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August 14, 1940

MEALEY, Com'r of Motor Vehicles

The opinion of the court was delivered by: HAND

Before L. HAND, Circuit Judge, and COOPER and COXE, District Judges.

L. HAND, Circuit Judge.

This is a motion made in an action brought to enjoin the Commissioner of Public Vehicles of New York from suspending the plaintiff's driver's license as a chauffeur. The plaintiff is a bankrupt, duly adjudicated on June 21, 1940, but his discharge has not been granted, nor does it appear that the referee has fixed any time under § 12 of the Bankruptcy Act, now section 337, 11 U.S.C.A. § 737, within which creditors must file their specifications of objection. The defendant has filed an answer, admitting all the essential facts upon which the suspension of a driver's license depends under § 94-b of the Vehicle and Traffic Law of New York, Consol.Laws, c. 71. These are that judgment shall be recovered against the licensee for damages for injuries to person or property, resulting from the operation of a motor-car, that he shall not pay the judgment within fifteen days, that the judgment creditor shall in writing ask the clerk of the court where the judgment is entered to forward a certified copy of it to the commissioner of public vehicles, and that the clerk shall do so. The section then directs the commissioner to suspend the driver's license for three years unless he pays the judgment meanwhile, and even if he does, not to restore it within that time, or thereafter, unless he gives the security, required by § 94-c of the act, to protect any whom he may injure in the future.The legislature added a proviso in 1936 that upon consent in writing of the creditor the commissioner might restore the license in any case for six months, and for as much longer thereafter as the creditor's consent remains outstanding; but again only in case the debtor gives the security required by § 94-c (Laws 1936, c. 448). The general plan of the section is apparent. Although no compulsory insurance is made a condition upon granting them, all licenses are issued subject to two conditions: First, that after one accident in which the judgment of a court has found the licensee at fault, his license will be permanently cancelled unless he takes out insurance; and second, that in any event it will be suspended for such part of three years as the judgment remains unsatisfied, unless the creditor consents to its restoration.

 It would have been more regular to proceed by petition in the bankruptcy proceeding, as this "action" is strictly a "controversy" in bankruptcy, ancillary to the main proceeding; but, since the difference is only one of form, we will disregard it. We have already held in Healey v. Murnaghan, 34 F.Supp. 203, that we have jurisdiction under § 11, 11 U.S.C.A. § 29, to enjoin the commissioner; and that, after the clerk has remitted the judgment to him, it is necessary to call together a court of three judges under § 380 of Title 28 U.S.Code, 28 U.S.C.A. § 380. The question is therefore now inescapably presented whether the section is constitutional.

 The bankrupt attacks it upon two grounds: First, that it violates the Fourteenth Amendment; and second, that by impairing the effect of a discharge it conflicts with § 17 of the Bankruptcy Act, 11 U.S.C.A. § 35. The first point presents little difficulty. There could be no possible complaint, if the legislature, instead of requiring all drivers to take out insurance, had required only those to do so, who had been once found guilty of careless driving. The only question that can be raised is whether it contradicts that purpose to add the second condition; i.e. that the license will be suspended for three years unless the licensee pays the judgment. That was the form of the section before 1936, and that we shall consider first. The effect of this was to make the license security for any damage done through the licensee's carelessness, and that was well calculated to increase his care. Indeed -- though long use has accustomed us to its acceptance -- perhaps insurance against liability for personal fault without some attendant means of enforcing care (such as exists, for example, in the case of marine insurance) always serves somewhat to dampen caution; at least reasonable people might think so, and for that reason a legislature might forbid any insurance whatever against the first few thousand dollars of liability for negligent driving so that drivers should have a pecuniary incentive to avoid collision. This section before 1936 had in substance such a result, and for that reason it did not conflict with the Fourteenth Amendment. So a "statutory court" held in Munz v. Harnett, D.C., F.Supp. 158 and there have been several other decisions elsewhere, upholding similar statutes. Watson v. Division of Motor Vehicles of California, 212 Cal. 279, 298 P. 481; Opinion of the Justices, 251 Mass. 617, 147 N.E. 680; Garford Trucking, Inc., v. Hoffman, 114 N.J.L. 522, 177 A. 882; Sheehan v. Division of Motor Vehicles, 140 Cal.App. 200, 35 P.2d 359; State v. Price, 49 Ariz. 19, 63 P.2d 653, 108 A.L.R. 1156; Nulter v. State Road Comm., 119 W.Va. 312, 193 S.E. 549, 194 S.E. 270.

 The argument that the section conflicts with § 17 of the Bankruptcy Act is more plausible. It seems to us at least very doubtful whether, as was said in Munz v. Harnett, supra, D.C., 6 F.Supp. 158, it is here relevant that a discharge does not extinguish the debt, but merely tolls the remedy. Whether the section can be justified or not, certainly power to suspend the driver's license is in effect a means of collecting the debt; it takes away his livelihood until he pays, and its imposition lies in the creditor's hands. The fact that the section adds the sanction that the driver, once found negligent, must in any event give security for the future, does not obliterate this; each condition is independent of the other. Therefore, if § 17 must be read as relieving bankrupts of all sanctions for the collection of dischargeable debts, no matter what other public purpose they may serve, the section is invalid, for the Bankruptcy Act is paramount. We do not think that the section so much impedes the states in their polity. Inability to pay one's debts is not irrelevant in determining one's fitness for many kinds of activity. In Re Hicks, D.C., 133 F. 739, for example, a city ordinance had provided that no one should be a municipal fireman who did not pay his debts, and the court held the ordinance invalid because it conflicted with the Bankruptcy Act.The ruling seems to us plainly wrong; the city might have good reasons for excluding from a position so vital to its welfare men who were so irresponsible that they would not live within the salaries given them. The fact that in doing so, the ordinance necessarily acted as a sanction for the collection of the debts was not material; the city was still entitled to make its own standards for admission to its fire department. The same reasoning applies here. Drivers of motorcars are a selected class, and of these those who suffer judgments for faulty driving are presumably less likely to be safe drivers than the average. Out of this number to discipline only those who cannot pay judgments against them might rationally be a further step in the same direction, for it is not unreasonable to say that among careless drivers, those are apt to be more careless who have no financial interest at stake. It is enough if the standard chosen works well on a whole; legislation is inevitably a more or less rough process, and need aim at no more than average success.

 We have hitherto considered the section as it stood in 1936 before the amendment which gave the creditor power to consent to the restoration of the license, and before he alone could set the machinery in motion. The plaintiff argues that after these amendments at any rate, if not before, the section became only a remedy for the collection of debts. As to the amendment of 1936 he says that, even if it helped to insure safe driving to make the driver's license security for any judgment against him, it did not further that policy to give the creditor power to restore it; for it would be absurd to say that out of those drivers who have been found both negligent and financially irresponsible, those alone should be disciplined who could not persuade their creditors to be lenient.Yet it is doubtful whether the amendment made any very substantial change. The original statute in fact gave the creditor power at any time to restore the license by a complete satisfaction of the judgment; and and the amendment merely added to this by enabling him to withdraw his consent, once given, after six months. In any case, whether that change conflicted with § 17, or could be reconciled with the original scheme, we need not decide for reasons that will appear.

 The commissioner defends the amendment of 1939 by saying that it was a fair implementation of the purpose of the original section, because it merely relieved the clerk of an irksome duty. He had been obliged to find out whenever a judgment had remained unpaid for fifteen days, whether it was for damages due to negligent driving. Instead of this the amendment set up an automatic system depending upon the creditor's interest in starting the clerk into action. This distinction is, however, more apparent than real because under the section as it stood before 1939, the creditor had the same incentive and he was as likely as thereafter to advise the clerk of the judgment, after which the clerk was bound to proceed. The only change was that after 1939 the clerk could not proceed sua sponte, and that the amendment did therefore in theory allow the creditor to hold off the suspension. But again, not only could he have done that before 1939 by a satisfaction of the judgment, but the chance that the clerk would have acted without being prodded by the creditor must have been very remote. This amendment also really made very little change in substance.

 However, we need not pass on the constitutionality of either of the amendments, for it is well settled in New York, as elsewhere, that a statute itself constitutional, is not affected by an unconstitutional amendment; the amendment is brutum fulmen and drops out as though never passed. People ex rel. Farrington v. Mensching, 187 N.Y. 8, 22, 23, 79 N.E. 884, 10 L.R.A., N.S., 625, 10 Ann.Cas. 101; Markland v. Scully, 203 N.Y. 158, 166, 96 N.E. 427; People v. C. Klinck Packing Company, 214 N.Y. 121, 140, 108 N.E. 278, Ann.Cas.1916D, 1051; Buffalo Gravel Corp. v. Moore, 201 App.Div. 242, 248, 194 N.Y.S. 225, affirmed on other grounds 234 N.Y. 542, 138 N.E. 439. This doctrine is really no more than an instance of another doctrine, which happens to be especially favored in New York, that a statute will survive the excision of unconstitutional parts, unless it is apparent that the legislature would not have enacted it with the invalid parts out of it. New York Central & H.R.R. Co. v. Williams, 199 N.Y. 108, 116, 92 N.E. 404, 35 L.R.A.,N.S., 549, 139 Am.St.Rep. 850; People v. Beakes Dairy Co., 222 N.Y. 416, 431, 432, 119 N.E. 115, 3 A.L.R. 1260; People ex rel. Alpha P.C. Co. v. Knapp, 230 N.Y. 48, 60, 129 N.E. 202; People v. Mancuso, 255 N.Y. 463, 474, 175 N.E. 177, 76 A.L.R. 514; Bronx G. & E. Co. v. Maltbie, 268 N.Y. 278, 292, 197 N.E. 281; Gaynor v. Marohn, 268 N.Y. 417, 430, 198 N.E. 13. In the case at bar the clerk did remit a certified copy of the judgment to the commissioner; and it makes no difference whether he did so upon the creditor's demand, or sua sponte. The creditor has made no attempt to restore the license, and may never do so; if he does, the commissioner will have to decide whether or not to comply with his demand. As things stand, we need decide therefore only upon the act as it was in 1936, and we agree with Munz v. Harnett, supra, D.C., 6 F.Supp. 158, that it was valid.

 The temporary injunction will be vacated, and the complaint will be dismissed.


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