This is an original petition for mandamus filed in this court by L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, to compel Judge J. Russell McElroy, as Presiding Judge of the Tenth Judicial Circuit of Alabama, to vacate an order made by him in connection with the suspension of the driver's license of Robert R. Lucas. The case is submitted here on the petition for mandamus and the answer of Judge J. Russell McElroy. The case calls for an interpretation of pertinent provisions of § 68, Title 36, Code of 1940, relating to the cancellation, suspension or revocation by the Director of Public Safety of a driving license.
L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, suspended the driver's license of Robert R. Lucas effective December 17, 1953, for a period of two months. This action was taken by the Director on the ground that Robert R. Lucas was an habitual violator of the traffic laws pursuant to the authority granted the Director by § 68, Title 36, Code of 1940. Thereafter a hearing was given to Robert R. Lucas on his request by L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, with the result that the period of suspension was kept at two months.
Robert R. Lucas then filed a petition in the Circuit Court of Jefferson County, Alabama, to have the aforesaid action of L. B. Sullivan, as Director of the Department of
Thereupon L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, made a motion that the stay of the order be vacated. Judge J. Russell McElroy, as Presiding Judge of the Tenth Judicial Circuit of Alabama, overruled the aforesaid motion and it is this order overruling the aforesaid motion which L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, seeks to have this court vacate on the petition here filed in this court.
I. The state insists in this case that the circuit court had no authority or power to issue an order staying the order of the Director of Public Safety pending the hearing on the petition filed pursuant to Title 36, § 68, Code of 1940, because no such authority is conferred by the statute. It is true that an examination of the pertinent provisions of § 68 shows that there is no express authority to stay the order provided in the statute. We set out the pertinent provisions of the statute as follows:
The statute, however, satisfies us that the statute in effect contemplates a de novo trial in the circuit court. The court is authorized to take testimony and to examine the facts of the case and to determine whether the petitioner is entitled to a license or subject to suspension, cancellation or revocation of the license under the provisions of this statute. In other words, the court is empowered to have a hearing, to take testimony and to make a finding of its own. This necessarily means that the taking of an appeal to the circuit court by the filing of the petition provided in the statute ipso facto vacates the director's order of suspension.
In Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406, 407, this court said:
And in Louisville & N. R. Co. v. Lancaster, 121 Ala. 471, 25 So. 733, 735, in discussing the effect of an appeal with a trial de novo, this court said:
Vinyard v. Republic Iron & Steel Co., 205 Ala. 269, 87 So. 552; Abraham v. Alford, 64 Ala. 281; Ex parte Cudd, 195 Ala. 80, 70 So. 721.
We agree with Judge McElroy when he said, "That the allowance of any force or effect to the director's order of suspension subsequent to the filing of the petition
Since the filing of the petition vacated the director's order of suspension, the order staying the suspension was unnecessary, but this does not make the order illegal and there is no reason why such order could not be made in order that the parties might be entirely sure of their legal position.
But it is further argued by the petitioner that our cases which give effect to an appeal where a de novo trial is contemplated by the statute, do not apply to a situation where there is an appeal from the order of an administrative officer such as the Director of Public Safety. It is sufficient to say that as we pointed out in Ex parte Darnell, Ala., 76 So.2d 770, under § 139 of the Constitution of Alabama, an administrative officer may be invested with judicial authority. The action of the Director of Public Safety in revoking or denying the driver's license of Robert R. Lucas was a judicial act and, therefore, the appeal under the statute from the order of the Director of Public Safety was not merely an appeal from the order of an administrative officer, but was an appeal from the order of an administrative officer acting in a judicial capacity.
II. Lastly, it is the position of the petitioner that in the event we should hold that the circuit court has the power to stay an order of the Director of Public Safety where a petition has been filed pursuant to the provisions of § 68, Title 36, Code of 1940, then in the present case the court exceeded its discretionary power when it issued the stay order. Under the authorities which we have cited we find no room for discretion in a situation of this kind. The filing of the petition under the statute ipso facto vacated the order of the director and, accordingly, removed any question of discretion in the action of the court.
We conclude that the writ of mandamus must be denied.
SIMPSON, GOODWYN, MERRILL and MAYFIELD, JJ., concur.
LIVINGSTON, C. J., and LAWSON, J., dissent.