State v. Kouni

Appellant, not denying or challenging the facts, appeals herein solely on the asserted unconstitutionality of section 30 (a) 2, chapter 88, Session Laws, 1935, as violative of the provisions of article 1, section 1, article 1, section 13, article 2, section 1, and article 5, section 13 of the Idaho constitution, and section 1 of the Fourteenth Amendment to the constitution of the United States, on substantially four grounds which we will hereafter consider. The majority opinion apparently holding the statute unconstitutional because, as interpreted therein, depriving appellant of his property without due process.

There can be no question that the purpose of the statute under consideration, in its entirety, was an attempt to bring about greater safety in the driving of automobiles, and likewise we must presume the legislature intended to pass a constitutional statute and every legitimate intendment should be resolved in favor of its constitutionality. (Noble v.Bragaw, 12 Idaho 265, 85 P. 903; In re Gale, 14 Idaho 761,95 P. 679; *Page 500 Grice v. Clearwater Timber Co., 20 Idaho 70, 117 P. 112;Continental etc. Inv. Co. v. Hattabaugh, 21 Idaho 285,121 P. 81; Northern Pac. Ry. Co. v. Gifford, 25 Idaho 196,136 P. 1131; State v. Morris, 28 Idaho 599, 155 P. 296, L.R.A. 1916D, 573; Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; Sanderson v. Salmon River Canal Co., Ltd., 45 Idaho 244,263 P. 32; Chambers v. McCollum, 47 Idaho 74,272 P. 707; Williams v. Baldridge, 48 Idaho 618, 284 P. 203;Bannock County v. Citizens B. T. Co., 53 Idaho 159,22 P.2d 674; City of Idaho Falls v. Pfost, 53 Idaho 247,23 P.2d 245; Hall v. Johnson, 53 Idaho 667, 27 P.2d 674; J. C.Penney Co. v. Diefendorf, 54 Idaho 374, 32 P.2d 784;Garrett Transfer etc. Co. v. Pfost, 54 Idaho 576,33 P.2d 743; Johnson v. Diefendorf, 56 Idaho 620, 57 P.2d 1068.)

The latest decisions are unanimously to the effect that the driving of an automobile upon the highways is not a property right but a privilege which may be denied or regulated under the police power with the view to control the accidents which are increasingly taking such a toll of life and property. (Commonwealth v. Funk, 323 Pa. 390, 186 A. 65, at 67; Watsonv. State Division of Motor Vehicles, 212 Cal. 279,298 P. 481, at 482-3.) Appellant asserts the use of an automobile is essential in his business and his means of livelihood and that as a valuable property right it may not thus be taken from him. Human lives and safety of persons are likewise valuable and certainly in this enlightened age and generation property rights should not be placed above human rights.

". . . . The right to operate them (automobiles) in public places is not a natural and unrestricted right, but a privilege subject to reasonable regulation, under the police power, in the interest of the public safety and welfare. Hendrick v.Maryland, 235 U.S. 610, 622, 35 Sup. Ct. 140, 50 L. ed. 385. . . . ."

(Watson v. State Division of Motor Vehicles, supra; Ex parteVon Perhacs, 190 Cal. 364, 212 P. 689; Sleeper v. Woodmansee,11 Cal.App. (2d) 595, 54 P.2d 519; People v. Cohen,128 Misc. 29, 217 N.Y. Supp. 726; Ruggles v. State, 120 Md. 553,87 A. 1080; Garford Trucking v. Hoffman, *Page 501 114 N.J.L. 522, 177 A. 882, at 887, following LaPlante v.State Board of Public Roads, 47 R.I. 258, 131 A. 641, and Huddy on Automobiles, 7th ed., p. 81; Burgess v. City ofBrockton, 235 Mass. 95, 126 N.E. 456; State v. Price, (Ariz.)63 P.2d 653, 108 A.L.R. 1156; 5 Am. Jur. 593, sec. 157; 1-2 Huddy Cyc., Automobiles, p. 481.) While appellant cites authorities to the effect that automobiles are not per se dangerous, when in use, by reason of the human element involved in their operation they are potentially homicidal as recognized by the decisions, 42 C. J. 615, and proved by the facts. The Traveler's Insurance Company of Hartford Connecticut shows the increase in deaths from automobile accidents during the last five years to be: Deaths in 1932, 29,196; 1933, 31,078; 1934, 35,769; 1935, 36,100; with 864,800 accidents in 1936, 36,800 killed, and 967,840 people injured, in 1936. (1937 The World Almanac, page 322.)

"The ever-increasing use of the highways by those operating motor vehicles is attended by serious dangers of bodily harm and death. In an effort to minimize this menace to public safety, a state as an exercise of the police power may prescribe uniform regulation covering the ownership and operation of these vehicles. (cases) One of the common requirements is that of registration of motor vehicles, and there cannot be the slightest doubt of the validity of this requirement. Hendrick v. Maryland, supra. So too as to the requirement of a license for chauffeurs and operators. . . . ." (Munz v. Harnett, 6 Fed. Supp. 158, at 159-160.)

(In re Opinion of the Justices, 251 Mass. 569, 147 N.E. 681;Rutherford v. City of Nashville, 168 Tenn. 499,79 S.W.2d 581, at 587; Garford Trucking v. Hoffman, supra.)

Appellant's first ground of attack is that under section 30 (a) 2, supra, a driver's license may be suspended when he is involved in an accident regardless of whether he was at fault or to blame, hence penalized because of an innocent act, because the legislature left out of our statute the words "by reckless or unlawful operation and caused or contributed to an accident" contained in the Uniform Act from which our statute was apparently taken. *Page 502

The majority, without defining or analyzing the word "involved," or what the legislature intended thereby, predicates its holding of unconstitutionality on appellant's bare and unsupported contention.

While the court may not amend a statute or supply words, it will if possible give a meaning to words used by the legislature which will not lead to a ridiculous or absurd result, or contrary to the evident intention and purpose of the legislature, and if words are capable of being defined so as to accomplish the evident legislative purpose, the court will do so. (In re Segregation of School Dist. No. 58, 34 Idaho 222,200 P. 138; In re Moore, 38 Idaho 506, 224 P. 662; Hartman v.Meier, 39 Idaho 261, 227 P. 25; Intermountain Title Guar. Co.v. Egbert, 52 Idaho 402, 16 P.2d 390.) The cardinal principle of statutory construction is to save and not to destroy. (National Labor Rel. Board v. Jones Laughlin S.Corp., 301 U.S. 1, 57 Sup. Ct. 615, 81 L. ed. 893, 108 A.L.R. 1352.)

The words "involve" and "involved" have been defined as follows: "To envelop; surround; to draw into an entanglement or complication; to include or contain; implicate." (Webster's New International Dictionary.) "Involve," "To envelop or (in later use, more usually) entangle (a person) in trouble, difficulties, perplexity etc., to embarass; to engage in circumstances from which it is difficult to withdraw; to implicate in a charge or crime; to cause or prove a person to be concerned in it. "Involved": "of persons, their actions etc. not straightforward and open, underhand, covert, crooked." (The New English Dictionary, Oxford, pages 465, 466) "Involve is a stronger word than implicate, denoting more complete entanglement." (Standard dictionary).

From these definitions it is clearly evident the legislature intended the word "involved" to carry with it the meaning and element of causative action and at least, though slight, wrongdoing or negligence. The legislature had the right to go further than the Uniform Law and grades of negligence are recognized, for instance liability to a guest rests on gross negligence, I. C. A., sec. 48-901; there is ordinary negligence, and criminal negligence, I. C. A., secs. 17-101, 17-114.In *Page 503 other words, the legislature desired to have the Department of Law Enforcement given the utmost power possible to revoke a license of a driver who has to the slightest extent caused an accident, thus the statute does not leave uncontrolled, without guide or limitation, the action of the Commissioner in determining whose license might be revoked. We find support for this thought in Butler v. Jersey Coast News Co., 109 N.J.L. 255,160 A. 659.

Powers of numerous administrative and executive officials and boards exercising so-called quasi-judicial functions in determining facts and applying standards have been upheld under no more definite or certain legislative limitations or boundaries than contained in the act under consideration1, and also where the hearings are before the board of commission on charges initiated by themselves. (In re Probasco, 269 Mich. 453,257 N.W. 861; Commonwealth v. Funk, supra; Tryon v.Willbank, 234 A.D. 335, 255 N.Y. Supp. 27; Capitol TaxicabCo. v. Cermak, 60 Fed. (2d) 608; Klein v. City of Cincinnati,33 Ohio App. 137, 168 N.E. 549; Garford Trucking v. Hoffman,supra; Commonwealth v. Funk, supra; Keck v. Superior Court,109 Cal. App. 251, 293 P. 128; Sleeper v. Woodmansee, supra; 1-2 Huddy, Cyc. of Automobiles, p. 481, sec. 248; 1 Blashfield, p. 394, sec. 480; Berry Automobiles, vol. 2, p. 253, sec. 2.259.)

Tender solicitude for the claimed property rights of a driver of an automobile so he may be allowed its use, regarded as necessary in his business, though his recklessness and negligence result in causing wanton death, should not outweigh the well established doctrine heretofore announced by this *Page 504 court that courts will not anticipate that an executive officer will give to an act a construction obnoxious to the constitution. (Garrett Transfer etc. Co. v. Pfost, 54 Idaho 576,33 P.2d 743; Utah Power Light Co. v. Pfost,286 U.S. 165, 52 Sup. Ct. 548, 76 L. ed. 1088, 1939.)

The majority opinion does not directly say there has been any abuse of the right of revocation herein but bases its conclusion of unconstitutionality on a straw man of asserted possible mythical illegal action by the commissioner. If the commissioner should so act illegally the injured defendant would have ample means of protection, as this proceeding sufficiently demonstrates.

The police power is broad and must be given an interpretation in keeping with changing times and conditions, which rule this court has from its inception adhered to with progressive foresight. (Bacon v. Walker, 204 U.S. 311, 27 Sup. Ct. 289,51 L. ed. 499, affirming Walker v. Bacon, 11 Idaho 127,81 P. 155, 114 Am. St. 262; Bown v. Walling, 204 U.S. 320,27 Sup. Ct. 292, 51 L. ed. 503, affirming Walling v. Bown, 9 Idaho 740,76 P. 318, 2 Ann. Cas. 720; Jungst v. Baldridge,51 Fed. (2d) 379; Detweiler v. Welch, 46 Fed. (2d) 71, affirmed 46 Fed. (2d) 75, 73 A.L.R. 1440; Alliance Trust Co. v. Hall, 5 Fed. Supp. 285; Mullen Co. v. Moseley, 13 Idaho 457, 90 P. 986, 121 Am. St. 277, 13 Ann. Cas. 450, 12 L.R.A., N.S., 394;State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L.R.A., N.S., 1259; Ex parte Jacobs, 13 Idaho 720, 92 P. 1003; Idaho Power Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083, Ann. Cas. 1916E, 282; Ex parte Hinkle, 33 Idaho 605, 196 P. 1035;State v. Armstrong, 38 Idaho 493, 225 P. 491, 33 A.L.R. 835;Chambers v. McCollum, supra; Straughan v. City of Coeurd'Alene, 53 Idaho 494, 24 P.2d 321.)

Statutes authorizing the suspension of licenses of drivers of automobiles who have failed to satisfy adverse judgments for damages have been sustained against criticism similar to appellant's. True that point, as such, is not before us for consideration but it shows what the courts have considered as having a bearing on what regulations may have a compelling influence on persons to drive carefully and their reasoning *Page 505 is pertinent herein; In re Opinion of the Justices, supra; Munzv. Harnett, supra; Commonwealth v. Funk, supra; GarfordTrucking v. Hoffman, supra; Watson v. State Division of MotorVehicles, supra; State v. Price, supra. Ex parte Lindley,108 Cal. App. 258, 291 P. 638, cited by appellant as contra has been impliedly overruled in Watson v. State Division of MotorVehicles, supra, and expressly following the Watson case inSheehan v. Division of Motor Vehicles, 140 Cal. App. 200,35 P.2d 359.

The legislature had the right to consider and exert the coercive curbing influence on a driver in declaring that if he were involved in a negligent or reckless manner in the slightest degree in an automobile accident causing death or serious injury to persons or property, his license would be suspended. One of the curses of regulatory safety measures has been loophole evasion and procrastination which the legislature in this act attempted to abate.

Appellant however asserts the statute allows and the commissioner has exercised arbitrary discrimination under an unlawful delegation of judicial authority. If a license is to be revoked for any cause, initially someone must act. This is an executive or administrative act not judicial in the true sense and similar delegations have been sustained on this theory, not only in this state but quite universally. (State v. Johnson, 50 Idaho 363, 296 P. 588; Chambers v.McCollum, supra; Idaho Power Light Co. v. Blomquist, supra;Speer v. Stephenson, 16 Idaho 707, 102 P. 365; Keck v.Superior Court, supra; People v. Harnett, 221 A.D. 487,224 N.Y. Supp. 97; Commonwealth v. Funk, supra; Sleeper v.Woodmansee, supra; Tryon v. Willbank, supra; Klein v. City ofCincinnati, supra; Capitol Taxicab Co. v. Cermak, supra;Garford Trucking v. Hoffman, supra, at 888:

". . . . The granting or revocation of a license by a state board similar to the one here in question was held by this court in People v. Apfelbaum, supra (251 Ill. 18, 95 N.E. 995), not to be the exercise of judicial power, as that term is understood in reference to the distribution of the powers of government. . . . . *Page 506

"Nor does the fact that the granting or revocation of a license, under the act, is committed to an administrative officer, who may be authorized to exercise his discretion in so doing, violate any constitutional guaranty. If for good cause the administrative official is satisfied that the license should be revoked, he may, upon proper proofs so do. . . . ."

Appellant contends the commissioner has not suspended the license of others when he should have and therefore it was erroneous for him to suspend appellant's license. This reasoning is a non sequitur: First, the facts are not shown to be the same; indeed the record shows they were substantially different. The courts have repeatedly exposed the fallacy of this proposition; because one jury acquits a person who should be convicted is no reason to discharge another who under similar or even identical circumstances in another action has been convicted. Verdicts acquitting one and convicting another where both are jointly charged, with the same evidence introduced as to both, have been sustained, State v. Jackett,45 Idaho 720, 264 P. 875; 15 C. J. 1104, sec. 2591, as is likewise true in civil cases. (Strickfaden v. GreencreekHighway Dist., 42 Idaho 738, at 767, 248 P. 456, 49 A.L.R. 1057; Gunnell v. Largilliere Co., 46 Idaho 551, at 559,269 P. 412; Judd v. Oregon Short Line R. R. Co., 55 Idaho 461, at 478,44 P.2d 291.) Secondly, that the commissioner should have proceeded against others, but has not done so, does not exculpate appellant. (Kootenai County v. Seven-Seven Co.,32 Idaho 301, 182 P. 529.)

While the suspension of a license is not a criminal proceeding, appellant asserts it is penal in nature and certainly a rule applicable in criminal proceedings is applicable herein. (Glass v. State Board of Public Roads,44 R.I. 54, 115 A. 244, at 245, 246; Klein v. City ofCincinnati, supra; Capitol Taxicab Co. v. Cermak, supra; Peoplev. Harnett, supra; Watson v. State Division of Motor Vehicles,supra.)

The commissioner testified suspension followed an adverse verdict of the coroner's jury. This does not make such action arbitrary or discriminatory; the essential question being of course, not whether the verdict of the coroner's jury was properly found or conclusive, but whether in the particular *Page 507 case and on review before the commissioner, to which everyone upon application is entitled, the showing of negligence, though slight, was sufficient to justify the suspension.

Aside from appellant's contention that the acquittal of the manslaughter charge absolved him from all blame, hereafter disposed of, and that the commissioner arbitrarily discriminated against him and in favor of others, untenable as shown above, he does not question the sufficiency of the showing before the commissioner authorizing his original order of suspension, hence it is unnecessary to further consider it.

Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604, largely relied upon by appellant has been followed as to what he contends are its pertinent points only in the dissent in In re Probasco, supra, at page 864, and the annotations in 71 A.L.R. 616, 108 A.L.R. 1162, show that it has not otherwise been followed.

Appellant also contends the acquittal in the manslaughter proceeding was an absolute and complete finding that he was not guilty of any wrongdoing, the basis of the proceeding herein. The majority rule is directly contrary as shown by the following authorities: Steele v. State Road Com., 116 W. Va. 227,179 S.E. 810; Commonwealth v. Funk, supra; notes, 31 A.L.R. 262; 57 A.L.R. 504; 80 A.L.R. 1145.

Appellant contends he has been denied due process because the commissioner is given power to suspend first without a hearing and that the second hearing is before one who assumes the dual role of prosecutor and judge, and hence is a biased tribunal, relying on Abrams v. Jones, 35 Idaho 532, 207 P. 724. This portion of the statute (section 30 (b) is taken verbatim from the Uniform Act which has been adopted by the states listed below.1 Not only has similar procedure been followed in this state in situations cited in note one on *Page 508 page 507 herein, but has been in effect approved in other courts construing this or similar statutes. (Tanguay v. StateBoard of Public Roads, 46 R.I. 134, 12.5 Atl. 293; People v.Noggle, 7 Cal.App. (2d) 14, 45 P.2d 430; In re Probasco,supra; Commonwealth v. Funk, supra; People v. Harnett, supra;People v. Stryker, 124 Misc. 1, 206 N.Y. Supp. 146.)

While the Abrams case, supra, is not referred to the point is referred to and in effect construed justifying the conclusion that appellant was not prejudiced by the hearing before the commissioner with later an opportunity for review before the probate court and such further legal action as might be taken:

"Petitioner insists that under the statutes involved herein a hearing before an impartial body is not provided for, and for that reason the statutes are in contravention of the foregoing constitutional provision and should not be upheld. Under the provisions of the acts here involved, the committee appointed to investigate can merely report its findings to the board, whereupon a trial committee may be appointed. Before both committees a full and complete hearing may be had, said committees acting in capacities similar to referees, reporting their findings and conclusions to the board, before which latter body a full and complete review is provided for, with a right of review of its findings, conclusions and recommendations in the supreme court, where a still further hearing is provided for." (In re Edwards, 45 Idaho 676,266 P. 665, at 689, 690.)

Since the Abrams case, supra, this court has approved a situation similar with the case at bar in Chambers v. McCollum,supra:

". . . . The legislature had delegated to the State Forestry authority to determine the facts in this regard, and while the act does not expressly provide for a hearing upon this question in any court of competent jurisdiction, a forest land owner is not deprived of access to the courts under the ordinary constitutional guaranties of due process, for the purpose of having determined the question of whether the protection, if furnished by him, is adequate and efficient, or equal in standard, efficiency and seasonal duration to that of *Page 509 those who, in compliance with the law and the regulations of the board, are, in good faith maintaining organized protection of their lands against fire in the same forest protective district. . . . ."

Court action is not necessary to give due process. (Chambers v. McCollum, supra; Stark v. McLaughlin, 45 Idaho 112,261 P. 244; Bell v. City of Moscow, 48 Idaho 65, at 68,279 P. 1095.)

Conceding that the review in the probate court is notjudicial process because the probate court, as such, does not have jurisdiction, due process is afforded by resort to special writ by the district court, or by injunction to restrain the enforcement of the statute as in Garrett Transfer etc. Co. v.Pfost, supra:

". . . . Furthermore, by using existing local machinery, the Legislature was attempting to provide a convenient method of hearing for the individual without the added expense to the state of setting up new boards or machinery." (In re Probasco,supra.)

See also: Bueneman v. City of Santa Barbara, 8 Cal. (2d) 405,65 P.2d 884, 109 A.L.R. 895; Bueneman v. City of SantaBarbara, (Cal.) 59 P.2d 998; People v. Harnett, supra;People v. Cohen, 128 Misc. 29, 217 N. Y. Supp. 726;Commonwealth v. Funk, supra; National Cab Co. v. Kunze,182 Minn. 152, 233 N.W. 838; Klein v. City of Cincinnati, supra;Capitol Taxicab Co. v. Cermak, supra.

The judgment should be affirmed.

Morgan, J., concurs in this dissent.

1 (Uniform Motor Vehicle Operators' and Chauffeurs' License Act, vol. 9, Uniform Laws Annotated, page 320; Colorado, Laws 1931, chap. 122, effective Jan. 1, 1932; Delaware, Laws 1929, chap. 10, arts. I and IV, effective April 8, 1929; Indiana, Laws 1929, chap. 162, effective July 1, 1929; Iowa, Laws 1931, chap. 114, effective Jan. 1, 1932; Kansas, Laws 1931, chap. 80, effective June 30, 1931, Michigan, Laws 1931, No. 91, effective May 1, 1931, Oregon, Laws 1931, chap. 264, effective July 1, 1931.)

1Public Utilities. Enforcement and tribunal. Appeal, I. C. A., secs. 59-501, 59-502, 59-503, 59-508, 59-523, 59-612, 59-615,59-701. Accountancy, I. C. A., sec. 53-201, subd. 5; Architects, I. C. A., sec. 53-405; Barbers, I. C. A., sec.53-615; Chiropodists, I. C. A., sec. 53-801; Civil Engineers, I. C. A., secs. 53-1003, 53-1011; Cosmeticians, I. C. A., sec. 53-1216; Real Estate Broker, I. C. A., sec. 53-2212, Commissioner's own motion; Farm Marketing, I. C. A., sec.22-704, investigate and decide; Farm Produce, I. C. A., sec. 22-1013; Nursery inspection, I. C. A., secs. 22-1501, 22-1502,22-1503; Bees, I. C. A., sec. 22-1905; Sheep, I. C. A., sec. 24-104; Soran v. McKelvey, 57 Idaho 483, 67 P.2d 906. *Page 510