Hence, the only instrument in exhibit 3 which was competent to prove the second element of the offense charged was the “order of suspension OF PRIVILEGES TO OPERATE MOTOR VEHICLE IN KANSAS” approved April 12, 1960, and, as we have seen, it was not certified to by the superintendent and was inadmissible under the statutes and our decisions heretofore referred to. It should have been excluded on the basis of the defendant’s objections.
The order of the superintendent of April 12, 1960, suspending the defendant’s license was authorized by law (G. S. 1961, 8-255), and in the absence of an appeal to the district court pursuant to G. S. 1961 Supp., 8-259, it became final and binding upon the defendant until it expired, and was not subject to collateral attack in a subsequent criminal action for his driving a motor vehicle during the period of suspension of his license. In my opinion, the *589“abstract of record of conviction” in Ness county on March 14, 1960, was irrelevant and prejudicial because it had served its purpose at the time of trial and was then immaterial. It was the evidence upon which the superintendent entered the order of April 12, 1960, suspending the defendant’s license for the 17 months-plus period, and should not have been included in the abstract nor admitted in evidence. Likewise, the “order of revocation of privileges to operate motor vehicle in Kansas” entered October 12, 1959, suspending the defendant’s license for one year from September 30, 1959, was immaterial. As previously indicated, that order had expired on the date here in question, although it formed the basis of the superintendent’s action on April 12, 1960, extending the period of suspension of the defendant’s license until September 30, 1961 (G. S. 1961 Supp., 8-262). Moreover, the letter of October 12, 1959, was highly prejudicial, immaterial and incompetent as to whether the defendant’s license had been suspended or revoked on June 17, 1961.
At most, this record discloses that someone in the motor vehicle department gathered up some papers, stapled them together, and prepared a certificate for the superintendent to sign, which was wholly inadequate and improper for admission in evidence. The plain simple facts are that the certificate needed to only include the “order of suspension of privileges to operate motor vehicle in Kansas” entered April 12, 1960.
Exhibit No. 3 was the only evidence tending to prove that the defendant’s license was suspended or revoked, and because of its irrelevancy, incompetency, defective certification and prejudicial nature it should not have been admitted. The state’s evidence failed to establish a prima facie case, and the defendant’s motion for a directed verdict should have been sustained. I would reverse the judgment with direction to discharge the defendant (G. S. 1949, 62-1716).