Opinion
35676.
DECIDED MAY 20, 1955. REHEARING DENIED JUNE 13, 1955.
Appeal. Before Judge Andrews. Fulton Superior Court. January 24, 1955.
S. T. Allen, for plaintiff in error.
Eugene Cook, Attorney-General, Hamilton B. Stephens, J. R. Parham, Assistant Attorneys-General, contra.
1. Where the operator of a motor vehicle while engaged in this single act within the limits of a municipality causes the death of a pedestrian, authorizing the action of the municipal judge in binding him over to the grand jury for the offense of involuntary manslaughter, and such operator also in connection with the same act violates an ordinance of the municipality, the violation of State law supersedes the violation of the city ordinance. Accordingly, a municipal court judge before whom the case is heard cannot bind over the defendant to the grand jury for the violation of the State statute and at the same time convict him for the violation of a municipal ordinance.
2. Code (Ann. Supp.) §§ 92A-422 and 92A-423 were enacted by the General Assembly of this State to afford a complaining automobile driver licensee a hearing before the Department of Public Safety and an appeal to the superior court as a matter of right without requiring such license to give an appeal bond for the payment of future costs or a pauper affidavit in lieu thereof, there being no specific requirement for the giving of such a bond or the making of such an affidavit in lieu thereof, and the policy of the government of this State being to establish courts primarily to do justice and not to collect costs.
DECIDED MAY 20, 1955 — REHEARING DENIED JUNE 13, 1955.
The plaintiff in error filed with Col. W. C. Dominy, Director of the Department of Public Safety of this State, a writing which he denominated "my written appeal from a suspension `indefinitely' of my driver's license 673021" by a judge of the Municipal Court of Atlanta, dated February 17, 1954. This writing continued to set out facts in substance as follows: that about 5:20 p. m. on February 12, 1954, he was driving his car on Sylvan Road where it intersects with Lee Street, S.W.; that he stopped at the intersection for a traffic light, and when it turned green started up his car, turning left and south on Lee Street, S.W.; that he had crossed the south unmarked crosswalk and had straightened up his car along the center line of Lee Street on the west side thereof, moving at a speed of about 10 miles per hour when a pedestrian walked into and collided with the right front corner of his front bumper and front fender; that before he could stop or swerve his car to miss the pedestrian, he drove the right front wheel of his car over the pedestrian; that he then stopped a distance less than the length of his car; that the pedestrian was lying on the ground with his feet and knees extending out into the street to the west of the car; that a group of bystanders lifted his car eastward freeing the pedestrian, who was later taken to Grady Hospital; that police officers served him with a notice to appear in the recorder's court at 3 p. m., February 17, 1954, to answer the charge of "violating pedestrian rights — duties — accident"; that during the night of the day on which he was injured the pedestrian died; that on the next morning the police arrested him "on the charge of involuntary manslaughter — violation of pedestrian's rights — duties, D.C., accident"; that the defendant was required to give a bond in the sum of $1,500; that on February 17, 1954, the case came on for trial in the Municipal Court of Atlanta; that the judge thereof bound him over to the Fulton County grand jury under a $1,000 bond, and he was rearrested and placed in the Fulton County jail; that the Judge of the Municipal Court of Atlanta also fined him $50 or 50 days in the stockade of the City of Atlanta and entered in this judgment "driver licenses suspended indefinitely"; that on May 7, 1954, the grand jury returned a no-bill and thereafter he presented a certificate of this fact to the municipal judge, together with written application that his driver's license be reinstated, which request was refused in writing by the judge with the notation "subject's driver licenses were sent to the Department of Public Safety with a recommendation that they be suspended by reason of the fact that licensed driver was convicted in this court of the city ordinance of `Violating Pedestrian's Rights' . . . The reinstatement requested is refused because in my opinion the subject is not a safe driver." The plaintiff in error further contends in this writing in substance that the judge of the municipal court could not try the State offense, but could only bind him over to the grand jury in his capacity as a committing magistrate; that, having treated the single act and single transaction as a State offense of involuntary manslaughter, he was then without authority and jurisdiction to treat it as constituting the violation of a city ordinance; and that, accordingly, the judgment of the municipal judge convicting the defendant of a violation of the ordinance and attempting therein to suspend his driver's license was without lawful authority. The substance of the writing is that the municipal court judge wrongfully took possession of his driver's license and wrongfully delivered possession thereof to the Department of Public Safety; that the Department of Public Safety is wrongfully withholding said license from the plaintiff in error; and the writing concludes with the prayer that "the director or his authorized representative examine into the matter, and that my driver's license be returned to me."
The hearing was held before W. P. Grinstead, Supervisor, Captain Bureau of Safety Responsibility and Revocation Unit, Department of Public Safety, who denied the petition on the ground that no letter of recommendation had been received by the Department of Public Safety, as provided by Code § 92A-427.1 in connection with the suspension of a license by court. The decision also provided that "neither will the licensee appear and take the driver's examination as requested by the hearing officer with the approval of the judge, who states that, upon the licensee qualifying as a licensed operator, he would consider giving a letter of recommendation." This decision was appealed to the Superior Court of Fulton County and a jury.
Upon the call of the case for hearing on appeal, counsel for the defendants in error made an oral motion to dismiss the appeal upon grounds substantially as follows: 1 (a) that there is no right of appeal from the municipal court or from a suspension in that court of a withdrawal or revocation of a driver's license; (b) that, even if there is such a right of appeal to the Director of the Department of Public Safety from an action taken by the municipal court judge, that appeal was not brought within the time prescribed by law; (c) that the proceeding in the municipal court is void, and there is accordingly nothing to appeal from — hence, the Director of the Department of Public Safety could have done nothing except to decline to reinstate the license; (d) that, under the provisions of the law of this State, the Director of Public Safety has no right to return, reinstate, or reissue a driver's license suspended by a recorder upon conviction of the license holder for a violation of the traffic laws of this State, or traffic ordinances of municipalities, without recommendation of such judge; (2) that there was no bond given in connection with the appeal to this court, and bond should have been given in connection with an appeal, and no affidavit was given in lieu of bond as provided in Code § 6-105.
On this motion the judge of the superior court entered the following order: "The within appeal coming on for a hearing and on oral motion to dismiss the appeal by the appellees, having been made upon the ground that an appeal bond had not been made as required by law and upon other grounds, after hearing arguments and upon consideration of said motion to dismiss, it is ordered that said motion be and the same is hereby sustained and said appeal is hereby dismissed." This order is assigned as error in the bill of exceptions.
1. (a) As to ground 1 (a) of the motion to dismiss, it is true that no right of appeal lies from a municipal court to the Department of Public Safety. However, in determining what the "writing" of the plaintiff in error constitutes, it is proper and necessary to construe the pleading in accordance with its allegations and prayers. The pleader is not bound by the name by which he denominates his pleading, as "there is no magic in mere nomenclature." Girtman v. Girtman, 191 Ga. 173, 180 ( 11 S.E.2d 782). The plaintiff in error is not bound, therefore, by reason of having designated his pleading "my written appeal from a suspension `indefinitely' of my driver's license 673021." Accordingly, the pleading when construed in this manner must be held to be an application for a hearing before an agent of the Department of Public Safety, provided for under Code (Ann. Supp.) § 92A-422, which provides in part as follows: "Upon the refusal, suspension, revocation, or cancellation of any learner's, special learner's, operator's or chauffeur's license for cause, a hearing shall be granted on demand before any agent of the Department of Public Safety authorized by the Director to hear the same, which hearing shall be had in the county of such person's residence, and need not be a matter of record."
According to the allegations of this application, which on motion to dismiss, as in cases of general demurrer, must be taken to be true, the action of the municipal judge in taking control of the license and entering an order of suspension was void. These allegations disclose, as appears from the statement of facts herein, that police officers served a notice on the plaintiff in error to appear in police court in answer to the charge of violating the ordinance against "violation of pedestrian's rights — duties — accident"; that, before the time for him to appear, the victim had died and he was arrested on a charge of involuntary manslaughter and again for the violation of the ordinance; that, on the hearing before the recorder, the judgment of the court treated the act alleged to be penal as constituting a violation of the law against involuntary manslaughter and also as a violation of the ordinance in question. It is well settled that, where a single act is committed within a municipality which act is penal and constitutes the violation of a State law, and at the same time constitutes the violation of a city ordinance, the State law supersedes the city ordinance, and a conviction based on the city ordinance is void, there being a State case pending. Mayo v. Williams, 146 Ga. 650, 651 (1) ( 92 S.E. 59). See also Jenkins v. Jones, 209 Ga. 758 ( 75 S.E.2d 815). A municipal judge of the City of Atlanta is an ex officio committing magistrate. Code § 27-423. In his capacity as such committing magistrate he is a judicial officer of this State. In his capacity as a municipal court judge he is a judicial officer of the municipality of which he is a public servant. In this case it was within his power to determine whether the act alleged to have been committed by the plaintiff in error constituted a State offense for which he should be bound over to the grand jury, in his capacity as committing magistrate of the State of Georgia, or whether such act constituted a violation of an ordinance of the city, in his capacity as judge of the municipal court. The single act could not have been both; and when the municipal court judge from the evidence on the hearing before him in his capacity as committing magistrate of the State found that there was probable cause to believe that the State offense of involuntary manslaughter had been committed and bound him over to the grand jury, he lost jurisdiction of the case. Further, it frequently is, and may have been in this case, that the only unlawful act essential to constitute the probable cause to bind over for involuntary manslaughter is the violation of the city ordinance for which judgment of conviction was entered. Pearson v. Wimbish, 124 Ga. 701 (2), 708 ( 52 S.E. 751, 4 Ann. Cas. 501).
Having found from the evidence as a State officer that the defendant had probably committed the offense of involuntary manslaughter, the judge could not consistently and at the same time find that he had violated the city ordinance, the act constituting the alleged violations being a single act and the State law superseding the city ordinance. The jurisdiction over the driver's license of the plaintiff in error, as provided under Code (Ann. Supp.) § 92A-9908, therefore, was never invested in the municipal judge, and his judgment attempting to suspend the license was void ab initio. A void judgment is a nullity. Code § 110-709; Hart v. Manson, 119 Ga. 865(3) (47 S.E. 345).
The application of the plaintiff in error to the Department of Public Safety together with its exhibits alleged facts showing that the judgment of the municipal judge was void. This application did not ask the municipal judge to do anything. It alleged in effect that the Department of Public Safety had his license; that it had been turned over to that department illegally; that the department was withholding the license from him illegally. The effect of these allegations was to show a suspension or a revocation or a cancellation of the driver's license of the plaintiff in error by the Department of Public Safety. We know of no more effective way of suspending, revoking, and cancelling a driver's license than to take it away from the party who is lawfully entitled to use it. Code (Ann. Supp.) § 92A-414 requires every licensee while operating a motor vehicle to carry such license upon his person. Such licensee would be unable to comply with this provision of the law while such license was being withheld from him. The application prayed that the license thus unlawfully withheld be restored. The application was properly brought under the provisions of Code (Ann. Supp.) § 92A-422. If these alleged facts were made to appear as true before the hearing officer, he was not only empowered but it was his duty to restore the license. The appeal to the superior court represents a de novo investigation, and that court is invested with the same power and duty.
In consideration of the grounds of the motion shown in the statement of facts under division 1 as to 1 (b) and (c) of the motion to dismiss, as herein before pointed out, the "writing" of the plaintiff in error was not an appeal from the municipal court, but was an application for a hearing under Code (Ann. Supp.) § 92A-422. As to ground 1 (d), since the judgment of the municipal court attempting to suspend the license was a void judgment, it was unnecessary for the Director of the Department of Public Safety to have the recommendation of the judge of the municipal court as authority to reinstate the license. Accordingly, Code (Ann. Supp.) § 92A-427.1 does not apply to this case. Grounds 1 (a, b, c, and d) of the motion to dismiss are without merit.
2. As to ground 2 of the motion to dismiss for failure to give bond, Code (Ann. Supp.) § 92A-423 provides that "the decision of such agent or officer of the Department of Public Safety shall be final unless the person whose license has been suspended, revoked or canceled shall desire an appeal, in which case he shall have the right to enter an appeal to the court of the county of his residence, other than a justice's court, having jurisdiction of misdemeanor cases, after notice to the Director, in the same manner as appeals are entered from the court of ordinary, except that he shall not be required to pay the costs in advance." Appeals from the court of ordinary to the superior court are provided for in Code Chapter 6-2 and fix the time in which the appeal is to be entered and the manner in which the appeal is to be made. Section 6-204 provides that, as a condition precedent to such appeals, the costs that have already accrued must be paid, and that bond and security shall be given to the ordinary for such further costs as may accrue by reason of the appeal. Code § 6-203 provides for an affidavit in forma pauperis in lieu of such bond and in lieu of the payment of costs. Obviously the purpose of Code (Ann. Supp.) §§ 92A-422 and 92A-423 was to afford the complaining licensee a hearing before the Department of Public Safety and an appeal to the superior court as a matter of right. The hearing in the first instance is before the party against whom the wrongful act is alleged, and the appeal is the first opportunity the applicant has for a judicial determination by a non-partisan tribunal. This is not a criminal case and cannot be so construed. Nevertheless, it grows out of a criminal case and necessarily deals with a part of the punishment resulting from a criminal trial. Art. I, sec. I, par. X of the Constitution of the State of Georgia (Code § 2-110), in order to secure for the citizens of this State who are charged with crime full and complete access to the courts, provides that no person shall be compelled to pay costs except after conviction on final trial. The appeal bond required from the courts of ordinary is to protect the opposing litigant from having to pay the costs in case the appellant is cast. Blount v. Dean, 57 Ga. App. 332 ( 195 S.E. 287). While the State is not the designated party here, it is the real party at interest, the designated party being an officer of the State in his official capacity. By the constitutional provision above cited the State does not protect itself by requiring the payment of costs in advance.
The fact that Code (Ann. Supp.) § 92A-423 exempts the payment of costs in advance shows an intention of the General Assembly to treat the appeal the same as appeals from the court of ordinary except in relation to costs. Otherwise the last clause of the latter section, "except that he shall not be required to pay the costs in advance," would be rendered entirely meaningless. There can be no accrued costs to be paid in advance before the Director of the Department of Public Safety. He is a salaried administrative officer and could not lawfully receive such costs. This fact was best known to the particular General Assembly which created his office and fixed his salary, since it was the same General Assembly which provided for the hearing and appeal in the same act. Also, the General Assembly in 1943 (Ga. L. 1943, p. 198) amended the act so as to provide an increase in salary, and for other purposes, in which it is expressly provided by a part of section 1 that "none of the members of the Department of Public Safety shall receive any salary or compensation for the discharge of their duties, other than their salaries as officers of the State of Georgia, except such legitimate expenses as may be incurred." Thus, applying one of the fundamental rules for the construction of legislative acts, that of determining the meaning of the General Assembly, it appears that no appeal bond or pauper affidavit in lieu thereof should be required in such a case as the one here under consideration. Also, the exception as to the payment of costs in advance should be given some meaning under another fundamental rule for the construction of legislative acts. Code § 102-102(9). We can readily see that on a trial in the superior court of such a proceeding costs will accrue. However, on the question of the requirement to give bond, statutes should have a reasonable construction. See Blount v. Dean, supra, where this construction was given to a statute that required a bond. The same construction should be given to a statute where it is not clear whether or not a bond is required. If this statute should be construed to require the giving of a bond, then this court would necessarily have to go further and provide that, since the ordinary, a constitutional judicial officer of this State, must approve such a bond in cases appealed from the court of ordinary, then the Director of the Department of Public Safety or his hearing officer would be the proper person to approve the bond in this proceeding. In that case, if the hearing officer arbitrarily declined to approve such a bond, then the licensee would have the expense and delay of another lawsuit and proceed by mandamus to require such approval. The result would be that the rights given under Code (Ann. Supp.) §§ 92A-422 and 92A-423 could for all intents and purposes be defeated. The hearing officer designated to hear these applications is not a judicial officer, and is not under oath as such. Since there is no specific requirement for the giving of an appeal bond conditioned on the payment of future costs or in lieu thereof a pauper's affidavit, the language of Code (Ann. Supp.) § 92A-423 is liberally construed so as not to require such bond or affidavit, in keeping with the policy of the government of this State, which is to establish courts primarily to do justice and not to collect costs.
The judgment of the superior court sustaining the motion to dismiss the appeal is error.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.