45 S.E.2d 370 | N.C. | 1947
Petition under G.S.
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 G.S.
When the petition came on to be heard in the court below, the court found the facts in detail, including many not material on the question here presented for decision. It concluded that although the respondent acted in good faith, its order was based on misinformation; that the license of petitioner was wrongfully revoked; and that he is entitled to retain the same. It therefore entered an order directing the respondent to cancel said suspension and restore said license to petitioner. Respondent excepted and appealed.
The statute, G.S.
But the petitioner had the right to a review by a Superior Court judge. G.S.
The power of the court, here invoked, to review the order of suspension made by respondent is not the limited, inherent power of the judicial branch of the government to review the discretionary acts of an administrative officer. Pue v. Hood, Com'r.,
Upon the filing of a petition for review, it is the duty of the judge, after notice to the department, "to take testimony and examine into the facts of the case, and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation, or revocation of license under the provisions of this article." G.S.
Here the court below found that no warrant was issued against the petitioner, no hearing was had, no verdict was pronounced, and the suspension was based upon misinformation. Furthermore, it found that petitioner in fact is not guilty. The facts thus found fully support the judgment entered.
The department filed no answer, and it does not satisfactorily appear on this record whether the petitioner sought and obtained a hearing by the department before filing his petition for a hearing before the judge. Although no question in respect thereto is presented on this record, we deem it advisable to call attention to the fact provision for a hearing by the department, upon application of the aggrieved licensee whose license has been suspended or revoked by the department in the exercise of its discretionary power, is contained in the Act. G.S.
The judgment below is
Affirmed.
