(dissenting).
The majority opinion relies on our holding in State, Dep’t of Public Safety v. Mul-vihill, 303 Minn. 361, 368, 227 N.W.2d 813, 817-18 (1975) for the proposition that trial courts have discretion to revoke or not to revoke the driver’s license of a defendant convicted of driving while under the influence of alcohol. The majority notes that the legislature has not amended the statute in a manner inconsistent with the Mulvihill decision written in March of 1975.
I respectfully disagree on both grounds. All that Mulvihill held was that the Commissioner of Public Safety was justified in revoking the license of three drivers who refused to submit to chemical tests as provided by Minn.Stat. § 169.123, subd. 4 (1974). In observing by way of dictum that revocation under Minn.Stat. § 169.121, subd. 3 (1974) is “triggered by the outcome of [a] criminal proceeding,” we stated that under § 169.121 a license revocation “is automatically imposed as a criminal penalty upon conviction” (emphasis altered). We did not say that the court had discretion to revoke or not revoke but stated that revocation is mandatory.
Nor can I agree that the legislature has not amended the statute in a manner inconsistent with what the majority reads into Mulvihill. In April 1976 by adopting 1976 Minn.Laws ch. 341, § 1, the legislature amended Minn.Stat. § 169.121, subd. 3 (1976), by adding this language (emphasis added):
Any person whose license has been revoked pursuant to section 169.123 is not subject to the mandatory revocation provisions of this subdivision.
As to licenses revoked under Minn.Stat. § 169.123 (1974) with which our court was dealing in Mulvihill, the legislature, by this amendment, acquiesced in Mulvihill with respect to the implied consent law. However, as to revocation for convictions under Minn.Stat. § 169.121 (1978), the' amendment expressly states that revocation is “mandatory.”
A second significant amendment occurred in April 1978 when the legislature adopted 1978 Minn.Laws ch. 727, § 2. That amendment introduced this language as Minn. Stat. § 169.121, subd. 7 (1978) (emphasis added):
On behalf of the commissioner of public safety a court shall serve notice of revocation on a person convicted of a violation of this section. The court shall take the license or permit of the driver, if any, or obtain a sworn affidavit stating that the license or permit cannot be produced, and send it to the commissioner with a record of the conviction and issue a temporary license effective only for the period during which an appeal from the conviction may be taken. No person who is without driving privileges at the time shall be issued a temporary license and any temporary license issued shall bear the same restrictions and limitations as the driver’s license or permit for which it is exchanged.
The commissioner shall issue additional temporary licenses until the final determination of whether there shall be a revocation under this section.
In my opinion the legislature could not have expressed in clearer language its intent to reaffirm the commissioner’s function of revoking drivers’ licenses following convictions for driving under the influence of alcohol. It not only explicitly provided that the court was acting on behalf of the commissioner but went on to say “the court shall take the license or permit of the driver * * * and send it to the commissioner * * (Emphasis added.)
The statutes are elsewhere replete with expressions of legislative intent to make *625revocation mandatory for convictions under Minn.Stat. § 169.121 (1978). Subdivision 3 of that statute states that the driver’s license of a first offender “shall be revoked for not less than 30 days” and for more serious offenses it “shall be revoked for not less than 90 days.” (Emphasis added.)
Under Minn.Stat. § 171.17 (1978) the legislature has provided “The department shall forthwith revoke the license of any driver upon receiving a record of such driver’s conviction” for operating under the influence of intoxicating liquor. .(Emphasis added.)
Under Minn.Stat. § 171.16, subd. 2 (1978) the court’s authority is limited to simply making a recommendation by this language (emphasis added):
Commissioner shall suspend. The court may recommend the suspension of the driver’s license of the person so convicted, and the commissioner shall suspend such license as recommended by the court, without a hearing as provided herein.
I respectfully submit that the intent of the legislature to make revocation an automatic administrative function could not be spelled out in more unequivocal language and I would therefore grant the writ.
PETERSON, Justice (dissenting).I join in the dissent of Mr. Justice Otis.