Silver v. McCamey

EDGERTON, Circuit Judge. On March 1, 1954 the plaintiff, then a licensed taxicab operator, was arrested and charged with two crimes of rape, one December 23, 1953 and the other March 1, 1954. Revolver ammunition and a bayonet were found in his cab. He was tried and acquitted on the March 1 charge. While the December 23 charge was pending, the Board of Revocation and Review of Hackers’ Identification Licenses directed him to answer charges that he was not of proper character to operate a public vehicle because of the ammunition and weapon and because on December 23, 1953 he “did sexually assault and rob a citizen at gun point”. On June 4, 1954 the Board held a hearing on these charges and informed the plaintiff that “after a review of all facts in the case” it had voted to revoke his license to operate a cab. He was afterwards tried, and acquitted, on the December rape charge. The plaintiff sued to require the Board to restore his license. The District Court granted the injunction and the Board appeals. The Board relies on a statute that authorizes the Commissioners of the District of Columbia “to revoke any license * * * when, in their judgment, such is deemed desirable * * D. C.Code (1951) § 47-2345, 47 Stat. 563. But “statutes should b.e interpreted, if explicit language does not preclude, so as to observe due process * * 1 We agree with the District Court that due process is not observed if an accused [875] person is subjected, without his consent, to an administrative hearing on a serious criminal charge that is pending against him.2 3 His necessary defense in the administrative hearing may disclose his evidence long in advance of his criminal trial and prejudice his defense in that trial. It does not follow, as the Board contends, that the public must be left without protection against an accused hacker pending his criminal trial. (1) The Board may hold a hearing on other charges and, if it finds them sufficient, revoke his license. But we do not know that the Board thought the other charges against this plaintiff were sufficient. (2) We agree with the District Court that nothing prevents the Board, while a criminal charge is pending, from holding a hearing and taking action on the question whether, because it is pending, a license should be temporarily suspended. Such temporary suspension is in some respects like a denial of bail. Though each is exceptional, each is sometimes necessary to the protection of the public. Immediate revocation of a license is not. Since neither denial of bail nor suspension of a license involves a finding of guilt or a permanent loss of employment, the hearing involved in either need not require disclosure of defenses to the criminal charge. Accordingly temporary suspension of a license, unlike revocation, pending a serious criminal charge, need not be inconsistent with due process. Our affirmance of the District Court’s judgment is without prejudice to any future proceedings to revoke the plaintiff’s license. We do not share the District Court’s view that the Board cannot retry a criminal charge on which the plaintiff has been tried and acquitted in court. “That acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based has long been settled.” Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 632, 82 L.Ed. 917. For at least two reasons, res judicata does not apply. (1) Acquittal may mean only that material facts are not proved beyond a reasonable doubt. It may still be possible to prove them sufficiently for civil and administrative purposes. (2) Asserted facts that cannot be proved by any standard, and are material in the criminal prosecution, may be immaterial in the administrative proceeding. Misconduct need not amount to rape in order to show that a man is unfit to operate a taxicab. Affirmed. Footnotes [1] Mr. Justice Frankfurter, concurring, in Joint ,Inti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 165, 71 S.Ct. 624, 645, 95 L.Ed. 817. [2] Ex parte Wall, 107 U.S. 265, 287, 288, 2 S.Ct. 569, 27 L.Ed. 552, is not to the contrary; a lawyer was disbarred for an offense that was criminal, but no criminal charge had been brought against him. And bis denial, in the disbarment proceeding, “was really equivalent to an admission of the substantial matter of the charge.” 107 U.S. at page 275, 2 S.Ct. at page 578.