{
  "id": 8607213,
  "name": "LUTHER LEE MINTZ, Petitioner, v. EDWARD SCHEIDT, COMMISSIONER OF MOTOR VEHICLES OF NORTH CAROLINA, Respondent",
  "name_abbreviation": "Mintz v. Scheidt",
  "decision_date": "1954-12-15",
  "docket_number": "",
  "first_page": "268",
  "last_page": "272",
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      "cite": "241 N.C. 268"
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  "last_updated": "2023-07-14T21:30:40.140494+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "LUTHER LEE MINTZ, Petitioner, v. EDWARD SCHEIDT, COMMISSIONER OF MOTOR VEHICLES OF NORTH CAROLINA, Respondent."
    ],
    "opinions": [
      {
        "text": "Parker, J.\nThis decisive question is presented for determination: Was the chauffeur\u2019s license of petitioner suspended by the State Department of Motor Vehicles pursuant to the provisions of G. S. N. C. 20-16, or was his license revolted under the mandatory provisions of G. S. N. C. 20-17 ? If the Department acted pursuant to G. S. N. C. 20-16, the case of Winesett v. Scheidt, Comr. of Motor Vehicles, 239 N.C. 190, 79 S.E. 2d 501, controls, and the decision of the lower court was correct. If the Department revoked petitioner\u2019s license under G. S. N. C. 20-17, Fox v. Scheidt, Comr. of Motor Vehicles, ante, p. 31, 84 S.E. 2d 259, controls, and the lower court should be reversed.\nG. S. N. 0. 20-16 is captioned: \u201cAuthority op Department to Suspend LiceNse,\u201d and provides: \u201c(a) The Department shall have authority to suspend the license of any operator or chauffeur without preliminary hearing upon a showing by its records or other satisfactory evidence that the licensee: 1. Has committed an offense for which mandatory revocation of license is required upon conviction; 2. Has been involved as a driver in any accident resulting in the death or personal injury of another or serious property damage, which accident is obviously the result of the negligence of such driver . . .\u201d Subsection (c) of this section provides that upon a suspension of license of any person by the Department, the person, whose license; was suspended, upon request shall be given a hearing, and upon such hearing, after hearing the evidence, the Department shall either rescind its order of suspension, or good cause appearing therefor, may extend the suspension of such license.\nG. S. N. C. 20-17 is headed: \u201cMandatory Eevocation oe License by Department\u201d and reads r \u201cThe Department shall forthwith revoke the license of any operator or chauffeur upon receiving a record of such operator\u2019s or chauffeur\u2019s conviction for any of the following offenses when such conviction has become final: 1. Manslaughter (or negligent homicide) resulting from the operation of a motor vehicle.\u201d Other cases specified in this section requiring mandatory revocation are omitted as not relevant.\nIt is true that the Official Notice and Eecord of Eevocation of License mailed to the petitioner does not state that the Department acted under G. S. N. C. 20-17, but throughout the word, re-vocation, and not suspension, is used, and the reason specified for the revocation is conviction of involuntary manslaughter 7 January 1954, Superior Court, Burgaw, North Carolina: these words conform with the language of G. S. N. C. 20-17 and not with G. S. N. C. 20-16. A plea of nolo contendere has all the effect of a conviction by a jury, or a plea of guilty, for the purposes of that case only. Fox v. Scheidt, Comr. of Motor Vehicles, supra; and Winesett v. Scheidt, Comr. of Motor Vehicles, supra. The petitioner makes no contention that his conviction had not become final. We take judicial notice that Burgaiv is the county seat of Pender County. Baker v. Varser, 239 N.C. 180, 79 S.E. 2d 757. It seems plain, and we so hold, that the Department revoked the chauffeur\u2019s license of petitioner under the mandatory provisions of G. S. N. C. 20-17. There is no evidence to support the trial judge\u2019s finding of fact that petitioner was notified by the Department that his chauffeur\u2019s license was suspended under G. S. N. C. 20-16. While the letter of the Department dated 3 March 1954 states that pursuant to G. S. N. C. 20-16 (c), a hearing was granted petitioner, the evidence as to the action of the Department was mandatory revocation under G. S. N. C. 20-17, and not suspension under G. S. N. C. 20-16.\nThe Record in Winesett v. Scheidt, Comr. of Motor Vehicles, supra, shows that Winesett in his Petition, paragraph 5, alleged: that the Department sent him notice in writing through the U. S. Mails \u201cthat his said operator\u2019s license to operate motor vehicles on the public highways of North Carolina was suspended,\u201d and that \u201csaid notice stated that the cause of suspension was G. S. 20-16(1) . . .\u201d Scheidt, the respondent, in his answer to the Petition, paragraph 5, stated: \u201cThat the allegations contained in Paragraph 5 of the Petition are admitted.\u201d\nWe said in Fox v. Scheidt, Comr. of Motor Vehicles, supra: \u201cG. S. N. C. 20-25, which gives the right of appeal, expressly excepts a right of appeal when such cancellation is mandatory. \u2018No right accrues to a licensee who petitions for a review of the order of the Department when it acts- under the terms of G. S. 20-17, for then its action is mandatory.\u2019 In re Revocation of License of Wright, 228 N.C. 584, 46 S.E. 2d 696.\u201d\nAlthough the Department gave petitioner a hearing under G. S. N. C. 20-16(c), such a hearing was not authorized by law, because that subsection applies to a suspension of a driver\u2019s license under G. S. N. C. 20-16, and not to a mandatory revocation under G. S. N. C. 20-17.\nThe right of appeal to the Court under G. S. N. C. 20-25 is granted only when the Department exercises its discretionary power. In re Revocation of License of Wright, 228 N.C. 584, 46 S.E. 2d 696. Therefore, the lower court had no jurisdiction of the present proceeding for the Department revoked petitioner\u2019s license under the mandatory provisions of G. S. N. C. 20-17, and the entire proceeding was void aib initio..\nThe revocation of the chauffeur\u2019s license of the petitioner by the Department under the mandatory provisions of G. S. N. C. 20-17 was the exercise of a governmental or sovereign right prescribed by the General Assembly in the interests of public safety upon the highways of the State, and respondent is not estopped by the letter of the Department dated 3 March 1954 granting petitioner a hearing from asserting that the revocation was done under the mandatory provisions of that section. Henderson v. Gill, Comr. of Revenue, 229 N.C. 313, 49 S.E. 2d 754; Washington v. McLawhorn, 237 N.C. 449, 75 S.E. 2d 402.\nWhen the Department of Motor Vehicles suspends or revokes a driver\u2019s license to operate a motor vehicle, all its records, including the notice mailed to, or served upon, the licensee, should state explicitly whether it acts under the provisions of G. S. N. C. 20-16, or the provisions of G. S. N. C. 20-17.\nThe recent decision of Fox v. Scheidt, Comr. of Motor Vehicles, supra, is controlling. Under its authority the judgment of the lower court is reversed, and the proceeding will be dismissed with the costs taxed against the petitioner. It is so ordered.\nReversed.",
        "type": "majority",
        "author": "Parker, J."
      }
    ],
    "attorneys": [
      "Harry McMullan, AMorney General, and Samuel Behrends, Jr., Member of Staff, for the State.",
      "John C. Wessell and Elbert A. Brown for Petitioner, Appellee."
    ],
    "corrections": "",
    "head_matter": "LUTHER LEE MINTZ, Petitioner, v. EDWARD SCHEIDT, COMMISSIONER OF MOTOR VEHICLES OF NORTH CAROLINA, Respondent.\n(Filed 15 December, 1954.)\n1. Criminal Law \u00a7 17c\u2014\nA plea of nolo contendere lias tbe effect of a conviction by a jury, or a plea of guilty, for the purposes of tbe case in which it is entered.\n2. Evidence \u00a7 2\u2014\nThe courts will take judicial notice of the county seat of a county of this State.\n3. Automobiles \u00a7 34b\u2014\nAn official notice and record of \u201crevocation of license\u201d for the specified reason of \u201cconviction of involuntary manslaughter\u201d mailed to a driver by the Department of Motor Vehicles, is held to show that the license was revoked under G.S. 20-17 rather than suspended under G.S. 20-16, and does not support a finding by the trial court that the license was suspended under the latter statute.\n4. Same\u2014\nA plea of nolo contendere to a charge of manslaughter resulting from the operation of an automobile supports the revocation of the driver\u2019s license under the mandatory provisions of G.S. 20-17.\n5. Same\u2014\nThe right of appeal under G.S. 20-25 is granted only when the Department of Motor Vehicles exercises its discretionary power under G.S. 20-16; no appeal lies where the Department revokes a license in accordance with the mandatory provisions of G.S. 20-17, and the lower court acquires no jurisdiction by an attempted appeal and the entire proceeding is void ab initio.\nC. Same\u2014\nWhere the Department of Motor Vehicles revokes a driver\u2019s license under the mandatory provisions of G.S. 20-17, the Department will not be estopped from denying that it was acting under the provisions of that statute by reason of a letter subsequently written to the licensee granting him a hearing under G.S. 20-16 (c), since in such instance a hearing is not authorized by law.\nAppeal by respondent from Martin, Special Judge, April Civil Term 1954 of New Hanover.\nPetition to compel the respondent, Commissioner of Motor Yebicles of North Carolina, to restore petitioner\u2019s automobile driver\u2019s license allegedly suspended for manslaughter resulting from the operation of a motor vehicle.\nThe facts were these: Petitioner had a chauffeur\u2019s license to operate motor vehicles on the highways of the State issued to him by the State Department of Motor Yehieles, which license had not expired. At the January 1954 Criminal Term of the Superior Court of Pender County, petitioner, with the consent of the Solicitor and Court, entered a plea of nolo contendere to a charge of manslaughter resulting from the operation of an automobile by petitioner. The Court entered judgment that the defendant pay a fine of $250.00 and the costs. Shortly thereafter the petitioner received the following notice through the mails:\n\u201cForm DL-44\nNORTH CAROLINA DEPARTMENT OF MOTOR YeHICLES State Hioi-iwav Patrol Ealeigh\nEen. Ch.\nL. C. Att.\nMar. 19, 1954\nB January 8, 1954\nOfficial Notice anb Eecord of Eevocation of License:\nName of Licensee \u2014 -Luther Lee Mintz\nAddress of Licensee \u2014 Eoute #2, Box 515,\nWilmington, N. O.\nwas: Et. 2, Box 224\nDriver\u2019s License No. Een: Ch: 35991\n(33 w m 200 6-0 brn-gry)\nDate of Eevocation \u2014 January Y, 1954\n\u201cYou may apply for a new license \u2014 January Y, 1955 \u2014 provided you have complied with the Safety Eesponsibility Act.\n\u201cConvicted of \u2014 Involuntary Manslaughter\nDate of Conviction \u2014 January Y, 1954\nName of Court \u2014 Superior Court\nLocation of Court \u2014 Burgaw, N. 0.\n\u201cThe above named person will take notice that the law forbids said person to drive a motor vehicle upon the highways of the State during the period of revocation.\n(s) James E. Smith, Colonel\nCommanding\nState Highway Patrol.\u201d\nUpon receipt of tbis notice petitioner requested a bearing from tbe Department of Motor Yebicles. Ilis lawyers received a letter dated 3 March 1954 from Charles A. Speed, Major Director, Safety Division, State Highway Patrol, stating that upon petitioner\u2019s request and pursuant to the provisions of G. S. N. C. 20-16 (c) the Department afforded him an opportunity for a hearing on 12 March 1954 in Wilmington, New Hanover County, the county of petitioner\u2019s residence. After said hearing the Department, by letter dated 16 March 1954, notified petitioner it had determined to allow petitioner\u2019s license to remain revoked.\nWhereupon the petitioner filed his petition in the Superior Court of New Hanover County, in which he alleged that his chauffeur\u2019s license was suspended by the Department. Respondent answered denying that he suspended the chauffeur\u2019s license of petitioner, and alleged that the said license was revoked under the mandatory provisions of G. S. N. C. 20-17.\nThe trial judge heard the evidence, made findings of fact, and entered judgment.\nThe sole evidence bearing upon the question as to whether the chauffeur\u2019s license of petitioner was suspended under the provisions of Gf. S. N. C. 20-16, or revoked under the mandatory provisions of Gf. S. N. C. 20-17, was the above notice sent to petitioner by the State Department of Motor Vehicles and the letter from the Department dated 3 March 1954. The trial judge found as a fact that the petitioner\u2019s chauffeur\u2019s license was suspended by the respondent under G. S. N. O. 20-16 for one year from 7 January 1954 because of his plea of nolo contendere, and ordered the respondent to restore to petitioner his chauffeur\u2019s license.\nRespondent excepted and appealed, assigning error.\nHarry McMullan, AMorney General, and Samuel Behrends, Jr., Member of Staff, for the State.\nJohn C. Wessell and Elbert A. Brown for Petitioner, Appellee."
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