(dissenting) :
On a plea of nolo contendere, defendant was convicted of driving a motor vehicle while intoxicated.
§ 68, Title 36, Code 1940, provides that the director of public safety “shall forthwith revoke the license” of any driver upon receiving a record of such driver’s conviction of driving a motor vehicle while intoxicated. § 68 imposes a mandatory duty on the director. State v. Savage, 34 Ala.App. 633, 636, 42 So.2d 695. In compliance with the statute, the director revoked defendant’s driver’s license.
Defendant filed in the circuit court a petition for mandamus to compel the director to rescind the revocation. The circuit court denied relief and defendant appeals.
Defendant argues that because, under the doctrine of State v. Thrower, 272 Ala. 344, 131 So.2d 420, a plea of nolo con-tendere is not a plea of guilty but is in the nature of a tacit confession and is limited to the particular case and only that case and has no effect outside of that case, defendant’s conviction under such a plea ought not to have the effect of revoking his driver’s license. Defendant says that to revoke his license, because of such conviction, is to give the conviction effect outside the case in which the plea was made.
*97One answer to defendant’s argument is that the plea here, or the conviction, is not being given effect outside the case in which the plea was entered. The plea is being given effect in the same case. In a case identical with this one as to effect of such a plea, the Supreme Court of North Carolina said:
“The respondent revoked the operator’s license of petitioner under the mandatory provisions of G.S.N.C. 20-17- — he had no discretion. Such mandatory revocation by the Department of Motor Vehicles was as much the performance of a ministerial duty in the petitioner’s case in Iredell County as the Clerk of the Superior Court in that county entering the judgment of the court in the case in the Minutes of the Court. Like the Clerk, the Department of Motor Vehicles did a mechanical act for the purposes of the case in that particular case. The fact that the revocation took place in a central agency in Raleigh, as prescribed by Act of the General Assembly, makes no difference. The legislative purpose and intent is clear that in every case of a conviction — and a plea of nolo con-tendere is equivalent to a conviction by a jury for the purposes of that case — of driving a motor vehicle while under the influence of intoxicating liquor the driver shall be punished, and shall be prevented from operating motor vehicles upon the highways to the hazard of other citizens. The General Assembly meticulously specified that the trial court shall take up the defendant’s license in court, and forward it to the Department. It is a continuous transaction in the same case. ...” Fox v. Scheidt, 241 N.C. 31, 36, 84 S.E.2d 259, 263.
It is said that a plea of nolo contendere cannot be interposed in Alabama, (1) because the appellate courts of this state have never previously held that such plea may be interposed, and (2) because of our statutory provisions which relate to pleading in criminal cases
It is true that the court said in Crawford v. State, 112 Ala. 1, 17, 21 So. 214, 218, that oral pleas, except the plea of guilty or not guilty, delivered in open court, are unknown in our practice. This is not, however, to say that any other oral plea is forbidden, merely because such other plea was unknown to, or not in the mind of, the writer at the time. Not guilty by reason of insanity, is at least one other plea, commonly made orally, In open court. Moreover, the statement in Crawford was made in considering the propriety of the trial court’s action in refusing to suspend the trial to allow defendant’s counsel to prepare a plea alleging that the grand jury was not properly drawn, and in refusing to entertain an oral plea alleging such irregularity; all in view of the fact that defendant, on a previous day of the term, had been arraigned and had pleaded not guilty.
It is admitted that the plea of nolo con-tendere is a plea sufiEcient at common law. See 152 A.L.R.2d 254 for history of the plea. The availability of the plea appears to have been recognized in Mississippi, although of infrequent use in that state, Chester v. State, 107 Miss. 459, 65 So. 510; and, in a prosecution for activities in connection with obscene literature, it was held proper for the court to enter judgment upon a plea of noló contendere. Williams v. State, 130 Miss. 827, 94 So. 882.
§ 3, Title 1, Code 1940, provides that the common law, not inconsistent with the constitution, laws, and institutions of this state shall, together with such institutions and laws, be the rule of decisions and continue in force, except as repealed or altered by the legislature.
The policy of this statute is expressed by the oft repeated rule that statutes in derogation of the common law must be strictly construed. The reason for this rule has been stated as follows:
*98“ . . . ‘With all the gross imperfection of the common law, it did contain certain grand principles, and these principles had been worked out into many practical rules both of primary right and of procedure, which protected personal rights — rights of property, of life, of liberty, of body and limb— against the encroachment both of government and of private individuals. This was the great glory of the common law. Any statutes which should take away, change, or diminish these rights, should be strictly . construed.’ This rule of construction is necessary, because such statutes ‘oppose the overwhelming power of the government to the public power of resistance of the individual, and it is the duty of courts under such circumstances to guard the individual as far as is just and legal.’ . . Crowder v. Fletcher & Co., 80 Ala. 219, 222.
It is said that the plea should not be allowed because there has been found no decision of the appellate courts of this state allowing the plea. With equal truth, it can be said that no decision of such courts has been found not allowing the plea. If § 3 of Title 1 is to be given the effect of its language, the burden of showing repeal of the common law ought to rest on him who asserts that the common law has been repealed. No decision of this court is cited where the court holds that the common law has been repealed so that the plea of nolo contendere may not be used in Alabama.
It does not appear that § 288, Title 15, Code 1940, has changed the common law with respect to this plea. This statute recites in pertinent part as follows:
“The following forms of pleas, replications, rejoinders, and demurrers are sufficient in all cases in which they are applicable; but they are not exclusive; any other form sufficient at common law, or under the statutes, or any analogous or kindred pleadings where no form is provided in this Code, may be used: ”
If nolo contendere be a form of plea sufficient at common law, and “any other form sufficient at common law” may be used, it would seem to follow that the plea of nolo contendere may be used in Alabama. Where neither decision nor statute expressly forbids use of the plea, to hold that it cannot be used is to repeal the common law by implication, contrary to the rule that repeal by implication is not favored. It might reasonably be argued that this is repeal by judicial fiat.
Under these views, defendant’s plea of nolo contendere, in the instant case, was a plea sufficient to sustain the judgment of guilt rendered against him; the revocation of his license based on such judgment gave effect to the plea and conviction in the same case and not outside that case; and the judgment appealed from is due to be affirmed. For these reasons, I dissent.