#### In re REVOCATION OF LICENSE TO OPERATE A MOTOR VEHICLE OF WILBUR ANDERSON WRIGHT.

(Filed 10 December, 1947.)

1. Automobiles § 34a—

Upon a receipt of notification from the highway department of another state that a resident of this State had there been convicted of drunken driving, the Department of Motor Vehicles has the right -to suspend the driving license of such person. G. S., 20-16 (7) ; G. S., 20-17 (2) ; G. S., 20-23.

2. Automobiles § 34b—

Upon the filing of a petition for review by a person whose license to drive an automobile has been suspended or revoked by the Department of Motor Vehicles, the hearing in the Superior Court is de novo, and the Superior Court is not bound by the findings of fact or the conclusions of law made by the Department. G. S., 20-25.

3. Same—

Petitioner was arrested in South Carolina charged with operating a motor vehicle while under the influence of intoxicants. He gave bond for appearance, but no warrant was served on him, no trial had, and his bond *302forfeited. His license was suspended by the Department of Motor Vehicles upon information of the Highway Department of South Carolina that he had been found guilty of driving while intoxicated. Upon review the Superior Court found, in addition, that the suspension was based upon misinformation and further that petitioner in fact is not guilty. Held,: The findings support the court’s order directing the respondent to cancel the suspension and to restore license to petitioner.

4. Same—

The statute, G. S. 20-16 (b), provides for a hearing by the Department of Motor Vehicles upon application of a licensee whose license has been suspended, and this procedure should be followed and should be made to appear in the petition before review by the Superior Court.

Appeai, by respondent Department of Motor Vehicles from Burney, J., in Chambers at Wilmington, N. 0., 30 August 1947, New- Hanoveh.

Affirmed.

Petition under Gr. S. 20-25 for review of an order of the Department of Motor Vehicles revoking petitioner’s automobile driver’s license.

On 10 April 1947 petitioner, while operating a motor vehicle in the State of South Carolina, was involved in a collision with another vehicle. He was arrested and charged with the offense of operating a motor vehicle on the highways of South Carolina while under the influence of intoxicants. . He gave bond for his appearance at a hearing set for the next day. No warrant was served on him. He avers, and the court below found, that he was not advised of the day of the hearing other than as stated on a paper handed him when he gave bond, and which he took to be a receipt for his money. Being injured in the collision, he took' a bus and returned to his home at Tabor City. He did not attend the hearing and his -bond was forfeited. There was no trial and defendant has never been found guilty of operating a motor vehicle on the public highways of South Carolina while under the influence of intoxicants.

’..On 17 April 1947 the Director of the Motor Vehicle Division of the State Highway Department of South Carolina advised respondent in part’ as follows:

“The records of the Department reveal that on April 10, 1947 a resident of your State, whose name and address is shown below, was apprehended on a charge of Driving Intoxicated, Date of hearing April 11, 1947, Disposition Guilty, Judicial Officer Mag. Smart, Conway, S. C.” A copy thereof was mailed to petitioner.

' Upon'receipt of said notice the Department of Motor Vehicles, acting under authority conferred by Gr. S. 20-23, suspended the driving license of petitioner and on 24 July gave him notice thereof. The petitioner, within 30 days thereafter, filed- this petition for review. The respondent filed no answer.

*303When tbe petition came on to be beard in tbe court below, tbe court found'tbe facts in detail, including many not material on tbe question bere presented for decision. It concluded tbat altbougb tbe respondent acted in good faitb, its order was based on misinformation; tbat tbe license of petitioner was wrongfully revoked; and tbat be is entitled to retain tbe same. It therefore entered an order directing tbe respondent to cancel said suspension and restore said license to petitioner..' Respondent excepted and appealed.

Attorney-General McMullan a-nd Assistant Attorneys-General Moody and Tucker for respondent appellant.

Powell & Powell for petitioner appellee.

Baknhiill, J.

Tbe statute, G. S. 20-16, vests tbe Department of Motor Yebicles with- discretionary authority “to suspend tbe license of any operator without preliminary bearing upon a showing by its records or other satisfactory evidence tbat tbe licensee: (7) Has committed an offense in another state, which if committed in this state would be grounds for suspension or revocation”; and in this State tbe revocation of a driver’s license is mandatory whenever it is made to appear tbat tbe licensee has been found guilty of “Driving a motor vehicle while under tbe influence of intoxicating liquor or a narcotic drug.” G-. S. 20-17 (2). Hence tbe department bad the right to act upon receipt óf tbe information furnished by tbe State Highway Department of South Carolina. See, also, G-. S. 20-23.

But tbe petitioner bad tbe right to a review by a Superior Court judge. G. S. 20-25.

Tbe power of tbe court, bere invoked, to review tbe order of suspension made by respondent is not the limited, inherent power of tbe judicial branch of tbe government to review tbe discretionary acts of an administrative officer. Pue v. Hood, Com’r., 222 N. C., 310, 22 S. E. (2d), 896, and cited cases. Tbe power is conferred by statute. G. S. 20-25. Hence we must look to tbe Act conferring tbe jurisdiction to ascertain tbe nature and extent of tbe review contemplated by tbe Legislature.

Upon tbe filing of a petition for review, it is tbe duty of tbe judge, after notice to tbe department, “to take testimony and examine into tbe facts of tbe case, and to determine whether tbe petitioner is entitled to a license or is subject to suspension, cancellation, or revocation of license under tbe provisions of this article.” G. S. 20-25. This is more than a review as upon a-writ of certiorari. It is a rehearing de novo, and tbe judge is not bound by tbe findings of fact or tbe conclusions of- law made by tbe department. Else why “take testimony,” “examine into tbe facts,” and “determine” tbe question at issue?

*304Here tbe court below found that no warrant was issued against tbe petitioner, no bearing was bad, no verdict was pronounced, and tbe suspension was based upon misinformation. Furthermore, it found tbat petitioner in fact is not guilty. Tbe facts thus found fully support tbe judgment entered.

Tbe department filed no answer, and it does not satisfactorily appear on tbis record wbetber tbe petitioner sought and obtained a bearing by the department before filing bis petition for a bearing before tbe judge. Although no question in respect thereto is presented on tbis record, we deem it advisable to call attention to tbe fact provision for a bearing by tbe department, upon application of tbe aggrieved licensee whose license has been suspended or revoked by the department in the exercise of its discretionary power, is contained in tbe Act. G. S. 20-16 (b). Orderly procedure demands tbat tbe administrative remedies should be exhausted before resort is bad to tbe courts under G. S. 20-25. That tbis has been done should be made to appear in tbe petition for a bearing before tbe judge.

Tbe judgment below is

Affirmed.