429 | Ohio Ct. App. | Jan 4, 1945
This is an appeal on questions of law from the final paragraph of the sentence of the Judge of the Municipal Court of Piqua,
Ohio, of date of July 7, 1944, pronounced upon a plea of defendant (appellant herein) of guilty of the offense of violating Section 12606, General Code. The paragraph of the *444 sentence to which the appeal is specifically directed is as follows:
"It is further ordered by the court that defendant's operator's license and right to drive be suspended for and during his natural life."
It is the claim of defendant that the trial judge, who acted by virtue of Section 6296-17, General Code, was without authority because that section had been abrogated by the provisions of Section 6298-1 et seq., General Code, and especially by Section 6298-26, General Code.
Section 12606, General Code, upon which the affidavit against the defendant is predicated, provides:
"In case of accident to or collision with persons or property upon any of the public roads or highways, due to the driving or operation thereon of any motor vehicle, the person so driving or operating such motor vehicle, and having knowledge of such accident or collision, shall stop and upon request of the person injured or any person, give such person his name and address and in addition thereto if not the owner, the name and address of the owner of such motor vehicle, together with the registered number of such motor vehicle."
The offense is declared to be a misdemeanor and the penalty is fixed by the section.
The sufficiency of the affidavit was not questioned in the trial court, and is not questioned here. We observe that the affidavit did not aver as provided in the statute, that the collision "was due to the driving or operation" on the highway of the motor vehicle which the defendant was driving. We express no opinion as to the effect of this omission.
The trial judge in suspending defendant's operator's license for his natural life, acted under authority of Section 6296-17, General Code, which, if effective, *445 clearly authorized the action taken. Section 6296-17, General Code, became effective on October 1, 1936 (116 Ohio Laws, pt. 2, 39). When this section was enacted, Section 6298-1, General Code, had become effective, August 20, 1935 (116 Ohio Laws, 218), and authorized and empowered the Registrar of Motor Vehicles of the state of Ohio, under the provisions of the act (Financial Responsibility Law), to revoke and terminate drivers' operators' licenses of those drivers who had been convicted of or plead guilty to any of the offenses named in the section.
One offense common to Sections 6296-17 and 6298-1, General Code, is "failing to stop after an accident, when required so to do by law," although the phraseology defining this offense differs somewhat in the respective sections.
It will also be noted that one offense is set out in Section 6296-17, General Code, which does not appear in Section 6298-1, General Code, namely:
"3. Perjury or the making of a false affidavit," etc.
At the time of defendant's trial, Section 6296-17, General Code, was identical in form as it has been since its enactment. Section 6298-1, General Code, was amended, effective August 31, 1939 (118 Ohio Laws, 480), by inserting after the first paragraph of the section following the word "offenses," the words, "whether prosecuted under the state law or municipal ordinance," and the section was again amended, effective September 20, 1943 (120 Ohio Laws, 658), by adding in paragraph (a), which follows the first paragraph of the section, after the word "offenses," the words, "in any court of record within this state." The section as last enacted was effective at the time of defendant's trial. As of the date of the last amendment to the section, other sections of the act were also amended, namely, Sections 6298-2, 6298-4, 6298-10, *446 6298-12, 6298-14 and 6298-24. Section 6298-26, General Code, provides:
"The provisions of Sections 6298-1 to 6298-25 inclusive of the General Code as hereby amended shall apply to convictions of offenses committed, and judgments on causes of action arising, after the effective date of this act. Any conviction or judgment rendered after the effective date of this act, but based on offenses committed or causes of action arising prior to the effective date of this act, shall be governed by the provisions of law in effect at the time the offense was committed or the cause of action arose." (Emphasis ours.)
It will be noted that in these amendments, Section 6296-17, General Code, was not included and if affected at all by this legislation it must be by implication. This is the claim of defendant. We do not so read the sections. Section 6298-1, General Code, insofar as it affects the offenses here involved, was enacted after Section 6296-17, General Code, and no mention specifically or by implication was made of Section 6296-17, General Code, upon the enactment of Section 6298-1, General Code. It seems clear that it was the purpose of the Legislature to create the law set forth in Section 6298-1, General Code, independent of, and in addition to, the provisions of Section 6296-17, General Code.
There is a further provision in Section 6298-1, General Code, not found in Section 6296-17, General Code, relating to the revocation of drivers' licenses for failure to satisfy or to stay execution of a final judgment rendered against a defendant in any court of record within the state in an action for wrongful death, personal injury or damage to property, caused by such person's individual operation of a motor vehicle, after the effective date of this amendatory act. *447
There seems to be some overlapping of authority in the two sections, but there is nothing to indicate a purpose by the enactment of Section 6298-1, General Code, to annul the provisions of Section 6296-17, General Code. Obviously, if a judge of a court of record, acting under Section 6296-17, General Code, suspends a driver's license, it is effective, and the registrar of motor vehicles can do no more. However, there might be an instance where the trial judge failed to suspend a driver's license, although required to do so by Section 6296-17, General Code, in which event Section 6298-1, General Code, would authorize and require the registrar of motor vehicles to act.
We do not find the claim, that Section 6296-17, General Code, has been repealed by any subsequent legislation, well made.
It is also urged that, inasmuch as the offense under Section 12606, General Code, committed by the defendant, is but a misdemeanor, the maximum punishment for which is six months' imprisonment, revocation of the defendant's right to drive an automobile for a longer period of time is unwarranted. Section 6296-17, General Code, makes specific reference to the offense provided in Section 12606, General Code, and authorizes the suspension of the license of an automobile driver convicted thereunder "for any period of time."
It is further claimed that the action of the trial judge in suspending defendant's driver's license for life is harsh, unusual and cruel punishment within the meaning of the Constitution. Inasmuch as the defendant entered a plea of "guilty," there is no bill of exceptions and, therefore, if there were any extenuating circumstances, they are not before us. We are not prepared to say that the authorization to a judge of a court of record to suspend a driver's operator's license *448 is in violation of any provision of our state or federal Constitution.
The judgment is affirmed.
Judgment affirmed.
GEIGER and NICHOLS, JJ., concur.
NICHOLS, J., of the Seventh Appellate District, sitting by designation in the Second Appellate District.