Appeal, No. 148, Jan. T., 1950, from order of Court of Common Pleas of Berks County, Aug. T., 1950, No. 187, in case of Commonwealth of Pennsylvania v. Anton M. Wagner. Order affirmed.
Randolph C. Ryder, Deputy Attorney General, with him Frederick J. Bertolet and T. McKeen Chidsey, Attorney General, for appellant.
Albert S. Readinger, with him Raymond K. Hess, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE JONES
The defendant was arrested by a State policeman for driving an automobile on a State highway at a speed of 65 miles per hour. The officer made an information before a magistrate for the traffic violation involved and the defendant paid a fine and costs for the offense. Thereafter,
the Secretary of Revenue, acting pursuant to the authority conferred by Sec. 615(b) 2 of The Vehicle Code, as amended (Act of May 1, 1929, P.L. 905, 75 PS § 192(b) Pkt. Part), cited the defendant and, following a hearing, suspended his operator's license for a period of ninety days because of his above-mentioned violation of Sec. 1002(b) 6 of The Vehicle Code, as amended (75 PS § 501 Pkt. Part). The defendant appealed the suspension to the Court of Common Pleas of his county and the court entered upon a hearing of the matter as provided by Sec. 616 of The Vehicle Code, as amended (75 PS § 193 Pkt. Part). Subsequently, the court filed an opinion and entered an order sustaining the appeal, the effect whereof was to revoke the suspension and reinstate the operator's license. The Commonwealth has appealed.
From the evidence adduced at the hearing on the appeal, the learned court below found that the appellee had operated his automobile on a State highway at the time alleged at a speed in excess of 50 miles an hour; that there were no aggravating circumstances attending the infraction, such as carelessness or recklessness in the operator's control of the vehicle; that the highway was wide; that the weather was clear and dry; that, at the time of the occurrence, there was little other traffic on the highway; that the petitioner had driven approximately 35,000 miles annually for each of the past nineteen years in his occupation as a travelling salesman and had never before been charged with speeding; and that he had need for his operator's license in his work.
It is the Commonwealth's contention that, on the appeal from the suspension of the petitioner's license, the power of the court of common pleas was restricted, by the very words of the Code (Sec. 616), "... to [determining] whether the petitioner is subject to suspension of operator's license... by the secretary under the provisions of this act", and that, the court below having found that the petitioner had violated the Code in the
manner alleged, there was nothing left for the hearing court to do but to sustain the Secretary's suspension of the petitioner's license. Unfortunately for that contention, it was ruled by this court a number of years ago that the original requirement of Sec. 616 of The Vehicle Code of 1929 that the hearing court "... determine whether the petitioner is subject to suspension of operator's license... under the provisions of this act [emphasis supplied]" meant that "... the court [was] to hear de novo the witnesses of the Commonwealth and the witnesses of the licensee, and, from the testimony taken,... determine anew whether the operator's license should be suspended" (Emphasis supplied): Commonwealth v. Funk, 323 Pa. 390, 399, 186 A. 65 (1936). Thus, the ...