Annual Survey of Massachusetts Law
Volume 1969
Article 14
1-1-1969
Chapter 11: Administrative Law
Henry S. Healy
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C HA PTE R 11
Administrative Law
HENRY S. HEALY
A.
COURT DECIS~ONS§1I.I. General. The 1969 SURVEY year did not produce many new decisions in the field of administrative law. However, there were some cases of interest and importance. The Supreme Judicial Court rendered opinions in cases involving, among other issues, agency discretion, rights to administrative hearing, and the extent to which members of the public may compel agency action.l Important legislation was enacted which, if properly implemented, will go far to eliminate the serious problems now facing persons who seek to locate the regulations governing Massachusetts administrative agencies.
§1l.2. Standing to review administtative exercise of discretion. The extent to· which a member of the public may compel judicial re-view of an exercise of administrative discretion was considered by the Supreme Judicial Court in Berman v. Board of Registration in Med-icine.l Members of the family of a person who was the victim of al-leged malpractice by two physicians licensed to practice medicine in the Commonwealth made complaints to the board concerning the con-duct of these physicians and offered to produce witnesses at a board hearing. The board notified the complainants that it would conduct its own investigation. Subsequently, the secretary of the board in-formed the complainants that the board, as a result of its investigation of the matter, had voted not to cite the physicians for a hearing. The brother and co-guardian of the victim then filed a petition for a writ of mandamus, seeking to compel the board to cite the physicians for a hearing on the possible suspension or revocation of their licenses to practice medicine. A demurrer was filed asserting that the petition was insufficient in law, that the act sought was discretionary, and that the petition showed that the board had exercised its discretion. The de-murrer was sustained. On appeal, the Court affirmed the order sustain-ing the demurrer, statsustain-ing that the plaintiff did not have standsustain-ing to
HENRY S. HEALY is associated with the firm of Bingham, Dana Be Gould in Bos-ton, and is a former assistant attorney general of the Commonwealth.
§1I.I. 1 The case of Longo v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 1969 Mass. Adv. Sh. 795, 247 N.E.2d 555, which raises and resolves important questions concerning the power of the Registrar of Motor Vehicles to suspend drivers' licenses prior to a hearing, is discussed at §1l.5 infra.
§1l.2. 11969 Mass_ Adv. Sh. 285, 244 N.E.2d 555.
266 1969 ANNUAL SURVEY OF MASSACHUSETIS LAW
§11.2
require review of an administrative board's decision not to act under its statutory power.
The Court's decision was based on the familiar rule that mandamus does not lie to compel an administrative agency to perform a discre-tionary act. In Flynn v. Department of Public Utilities,2 the Court held that a shareholder was without standing to require by mandamus that the Department of Public Utilities exercise its discretion to in-vestigate a company under its. jurisdiction. Similar results have been reached under many of the federal administrative statutes, such as in
Federal Trade Commn. v. Klesner,3 where the United States Supreme Court refused to allow a private party to compel the Federal Trade Commission to initiate proceedings for unfair competition under Sec-tion 5 of the Federal Trade Commission Act.·
State court decisions in other states are consistent with the Berman
decision.1i Eminent authors in the field of administrative law have drawn an analogy between the power of a district attorney to exercise his discretion to refrain from prosecuting and the power of an admin-istrative agency to refrain from exercising its discretionary powers.s
In its opinion in Berman, the Supreme Judicial Court pointed out the distinction between the case under consideration, where the peti-tion showed that the board had exercised its discrepeti-tion, and those cases where a complaint made by a member of the public had been entirely ignored by the agency. In the latter situation, it is probable that man-damus would lie to compel the agency to consider whether to act, and that the private person would have standing.T The Court noted that
H[i]f there is to be a means whereby, in a flagrant case, a citizen who knows the facts can require a review of ~n administrative board's de-cision not to act under its statutory power, that is a matter for the leg-islature."8
2 802 Mass. 181, 186, 18 N.E.2d 588 (1989). 3280 U.S. 19, 25-26 (1929).
4 See also Dyer v. Securities Be Exchange Commn., 291 F.2d 774, 781 (8th Cir. 1961) (private party cannot compel SEC to make investigation under §18(a) of Public Utility Holding Company Act of 1985): Pan American World Airways, Inc. v. Civil Aeronautics Bd., 892 F.2d 488, 494-496 (D.C. Cir. 1968) (mandamus does not lie at suit of American air carriers to compel CAB to exercise jurisdiC-tion over foreign air carriers conducting inclusive charters from Germany to the United States).
IiSee Potter v. Anderson, 155 Colo. 25, 892 P.2d 650 (1964) (mandamus does not lie at suit of private party to compel revocadbn of liquor license): Louisiana ex reI. Louisiana State Pharmaceutical Assn. v. Louisiana Board of Pharmacy, 158 So. 2d 514 (La. App. 1968) (mandamus does not lie at suit of private prac-titioner): Demers v. Adamson - R.I. - , 281 A.2d 484 (1967) (mandamus does not lie at suit of private person to compel town council to revoke business li-censes).
s Jaffee, The Individual Right to Initiate Administrative Process, 25 Iowa L. Rev. 485 (1940): K. C. Davis, Administrative Law Treatise §4.07 (1958).
7 See Brewater v. Sherman, 195 Mass. 222, 80 N.E. 821 (1907).
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The Berman case is another example of the Supreme Judicial Court's determination to give considerable deference to the exercise of discre-tion by administrative agencies. The practical conclusion to be drawn from the decision is that except in cases where an agency has refused even to consider a complaint, a member of the public cannot compel an administrative agency to initiate proceedings.9
§Il.3. Availability of administrative remedy: Certior,ari: Standard of review: Burden of proof. The case of Boston Edison Co. v. Board of Selectmen of Concord,l and related cases, involved important ques-tions concerning review of administrative decisions of local govern-mental bodies. The cases involved three petitions for writs of certiorari brought by the Boston Edison Company to quash decisions and votes by the boards of selectmen of Concord, Sudbury and Wayland denying Boston Edison permission to run overhead high tension wires, forming part of a high voltage electric transmission line, across certain pub-lic ways in the towns. The denials were based, in part, on aesthetic grounds. The towns contended that certiorari was not available as a remedy. Edison contended that the decisions should be quashed be-cause the selectmen were not permitted to consider aesthetic factors. The petitions were reserved and reported without decision by the sin-gle Justice.2 The Court ruled that certiorari was the proper remedy,
but found that Edison had failed to meet its burden of proof, and or-dered the petitions dismissed.
In considering the availability of certiorari the Court noted: "The requisite elements before certiorari can be available are (1) a judicial or quasi judicial proceeding; (2) a lack of all other reasonably ad-equate remedies; and (3) a substantial injury or injustice from a fail-ure to review."a The Court found that the local proceedings were quasi-judicial, referring by analogy to cases involving administrative decisions on the propriety of railroad street crossings or overpasses.4 The Court then ruled that Edison had no alternative administrative remedies, pointing out that resort to the Department of Public Util-ities would be futile, since the Department lacked jurisdiction except in cases where the utility had already been granted road crossings in
9 Of course, if adjudicatory proceedings are commenced by the agency, it has the power. pursuant to G.L., c. 30A, §1(3)(c), to permit the complainant to inter· vene. If permitted to intervene, the complainant would be a "party" within the meaning of G.L., c. 30A, §1(3), and would be entitled to participate fully in the proceeding, G.L., c. 30A, §§IO, 11, 12.
11.3. 11968 Mass. Adv. Sh. 1361, 242 N.E.2d 868. 2Id. at 1361, 242 N.E.2d at 868.
8Id. at 1363, 242 N.E.2d at 871.
4Id. at 1364, 242 N.E.2d at 871·872; see Cambridge v. Railroad Commrs., 153 Mass. 161, 169·170, 26 N.E. 241, 244 (1891) (decision of local administrative board on application for railroad overpass was quasi·judicial); New York Central R.R. v. Dept. of Pub. Works, !J54 Mass. 332, 237 N.E.2d 285 (1968) (decision on reo quested grade crossing was an adjudicatory proceeding under the Administrative Procedure Act).
268
1969 ANNUAL SURVEY OF MASSACHUSETrS LAWa majority of the communities through which the lines would pass, or through two adjoining communities.!1 The transmission line under consideratiort met neither of these alternative bases of D.P.U. jurisdic-tion. The Court rejected the contention of the towns that only the D.P.U. had power to determine whether the D.P.U. lacked jurisdic-tion.s The Court then turned to the third necessary element - the likelihood of substantial injury. The opinion points out that the ques-tion of substantial injury does not depend on whether the irtterestat stake is a right or a privilege. The use of public ways by utilities is permitted by General Laws, Chapter 166, Sections 21 and 22, sub-ject to local approval. The Court concluded that Edison's interest in whether its statutory power could be exercised was sufficiently sub-stantial to meet the standards required for the availability of review by petition for certiorari.T
Mter deciding that review by petition for certiorari was available, the Court determined that on appeal the burden was on Edison "to establish a record sufficient to indicate the error of the local author-ities."s Finally, the Court concluded that Edison had failed to meet that burden, and that evidence in the record of general inconvenience to the public, including aesthetic considerations, constituted evidence sufficiently substantial to support the decision of the boards of select-men.1I
The case is important because it clarifies the standards required to be met for review of local administrative decisions. It is also important in that it recognizes the importance of· aesthetic considerations in de-cisions of local administrative bodies. As Justice Reardon stated, "The presence of power lines across a public way can, in our view, disturb natural beauty sufficiently to create real annoyance to the public users of the way, particularly in a day when such beauty seems to be a rap-idly diminishing public asset."lO
B.
LEGISLATION§1l.4. Publication of administrative regulations. In recent years it has become apparent to members of the Bar and others who deal with Massachusetts administrative agencies that it is virtually impossi-ble to locate the administrative regulations of many Massachusetts agencies.1 During the 1969 SURVEY year, the legislature enacted
amend-II G.L., c. 166, §28.
81968 Mass. Adv. Sh. at 1365, 242 N.E.2d at 872. TId. at 1S65·1S67, 242 N.E.2dat 872-87l1.
8Id. at 1872, 242 N.E.2d at 876. This allocation of burden of proof was analogized to that applicable on review of decisions of the D.P.U., see Almeida Bus Lines, Inc. v. D.P.U.,lI48 Mass lillI, 205 N.E.2d 556 (1964).
81968 Mass. Adv. Sh. at 1874,242 N.E.2d at 877. 10Id. at 1871, 242 N.E.2d at 876.
§11.4 ADMINISTRATIVE LAW
269
ments to General Laws, Chapter 30A, wWch are intended to remedy this situation. Acts of 1969, Chapter 808, amends Sections 1, 2, 3,5, and 6 of the act, and adds Sections 6A, 6B, and 7 A. The key to the legislation appears in Sections 5, 6, and 6A. Section 5 requires the reg-ulations of each agency to be filed with the state secretary, and it pro-vides that regulations filed in accordance with its provisions shall become effective only
... when filed with and thereafter printed by the State Secre-tary unless a later date is required by any law or is specified by the agency in the regulation; provided, however, that no emer-gency regulation adopted under sections 2 or 3 shall remain ef-fective for longer than three months unless printed by the State Secretary.
Section 6, as amended, states that the state secretary shall have all regulations, required to be filed with Wm, printed, mimeographed, or otherwise reproduced and thereafter compiled, indexed and published in pamphlet, looseleaf or other form. The regulations of each agency must be separately and uniformly compiled and indexed, and monthly, uniform index supplements to each set of regulations must be pub-lished and updated annually. Furthermore, the secretary is required to compile, index and publish "a weekly pamphlet containing the text of notices of public hearings to be held pursuant to the requirements of sections 2 and 3 (of the Administrative Procedure Act) no later than two weeks prior to the date of the hearing or time for presenting information under said sections . . . . " These pamphlets are to be made available to the public at no more cost than the cost of printing and distribution. The key to this section is the provision that "failure to comply with the requirements herein shall be deemed to be a non-compliance with the provisions of said sections and the hearings con-ducted thereunder shall be invalid."
Section 9 of Acts of 1969, Chapter 808, requires that the secretary, within six months of the effective date of the act, compile, index and publish all agency regulations (and adjudicatory decisions describing rates) which were in full force and effect on the effective date of the act. Section 10 of Acts of 1969, Chapter 808, states that "if the State Secret:try fails to comply with the provisions of the preceding section, said regulations become null and void and of no further effect." Sec-tion 6A of General Laws, Chapter BOA, as amended, requires that each agency make at least one copy of its regulations and of the weekly pamphlet of notices available for inspection at each of its offices serv-ing the public. It also requires each agency to publish, and make available for inspection by the public, descriptive statements of the regulations and of the central and field organization, including the location of places and persons where the public can secure informa-tion, make submittals or requests or obtain decisions.
to Be Informed - A Plea for Greater Access to Massachusetts Administrative Rules and Regulations, 54 Mass. L.Q. 65 (1969).
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1969 ANNUAL SURVEY OF MASSACHUSETIS LAW §11.5This legislation makes far-reaching, dramatic changes in the for-merly inefficient and disorganized system of publishing Massachusetts administrative regulations. It is hoped that the state secretary will proceed to carry out the mandate of the legislature as quickly as pos-sible.
C. STUDENT COMMENT
§1l.5. Registry of Motor Vehicles: Acts of 1969. Chapter 637. Late in the 1969 session, the Massachusetts General Court passed an act "further regulating the right of the registrar of motor vehicles to suspend or revoke a certificate of registration or a license."1 This stat-ute (hereinafter, the new statstat-ute) was enacted in response to the Su-preme Judicial Court decision in Longo v. Board of Appeal on Motor Vehicle Liability Policies and Bonds.2 Both the new statute and the Court decision attempted to clarify the meaning of General Laws, Chapter 90, Section 22 (hereinafter, the old statute), which grants to the registrar summary powers to withdraw driver's licenses. This Com-ment will focus on the new statute to determine its meaning, the legal issues raised by its passage, and what may be done by way of remedy. To demonstrate the impact of this new statute, it is necessary briefly to describe the general structure of the motor vehicle laws of the Commonwealth. Statutory precedents of the new statute and ju-dicial commentary on the old statute will also be discussed.
In Massachusetts the General Court is the legislative body with the power to make all laws, including, of course, those concerning the use and control of motor vehicles. The registrar of motor vehicles is the official, appointed by the governor,s who has the responsibility of ad-ministering those laws. The Registry of Motor Vehicles, run by the registrar, is the. agency responsible for the application of these laws. Two major functions that the legislature has delegated to the registrar are the registration of vehicles and the licensing of drivers. The legis-lature has made violations of various motor vehicle statutes criminal acts, with penalties of fines and imprisonment. These statutes are en-forced by the state courts. The registrar, however, has been given a parallel power to "punish" violators of motor vehicle regulations. His main weapons are suspension and revocation of drivers' licensc!s and vehicle registrations. The new statute purports to put certain limits on this aspect of the registrar's power to act. It attempts to explain when, why, and how the registrar can take the registration away from a vehicle or the license away from an individual.
Under the old statute it was not clear exactly what limits the legis-lature meant to set for the registrar. One distinction made under both old and new statutes, however, is that the duty of the registrar to act against a licensee is sometimes mandatory and sometimes
discretion-§1l.5. 1 Acts of 1969, c. 6!!7.
21969 Mass. Adv. Sh. 79!!, 247 N.E.2d 55!!.
§11.5 ADMINISTRATIVE LAW
271
ary, depending on the nature of the offense committed. For instance, the registrar is required by statute to revoke a driver's license after conviction for driving under the influence of alcohol.4 Similarly, he is required to suspend a license after conviction for reckless driving. Ii
Such mandatory actions by the registrar will not be discussed further, since there is clearly no possibility of abuse of discretion where none exists. Problems arise only when an administrator does have discretion and misuses it to the detriment of the individual.
The registrar has been granted the power to act at his volition against a licensee io a number of situations which do not call for mandatory action. This broadens his general power dramatically and creates numerous opportunities for injustice to be done. If the regis-trar were given authority to revoke any license, at any time, for rea-sonable cause, and if before acting he was required to grant a fair hearing, appealable to the courts, there would then be little possibil-ity of abuse. The safeguard of a mandatory hearing, with appeal be-fore withdrawal of a license, would effectively curb any danger of abuse, even if the registrar had unlimited discretion. In the Massa-chusetts statutes, however, the critical sections are those which grant discretionary powers to revoke or suspend without requiring a prior hearing; it is only those which will be considered.
Under the old statute the legislature granted the registrar the power to:
... suspend the license of any operator or the certificate of reg-istration of any motor cycle in his discretion and without a hear-ing ... whenever he has reason to believe that the holder thereof is an improper or incompetent person to operate motor vehicles, or is operating improperly or so as to endanger the public . . . . 6
The language seems to indicate that the legislature intended that the registrar act under this section only when certain conditions were met; conditions such that they lead the registrar to believe that the driver is an "improper" or "incompetent" person, or that he has operated "improperly" or so as to "endanger" the public. Thus, the power of the registrar to act against a licensee without a hearing was somewhat restricted by this section.7 The problem with the old statute, however,
was that it left unclear exactly what were the necessary conditions. The judiciary was thus forced to interpret this language.
In Longo, the petitioner'S driver's license was indefinitely suspended by the registrar on the sole ground that he had "reason to believe that
4. C.L., c. 90, §24(1)(b).
Ii Id. §24(2)(b). The choice between suspension and revocation varies with the seriousness of the infraction. Revocation is more punitive, since the licensee must go through a process of application. A suspended license is automatically re-instated after the penalty period has run out.
I C.L., c. 90, §22.
7 After due hearing the registrar could revoke or suspend for "any cause which he may deem sufficient." Ibid.
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1969 ANNUAL SURVEY OF MASSACHUSETfS LAW§ 11.5
... [the licensee] did improperly operate a motor vehicle."s The regis-. trar acted after he received a report, regis-.&om a police officer that the pe-titioner had been speeding in a thickly settled area and that he had crossed a solid yellow line. The police officer merely gave a warning citation to Longo: there was no arrest, trial, or conviction on the charge. Before providing a hearing on the question of the petitioner's ability to operate a motor vehicle, the registrar suspended his license. The issue presented to the Supreme Judicial Court was whether the action of the registrar suspending the petitioner's license without a prior h,earing, affirmed by the board of appeals, }\tas valid in light of the statutory language. The Court noted that while the registrar had been granted wide discretion as to suspension of licenses,· he may not exercise his discretion arbitrarily or in disregard of the legislative pur-pose. The Court read the statute to require that before the registrar may deprive an operator of his license without a hearing, he must de-termine whether the violation is of a type which indicates the likeli-hood of further improper operation continuing into the near future, and is serious enough to make continued operation by the licensee "an immediate threat to the general safety."9 In a broader state~ent the Court explained that "the statutory purpose seems to prescribe that there should be an· emergency aspect to authorize summary ad-ministrative procedure to supercede ordinary requirements of due process."10 The only ground the registrar had stated for suspending Longo's license was the violation noted above, for which Longo was simply given a warning. The Court apparently found that these facts did not meet the requirements that they saw implicit in the statute, and that the suspension without a hearing could not be sustained un-der Chapter 90, Section 22.
Longo somewhat clarified the meaning of the old statute. In the Court's view the legislat~re intended that before suspending a license without a hearing, the registrar should measure the licensee's acts against specific criteria; that the licensee's operation of his vehicle be in such a manner as to create an immediate and continuing threat to public safety. This reacUng of the statute is pl~usible and perhaps even persuasive. The problem, however, was that the Court's reading was quite different from the interpretation employed by the registrar. The registrar, for many -years, had interpreted his powers to suspend a license without a hearing far more broadly than did the Court in Longo. The citizens of Massachusetts long realized that their licenses could be suspended by the registrar for any infraction of the rules of the road, however minor, and without regard for due process. One Boston newspaper reported the Longo decision in an editorial entitled "The Right to Drive," saying it was "a most welcome decision."l1
S Longo v. Board of Appeal on MotOr :Vehicle Liability Policies and Bonds, 1969 Mass. Adv. Sh. 795, 247 N.E.2d 555, 554.
9Id. at 795, 247 N.E.2d at 554.
10 Ibid.
- - - -
---~----§11.5
ADMINISTRATIVE LAW273
Another leading newspaper enthusiastically headlined: "Court Curbs Registry - Rules Hearing Should Precede Suspension."12 The regis-trar regretted the decision in Longo as it weakened his powers to en-force the law: "it does nothing for highways in Massachusetts . . . . [B]y handicapping the registry in speedy and timely action it may re-sult in dangerous drivers continuing to be operating motor vehicles when they should not be."13 In justification of the procedures used by the registry prior to the Longo decision, he said: "It reverses the ad-ministrative procedure of the Registry of Motor Vehicles in practice for 55 years, and we do not believe that there has been any injustice done."14
After the Court's decision and the registrar's reaction, the legislature hastily enacted the present statute to further clarify the limits of the registrar's power to withdraw a driver's license before a hearing. The new statute replaced the unclear language of the old statute with the phraseology used by the Supreme Judicial Court in Longo:
[T]he registrar may suspend or revoke without a hearing any certificate of registration or any license . . . whenever the holder thereof has committed a violation of the motor vehicle laws of a nature which would give the registrar reason to believe that continuing operation by such holder is and will be so seri-ously improper as to constitute an immediate threat to the public safety.lli
The act goes on to say that the registrar must notify the licensee of the violation for which he has lost his license or registration, and that the registrar must notify the licensee that he has 30 days to demand a hearing.
The major change in this new statute is that it attempts to set dif-ferent criteria by which the registrar may act. The conditioning words are now that the licensee's act be "an immediate threat to public safety," rather than merely that the licensee be an "improper or in-competent person to operate," as in the old statute.
The first question to ask about the new statute is whether the cri-teria embodied in it are stricter than they previously were. If, by the terms of the new statute, the registrar is compelled to justify any sum-mary action by gathering persuasive evidence that the driver in ques-tion is a genuine safety threat, this statute is a welcome change for the better. Unfortunately the words chosen by the legislature do not clearly convey such a reading. One might convincingly argue that if
a driver makes a lane-change without signalling he poses an "immedi-ate threat," while another might with equal force say that the driver must act negligently enough to cause a near accident before the statute would apply. The precise factual pattern necessary to trigger the
ap-12 Boston Herald Traveler, May 7, 1969, at I, col. 5.
13 Boston Herald Traveler, May 8, 1969, at 8, col. 6.
14 Ibid.
111 Acts of 1969, c. 687, §22(a).
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1969 ANNUAL SURVEY OF MASSACHUSETIS LAW§1l.5
plication of the new statute cannot be determined by examining the statute itself. Meaning will be imputed to this statute only when the registrar provides an interpretation. By acting under what he con-cludes are its requirements, the registrar will indicate what he believes is an "immediate threat to public safety." Even: then the public will be given only the registrar's interpretation. The final determination will not be made until a driver feels he has been wronged and takes an appeal to the courts. This uncertainty is the result of poor drafts-manship by the legislature. Had. they set a clearly ascertainable stan-dard in the new statute, both the registrar and the individual driver would benefit by being certain of the scope of the law.
Assuming that the statutory provisions granting the registrar discre-tionary power are presently inadequate, it remains to be seen what improvement may be suggested by giving further attention to this problem. One must first decide what discretionary powers, if any, the registrar should be given in order to function effectively as the admin-istrator of the motor vehicle laws. The thesis of this Comment is that the new statute grants the registrar powers far in excess of his needs and that the power of the registrar to deprive a licensee of a valuable interest should be narrowly and clearly defined to minimize the possi-bility of arbitrary action. In support of this thesis, two major asser-tions will be made. First, a citizen has a constitutional right to have and use a driver's license, and thus his license may not be taken from him except by due process of law. Second, this statute is an unconsti-tutional delegation of legislative powers to an officer of the executive branch, and is therefore void. After evaluating these assertions reme-dial suggestions will be preseJJ.ted.
By examining the long series of decisions involving the nature of a driver's license, it may be seen that the concept of a license as an individual "right" has evolved slowly over the years. Today it is dif-ficult logically to rationalize any other position. As a right, it deserves all the protections afforded by the Fourteenth Amendment against derogation by unfair procedure. Arguments against this position have centered on the proposition that driving is a privilege. This idea of privilege is in tum grounded in the belief that the state has the ex-clusive power to regulate the use of motor vehicles. The source of the state's power to control motor vehicle use was stated clearly by the United States Supreme Court in Hendrick v. State
of
Maryland.16 TheCourt repelled an attack on the power of Maryland to formulate mo-tor vehicle regulations, asserting: "This [requirement of nonresidents to register before operating a vehicle on Maryland highways] is but an exercise of the police power uniformly recognized as belonging to the States and essential to the preservation of health, safety and com-fort of their citizens ..•. "11 This broad concept of the state's right to
§11.5 ADMINISTRATIVE LAW
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take reasonable and necessary measures to ensqre the safety of its cit-izens is a canon of constitutionallaw.18
By extending the Hendrick concept of the police power it can be argued that if the state has a duty to insure the safety of its citizens, then it must be allowed to act to its full extent to carry out its duty. Therefore, if the state were to discover that motor vehicles were unsafe, it could totally prohibit their use. If the state can totally prohibit the use of motor vehicles, then anything less than total prohibition amounts to a gratuitous concession made by the state to the individual. Thus, the use of a motor vehicle is a privilege granted by the state, and "the state may attach its own conditions to whatever it gives."19 Measuring the new Massachusetts statute against this doctrine, one could argue that since granting the license is a form of privilege to the individual, he has no right to complain because the state did not also grant the greater privilege of a right to a hearing before suspension.
A mechanical use of the police power in evaluating state statutes was embraced by many courts in early automobile cases.20 The most widely followed decision on this point is the 1913 case of People v. Rosenheimer.21 The New York Court of Appeals reasoned that driving an automobile was not an ordinary use of the highways. Since use of automobiles results in certain dangers to the public, the legislature could completely ban driving on the highways. This was based on the proposition that operating a motor vehicle "[is] a privilege ... and not a right, and that in a case of a privilege the legislature may prescribe on what conditions it shall be exercised."22 The difficulty with the court's analysis is that it considered automobile driving an extraor-dinary use of a public facility. Since modem roads are specifically designed for the use of motor vehicles, the logic of the decision is no longer sound.
A Massachusetts case handed down a few years after Rosenheimer reflects the same style of thinking. In Burgess v. Mayor and Aldermen of Brockton,23 the petitioner held a license allowing him to operate a private bus line within the city. His license was revoked under a provision of the city ordinances which permitted city authorities to revoke this license without hearing, for any cause, so long as they used reasonable discretion. The Supreme Judicial Court upheld the ordi-nance by reasoning that the rights of a licensee were wholly de
pen-18 Bibb v. Navajo Freight Lines, 1159 U.S. 520, 5211-524, (1959); Southern Pacific v. Arizona, 1125 U.S. 761, 7811 (1945); South Carolina State Highway Dept. v. Barnwell Bros .• Inc .• 11011 U.S. 177. 187 (19118).
19 Note. Right to Counsel in Public Welfare Hearings. 48 B.U.L. Rev. 468. 475
(1968).
20 In re Berry. 147 Cal. 5211. 82 P. 44 (1905); State v. Mayo. 106 Me. 62. 75 Atl. 295 (1909); Ex parte Kneedler. 2411 Mo. 6112. 147 S.W. 9811 (1912).
21209 N.Y. 115. 102 N.E. 5110 (19111). 22Id. at 121. 102 N.E. at 5112.
23255 Mass. 95. 126 N.E. 456 (1920).
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1969 ANNUAL SURVEY OF MASSACHUSETIS LAW§11.5
dent on the terms of the ordinance under which the license was granted, and that his rights can rise no higher than those terms. Since the ordinance did not specifically grant a hearing; the licensee had no right to a hearing. The assumption made by the Court was that the licensee had absolutely no right to operate a bus within the city. Since the city had granted a privilege to the bus operator, the city could withdraw the privilege without consideration of due process.
The problem with the privilege doctrine is that it is too simplistic to be fairly applied to realities of present highway use. There is strong authority which states that today driving is not a bare priVilege, but rather an individual right which may not be denied except by due process of law. Other authority holds that the privilege concept does not apply to driver licensing at all, and that the real question is whether the statute is a reasonable exercise of the police power of the state. Courts in other states . have used both of these approaches, often in conjunction, in finding unconstitutional various statutes granting the registrar discretionary powers.24
The New York appellate courts, in numerous decisions since the in-fluential Rosenheimer case, have substantially changed the status of drivers' licenses. A license is now considered property in New York, requiring all the protections of due process before it may be revoked or suspended. This concept grew out of a series of cases, beginning with People v. Marinelli.21S There, the defendant was charged with leaving the scene of a fatal accident without reporting it. He peti-tioned to remove the action from the justice court so that the charge coul~ be prosecuted by indictment. The court granted the removal on the ground that a property right of the defendant was involved.
If convicted he stood to lose his driver's license, which is a property interest. He thus had a right to a jury trial. The court took into con-sideration the fact that the defendant was a truck driver and that his family's welfare depended directly on his maintenance of a license.
The value of a license to the individual was extended beyond its mere economic value in another New York case, Wignall v. Fletcher.26 There an 82-year-old man lost his license after the highway adminis-trator ordered him to take a physical examination. He passed the physical, but failed' a road test which :was given in conjunction with it. The New York Court of Appeals held that the plaintiff had not been adequately informed of the type of test he was expected. to take. Thus, the revocation procedure did not meet the standards of due process. Although there was no evidehce that the elderly man had any economic interest in his license, the court said that a license "is of
1I4 People v. Nothaus, 147 Colo. 210, 868 P.2d 180 (1961); State v. Kouni, 58 Idaho 498, 76 P.2d 917 (198.8); Thompson v. Smith, 155 Va. 867, 154 S.E. 579 (19l10). Cf. Haswell .v. Powell, lI8 :Ill. 2d 161, 2110 N.E.2d 178 (1967); Berberian v. Lussier, 87 R.I. 226, IlI9 A.2d 869 (1958).
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tremendous value. to the individual and may not be taken away except by due process."27
In addition to being broadly viewed as something of value, a license has been specifically called a property right in New York. In Moore v. Macdu/J,28 a traveling salesman pleaded guilty to a charge of drinking while driving in Ontario. The New York commissioner was notified of this conviction, and he revoked the plaintiff's license. The court reversed the commissioner's order because the Ontario certificate of conviction failed to specify the offense for which the plaintiff was convicted, and because the record did not indicate that the accused had counsel. One of the reasons that prompted the court to consider this case was that, "The possession of a license to drive is a vested property right."29
A First Circuit Court of Appeals decision in Wall v. KingBo has ex-tended the definition of a driver's license still further beyond that of a privilege. In Wall, the plaintiff brought a tort action against Mas-sachusetts' registrar for depriving him, without due process, of his constitutional right to operate an automobile. The registrar had suspended Wall's license on the ground that it had been reported to him that Wall had driven after drinking. After losing intermediate appeals on the suspension, Wall was successful in the Supreme Judi-cial Court.Sl The Court held that under the facts stated in the notice the registrar was not justified in suspending Wall's license. Wall then sought to recover damages from the registrar for the injury caused him. He brought suit in federal court under 8 U.S.C. §4382 for the deprivation of rights secured by the Constitution. The court reasoned that what Wall may have been deprived of was a "liberty," as that term is used in the Fourteenth Amendment:
... it is unimportant whether . . . a license to operate motor vehicles may properly be described as a mere personal privilege rather than a property right. We have no doubt that the freedom to make use of one's own property, here a motor vehicle, as a means of getting about from place to place, whether in the pur-suit of business or pleasure, is a "liberty" which under the Four-teenth Amendment cannot be denied or curtailed by a state without due process of law.ss
The court went on to hold, however, that even a liberty is sometimes subject to reasonable regulation by the states and that here the
regis-27 Id. at 441, 103 N.E.2d at 730. 28!lO9 N.Y. 35, 127 N.E.2d 741 (1955). 29Id. at 38, 127 N.E.2d at 742-743.
80206 F.2d 878 (1st Cir. 1953), cert. denied, 346 u.s. 915 (1953).
81 Wall v. Registrar of Motor Vehicles, 329 Mass. 70, 106 N.E.2d 425 (1952). 828 U.S.C. §43, now 42 U.s.C. §1983, is derived from the Civil Rights Act of April 20, 1871, c. 22, §l, 17 Stat. 13.
88 206 F.2d at 882.
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trar had acted reasonably. Nevertheless, the holding was clearly a great advance in the judicial concept of the status of a driver's license. Since it was termed a "liberty" rather than a mere privilege rescind-able at the will of the sovereign state, the license is much more strongly protected from arbitrary action.
The only comment by the Massachusetts Supreme Judicial Court on the right/privilege issue came as dicta in Ullian v. Registrar of Motor Vehicles.84 The petitioner sought a writ of certiorari from the Court to quash an order of the registrar suspending his license for seven days. UlIian had appealed from the initial decision of the regis-trar to the administrative appeal board,311 and that action was still pending. The Court held that UlIian's petition would be dismissed for lack of standing, since Ullian had not exhausted all the adminis-trative remedies available. One of Ullian's unsuccessful arguments was a challenge to the sufficiency of the administrative remedy because the action of the registrar was not stayed during appeal. The Court dismissed this argument citing cases where temporary deprivation of the right to use property or to earn a living had been permitted. The Court said that "assuming in favor of the petitioner that her right to operate an automobile upon the public ways is a right of equal dig-nity with those just mentioned and that it is more than a conditional privilege . . . ,"36 the procedure followed was nevertheless sufficient
to protect UlIian's rights. Whether or not a driver had a right to op-erate a motor vehicle was certainly not at issue in this case. The Court only conceded this point to the petitioner so that it could demonstrate that even if this extreme view prevailed, the holding would still go against the petitioner. While this case is scarcely authority for the proposition that driving is a right in Massachusetts, it at least indi-cates that the concept ~s not entirely foreign to the Court.
This group of decisions illustrates that the courts have gradually added substance to the concept of a driver's license as a right. A li-cense has been viewed as something of economic value to a profes-sional driver, of general value to any individual as a vested property right, or as a constitutionally protected liberty. This broadening of the concept of a driver's license would be trivial, however, if the end was simply a new definition. The importance of this new definition is that, when accepted, cases in which it is applied may well reach different conclusions. If a court holds that a license has the same status as an individual liberty or as a property right, its removal can no longer be treated lightly by state administrators. Arbitrary or whim-sical action in derogation of one's right to hold a license is a violation of the well-developed principles of due process. The action of a regis-trar in suspending or revoking a driver's license must, under the new
84325 Mass. 197, 89 N.E.2d 780 (1950).
811 At that time the appeal board was a part of the Department of Public Works. It is now a separate body, the Board of Appeals on Motor Vehicle Liability Policies and Bonds. G.L., c. 26, §8A.
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standards, be measured against the high requirements of procedural due process.
Once a court has established that a citizen has a right to drive, the focus of attention in any case shifts to the manner in which that right is limited by the statute. The question now can be raised as to whether procedural due process is afforded under the new statute. If the statute purports to grant to the registrar powers which may infringe upon individual rights as represented by the license, then the statute should be struck down. This approach was employed by a New York court in Schutt v. Macduff.aT The commissioner of motor vehicles had revoked Schutt's license under an implied consent statute when Schutt had re-fused to submit to a blood-alcohol test. The statute permitted a police officer who had reasonable grounds to suspect a driver of being intox-icated to order the test, but it did not require that an arrest be made prior to the test. The commissioner could revoke a license without a hearing if the driver refused to submit to the test. The cour,t held that while the state undoubtedly has the power to regulate highways and to put conditions on their use, any restrictions must contain the fair safeguards required by the due process clause. The specific objec-tions of the court were two. First, since the police were not required to make an arrest before ordering the test, they were not acting within the processes of law, and yet they were imposing the force of law on the driver. Second, the statute permitted the commissioner to revoke a license on the mere hearsay evidence of an unsworn policeman's re-port, and without a hearing. The court based its decision on a realistic appraisal of the importance of a driver's license in modern life. The court noted that today the motor vehicle is a "necessity"; that many families' economic welfare depends on use of the highways; that tax-payer's dollars builds highways and all are entitled to use them, sub-ject to reasonable regulation; and that a driver's inalienable right to "liberty and the pursuit of happiness" will be curtailed by unreason-ably keeping him off the road.as They thus held that "the right of a citizen to drive a motor vehicle upon the highways is to be safeguarded against the whim or caprice of the police administrative officers."a9 While it may seem to have been superfluous for the court to catalogue the various factors that combine to make a driver's license important to each individual, this exposition may have been useful in persuad-ing those who were wont to hold to the notion of its bepersuad-ing merely a privilege. The court's emphasis on the practical results of license with-drawal rather than on legal theories shows sensitivity to the danger of allowing over-intrusion by governmental agencies into vital aspects of an individual's life. In any case, Schutt does provide a rational anal-ysis of a driver-licensing statute. Summarizing the reasoning of the court, first an assumption is made that the licensee has a valuable
8T 205 Misc. 43, 127 N.Y.s.2d 116 (Sup. Ct. 1954).
8S Id. at 55; 127 N.Y.S. 2d at 127. 89Id. at 54, 127 N.Y.s. 2d at 127-128.
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§11.5
right in holding his license. Second, it is recognized that the state has a real interest in protecting the general public from misuse of the highways. Next, the statute is examined to see that it is a reasonable method of attaining the state's objective. And last, the statute is ap-plied to the individual case to see whether it provides a fair and ad-equate safeguard for the licensee's rights; that is, whether it provides due process of law.
The discussion has thus far focused upon the rights of the individ-ual versus the authority of the government. Another focus is the abil-ity of one division of government to delegate its powers to another. Essentially, this argument is that since the legislative and executive branches of government are separate, any delegation of powers from one to the other is unconstitutional. Since the new statute gives an officer of the executive branch part of the powers that are rightfully the legislature's, the new statute is arguably unconstitutional.
Article 80 of the Massachusetts Declaration of Rights40 prohibits
such a transfer of power. It states: "In the government· of this com-monwealth . . . the executive shall never exercise the legislative and judicial powers, or either of them ... to the end it may be a govern-ment of laws and not of men." As mentioned previously, the registrar, appointed by the governor, is an officer of the executive branch. Un-der the new statute the legislature has granted to the registrar the power to decide who is driving so dangerously as to "constitute an immediate threat to the public safety." By granting this power to the registrar, the legislature seems to have delegated part of its own pol-icy-making function to an officer of the executive. 1£ this is so, the leg-islature has acted unconstitutionally.
The doctrine that legislative functions may not be delegated to the executive is based on the premise that major policy decisions should be grounded in the consent of the people. Since consent is the product of compromise, it can be arrived at only through representation. The legislature comprises a broader cross section of interests than does any one administrative agency and it is more likely to be representative of the consensus of the governed. Hence, the legislature should main-tain the decision-making power to the maximum extent feasible.41 The
theory of the non-delegability ·of. legislative functions is a part of both the United States and Massachusetts constitutions. However, the ·prac-tice at both levels of government has been to allow the legislature to
delegate a substantial number of its duties to various administrative agencies of the executive, so long as it does not delegate any of its "power." The limh of permissible delegation is illustrated in varidus decisions by the Court. In the federal government, the courts have been willing to allow Congress to make quite broad grants of decision- or law-making power to federal boards and agencies. In Yakusv. United
40 Mass. Const. pt. 1. art. XXX.
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States,42 the question of over-delegation arose when Congress pennit-ted a price administrator to set maximum fair selling prices for nu-merous commodities in the interests of national defense. Although the statute clearly gave broad powers of decision to the price adminis-trator, the United States Supreme Court held that the powers granted were not excessive. The Court explained that Congress need not choose the method of execution of a policy that delegated the very least amount of power needed by the administrator to do his job; Congress could delegate more than the absolute minimum. The del-egation would be excessive only if the lack of standards for the ad-ministrator's action was so great that it would be impossible for either the public or the Court to tell whether or not the will of Congress was being obeyed. More recently, the United States Supreme Court has pennitted even broader grants of power to federal administrators.43
Delegation, however, is still at issue in the state courts. Various courts cite violations of the non-delegability principle as justification for striking down legislation that offends them as tending towards discriminatory administration44 or restricting rights to use property
or to practice a profession.411 In Massachusetts, the general outline of
the non-delegation doctrine was set out in Commonwealth v. Town of Hudson.48 In this case the legislature gave the Department of Public Health the wartime power to order towns to improve their local water supply facilities on a finding by the Department that "it is necessary ... for the protection of public health . . . . "47 The Supreme Judicial Court upheld this delegation as proper, saying:
It is true that the general power to legislate cannot be delegated . . . . But one of the exceptions to or qualifications of that doctrine is that the Legislature may delegate to a board or an individual officer the working out of the details of a policy adopted by the Legislature.48
This distinction between the "general power to legislate" and the "working out of the details" seems to be the balance point of any ar-gument against a statute on grounds of delegation of authority. The rationale behind such decisions is that the Court realizes that the leg-islature itself simply cannot handle the course of continuous decision-making that is required to administer adequately a complex program such as registration of motor vehicles. An example of this is seen in McNamara v. Director of Civil Service.49 In McNamara, the Supreme
421121
u.s.
414 (1944).43 Arizona v. California, 11711
u.S.
546 (19611); FCC v. RCA Communications, Inc., 1146 U.S. 86 (19511).44 Jaffe at 76. 41i1d. at 77.
481115 Mass. lIl1S, 52 N.E.2d 566 (19411). 47Id. at 1I116, 52 N.E.2d at 569. 48Id. at 1I41, 52 N.E.2d at 571. 4911110 Mass. 22, 110 N.E.2d 840 (1955).
282
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Judicial Court noted that the legislature had stated that one of the objects of the statute in question was to give preference to veterans in civil service examinations. This was an old policy and there was a history of what was considered fair in setting standards. Due to the intricacies of administering the varety of examinations that were given under this statute, the Court held that it was a practical necessity that the director be allowed to set up his own grading system in order to implement the policy of the legislature. GO These two cases illustrate
the criteria to which the Supreme Judicial Court has looked before it has been willing to declare a delegation of power reasonable. The statute must be designed so that the administrator is only allowed to "fill in the details" when it is a "practical necessity." In these factual situations, the actual policy-making power has always been retained by the legislature.
The type of legislation which the Court has found to be an unjus-tified delegation of authority is that which is designed to allow the legislature to evade its responsibilities, or that which gives the admin-istrator a breadth of action admitting of the possibility of discrim-inatory enforcement. The first fault is illustrated in a 1956 Opinion of the Justices to the Senate.51 Under consideration was a proposed stat-ute which would grant to the Fish and Game Board the discretionary power to expend all of the revenues that it collected each year and to operate without legislative appropriation. Departments of the state government are normally required to return all revenues to the Gen-eral Fund, to be appropriated by the legislature. The duty of the leg-islature to appropriate all funds derives from the state constitution,1i2 which requires that all money received by an agency of the Common-wealth, from any source, be paid into the state treasury, of which the legislature is the guardian. In the advisory opinion, the Court held that by granting the board the power to withhold revenue, the legis-lature was delegating its own powers of appropriation to an adminis-trative agency. This delegation was held to violate Article 30 of the Declaration of Rights and was therefore unconstitutional.
Another case in which the Court spoke on deleg~tion is
Common-wealth v. Diaz.lSs The defendant challenged a statute which granted the airport commissioner authority to make reasonable regulations for governing the use of Logan Airport and to attach penalties for their violation. The maximum penalty could not exceed $500 per violation. The Commissioner decided that all violations, however minor, would be given the full $500 fine. The defendant was a cab driver who had walked more than six feet away from his cab while it was waiting in the pick-up line. This was a violation of airport rules, thus evoking the uniform $500 fine. The Supreme Judicial Court held that the stat-ute in question was invalid, not because it delegated too much power
110 Id. at 27.
no
N .E.2d at 844.1S1334 Mass. 716. 134 N.E.2d 892 (1956).
1S2 Mass. Canst. amend. art. LXIII. §I.
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to the commISSIoner, but because the commissioner was not using proper discretion in applying it. The Court decided that the intent of the legislature was not to impose such a high, uniform fine. The Court also said that the power granted to the commissioner by this statute, while not an over-delegation, "goes to the very verge of what is per-missible."1i4 Apparently, the delegation itself was saved by the fact that the maximum penalty which could be imposed was a reasonable pen-alty for some of the serious safety violations that could occur at an airport. The Court indicated a willingness to balance the severity of the penalty against the damage done by the infraction.
When the Opinion of the Justices and Diaz are considered together, a pattern may be discovered. In the first opinion, the Court used the principle of non-delegation in its traditional manner; the statute was found to actually hand over to an executive agency a real power that the legislature had traditionally exercised, and therefore the statute was unconstitutional. Diaz shows that the Court realized that the non-delegation doctrine can be used to invalidate a statute for a quite dif-ferent reason. Over-delegation can be used as a basis to throw out a law that gives an administrator so much power that he has the ability to do real damage to people, either by discriminatory or overzealous enforcement. This may be inferred from Diaz because of two factors. First, the Court said that the delegation went to the limits of what was permitted, when all that was necessary to dispose of the point was to state that there was no over-delegation. Second, the Court held for the defendant on a ground that he had not even raised, indicating the Court's strong desire to grant relief when the facts show an adminis-trator overstepping his authority.
Both of these arguments, derived from the non-delegation doctrine, may be used to attack the new license-suspension statute. Since the language that conditions the extent of the registrar's power to act un-der this statute is very vague, it can be shown that the legislature has granted the registrar the power to decide these limits for himself. The registrar has been given the authority to legislate what powers the reg-istrar may have. This is exactly the type of delegation that Article 30 forbids. The second argument, as foreshadowed by Diaz, is that be-cause of the unclear statutory language the registrar can do severe harm to an individual by withdrawing his license in situations where it is possible that the legislature did not intend that this result occur; the registrar may act arbitrarily under this statute and it will be im-possible to ascertain whether the will of the legislature is being obeyed.
Although there have been no Massachusetts decisions in which these arguments have been used to challenge a motor vehicle statute grant-ing discretion to the registrar, other state courts have ruled on this argument. South Carolina State Highway Dept. v. HarbinlilS considered a statute which gave the highway department authority to suspend
MId. at 5l10, 95 N.E.2d at 669. 1111226 S.C. 585, 86 S.E.2d 466 (1955).
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licenses for cause satisfactory to it and to promote rules for adminis-tering the motor vehicle act. The department had developed a simple point system for weighing the seriousness of various infractions, but this system had not yet been ratified by the legislature. The depart-ment suspended the defendant's license under this point system. The South Carolina Supreme Court held that the legislat\l~e might allow an agency to fill in the details of its expressed policy, but the statute in question did not express any policy clearly enough for the depart-ment to say what it was following. It found that "in the grant of this authority, there is no standard except the personal judgment of the administrative officers of the Department."118 This, it determined, was insufficient. In Harvell v. Scheidt,II7 the statute at issue allowed the highway commissioner to suspend a license without a hearing if the licensee was a habitual violator. Here the department had de:veloped an informal point system for internal use by its inspectors and officers. No standard however had been set by either the commissioner or the legislature to fix the number of points needed to classify a violator as "habitual:' The North Carolina Supreme Court held the statute in-valid for delegating too much power to the commissioner. It stated that the legislature may delegate the power to find facts or to deter-mine when certain situations exist on which operation of the law is made to depend, but that the legislature may not vest in an agency the power to apply or withhold application of law in its absolute discre-tion. In both these cases the registrar was given very broad authority by the legislature, so broad that the courts felt compelled to remind the legislature that policy-making was its special competency, and that this responsibility could not be passed on to an administrator. In each case tht. registrar had attempted, by setting up a point system, to pro-vide clear standards to guide his
own
application of the law. Never-theless, the court in each case held that the delegation was improper and could not be saved even by such a device.The same type of problem that occurred in these two cases may well arise in the Massachusetts courts asa result of the enactment of the new statute. Even if the registrar does set up some standardized cri-teria for the guidance of his department, and d<;>es his best to admin-ister the statute fairly, he still will be acting as a legislator rather than merely as an administrator. In order to suspend or revoke drivers' li-censes under the new statute, the registrar will first have to formulate the policy to guide his actions. Then he must proceed with his right-ful task of finding the required facts and ultimately applying the law. Acting thusly, the registrar is fulfilling a legislative, rather than an administrative function.
The evil of delegation. of legislative authority is that the recipient of this grant of power, unlike the legislature, has no compulsion to use it in the public interest. As an appointee of the executive, the
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istrar cannot be reached by the citizens through the ordinary political channels. The policy that he sets may not reflect the wishes of the pub-lic, and yet it will be enforced upon them. In effect, the public is dis-enfranchised when the registrar is allowed to act as he may under the new statute. It may be fairly said that the new statute does not meet the needs of either the registrar or the licensees of this state. The li-censees deserve to be insured of the continued enjoyment of their right to use the highways. This right should not be endangered by a statute which fails to incorporate the full breadth of deserved due process protection. Under the new statute the registrar may force a driver off the roads for any cause which he could construe to indicate that the licensee is an "immediate threat to the public safety." Since no intelligible limits can be placed on these conditioning terms, the registrar may, in effect, act at his unbridled discretion to deprive a driver of a Fourteenth Amendment "liberty." Also, while giving the registrar wide discretion, this statute probably will not help him ad-minister the motor vehicle laws. This discretion may well become a burden because the registrar will be forced to set policies for his own guidance and then to act within them. Even the registrar who acts most arbitrarily will have to make decisions that are more properly made by the legislature. Also, because of the vagueness of the lan-guage of the statute, it can be expected that many appeals will be taken from the registrar's decisions. As these appeals proceed through the courts, time and money will be wasted arguing the multiple mean-ings discoverable in the statute. It would have been far better for the registrar, as well as the licensees, had the legislature clearly delineated the bounds of his powers, so that he could act with confidence and authority.
Three methods of curing the defects of the new statute will be dis-cussed, the last of which seems to recommend itself for adoption in Massachusetts. The easiest approach would be to revoke the statute and to provide no replacement. This would mean that no license or registration could be suspended or revoked except for those offenses that now require mandatory action; the driver would have to be con-victed of committing one of the relatively few serious infractions be-fore his license could be withdrawn. Even if he committed a long series of less serious offenses, the registrar would be powerless to act. Such a result would be antithetical to the rationale behind maintaining and monitoring drivers' records. After a driver has committed a large num-ber of minor violations, it may be presumed that he will commit one more, which may lead to serious injury. For the safety of himself and other drivers, he should be taken off the road. It is obvious that cor-rection by abolition of the statute would not be desirable.
The second possibility would be to merge paragraph (a) of the new statute into paragraph (b). If this were done, the registrar would be required to provide "due hearing"
