Opinion
No. 29187
Decided December 9, 1942.
Motor vehicles — Driver's license — Failure of operator to produce license or furnish evidence thereof — Not a misdemeanor, but prima facie evidence of not having obtained license — Section 6296-14 (b), General Code.
1. Under the provisions of Section 6296-14 (b), General Code, the failure of the operator of a motor vehicle to produce his driver's license or to furnish satisfactory evidence thereof upon the demand of a peace officer does not constitute a misdemeanor.
2. This section specifically provides that such failure on the part of the driver shall constitute " prima facie evidence of his not having obtained such license."
APPEAL from the Court of Appeals of Clinton county.
On the evening of June 29, 1941, the defendant, Elon Farren, in company with his brother, his sister, and his sister-in-law, was driving his automobile along a state highway near his farm in Clinton county, Ohio. He overtook and passed another automobile in which two state highway patrolmen were riding. In a few moments the patrolmen overtook him and ordered him to stop. He complied. The patrolmen told him that in passing their automobile he had turned to his right too soon, and then they asked him to produce his driver's license. This he refused to do, saying that he had done nothing wrong. The patrolmen then forcibly removed him from his automobile. They took him to the highway patrol barracks at Wilmington, Ohio, and then to the mayor's court in that city where he asked what charge was being placed against him. He was told that the offense was his failure to produce a driver's license upon the demand of the patrolmen therefor. He thereupon advised the mayor that his driver's license was in his automobile and that he would go and get it if permitted so to do. He was allowed to produce the license, and he then exhibited it to the mayor. Nevertheless he was bound over to the grand jury of that county.
Thereafter an indictment was returned against him charging in part that he "did fail and refuse to display an operator's or chauffeur's license, or furnish satisfactory proof that he had such license, upon demand of a peace officer * * * in violation of Section 6296-14B of the General Code of Ohio." To this indictment the defendant filed a demurrer on the ground that it "does not state facts sufficient to constitute an offense under the laws of the state of Ohio." The demurrer was overruled, and the defendant was tried, convicted and sentenced to pay a fine.
Upon an appeal to the Court of Appeals on questions of law the judgment of the trial court was reversed, and the cause was remanded with instructions to sustain the defendant's demurrer and dismiss the proceedings against him.
The case is in this court for review by reason of the allowance of the state's motion to certify the record.
Mr. Thomas J. Herbert, attorney general, Mr. G.L. Schilling, prosecuting attorney, Mr. E.G. Schuessler, and Mr. Harry C. Nail, Jr., for appellant.
Messrs. Pulse, Pulse Roades and Messrs. Nichols, Speidel Nichols, for appellee.
The operative facts in this case are not in dispute.
The sole question of law here presented is whether under the provisions of Section 6296-14 (b), General Code, it constitutes a misdemeanor for an operator of a motor vehicle to fail to display an operator's license, or furnish satisfactory proof that he has such license, upon demand of a peace officer. This section reads as follows:
"(b) The operator or chauffeur of a motor vehicle shall display his license or furnish satisfactory proof that he has such license upon demand of any peace officer or of any person damaged or injured in any collision in which such licensee may be involved. Failure to produce such license on demand, or to furnish satisfactory evidence that such person is duly licensed under this act, shall be prima facie evidence of his not having obtained such license."
It is the contention of the state that failure to display an operator's license, or to furnish satisfactory proof of possession thereof, upon demand of a peace office, is an offense punishable by the general penalty provided by Section 6296-30, General Code.
The defendant agrees that under the provisions of Section 6296-4, General Code, a non-exempted person is expressly prohibited from driving a motor vehicle upon a highway in this state unless he has been duly licensed, and that a violation thereof constitutes a misdemeanor punishable under Section 6296-30, supra. The state concedes that under Section 6296-14 (b) a driver is not required to display or produce his license upon demand, inasmuch as the statute definitely permits, as an alternative, that he may "furnish satisfactory evidence that" he is duly licensed. But it is insisted that if he does neither, he is guilty of a misdemeanor, irrespective of whether he in fact has been licensed; and it is this contention that constitutes the crux of this controversy.
The dispute arises by reason of a difference of opinion as to the significance of the last sentence of Section 6296-14 (b) which provides that "Failure to produce such license on demand, or to furnish satisfactory evidence that such person is duly licensed under this act, shall be prima facie evidence of his not having obtained such license." The defendant maintains that this section itself specifically establishes the result or penalty of non-compliance therewith, and that hence there is no reason to infer an intention on the part of the General Assembly to provide a second result in the form of the penalty fixed by the general terms of Section 6296-30. This is the view adopted by the Court of Appeals; and after a study of the above-mentioned sections this court has reached a similar conclusion. It is a cardinal principle of statutory construction that a specific provision shall prevail over one that is only general. But in this instance it is unnecesary to rely upon so insecure a basis as mere inference, since by their own terms the general provisions of Section 6296-30 are made applicable "unless another penalty is in this act or by the laws of this state provided." Section 6296-14 (b) does provide another penalty.
Had this defendant been indicted for the offense of operating a motor vehicle upon a highway without having been duly licensed, his failure to produce his license or to furnish satisfactory evidence thereof would have constituted prima facie evidence of his guilt. In presenting his defense at the trial he could have rebutted this presumption by offering his license in evidence. But this is not the offense for which he was indicted.
Finally, it is worthy of passing note that the so-called Uniform Motor Vehicle Operators' and Chauffeurs' License Act contains a provision requiring a driver to display his license upon the demand of a peace officer; and it expressly provides further that the production of a proper license at the trial shall constitute a defense to any charge with reference thereto. 11 Uniform Laws Annotated, 87.
Possibly it should be added that judicial propriety of course precludes this court from expressing an opinion as to the wisdom or necessity of making a violation of Section 6296-14 (b) a misdemeanor. This question of policy rests with the General Assembly in the exercise of its legislative power.
The judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
TURNER, WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
BELL, J., not participating.