In re ROBERT BRATTON, 263 N.C. 70

Bobbitt, J. Petitioner does not challenge respondent’s authority under G.S. 20-17 (2) to revoke his operator’s license for the year beginning April 16, 1963, and ending April 16, 1964, on account of his conviction on March 27, 1963, in the Municipal Court of Winston-Salem, North Carolina, of operating a motor vehicle while under the influence of intoxicating liquor in violation of G.S. 20-138.

The sole question for decision is whether respondent had authority under G.S. 20-16 (a) (1) to suspend his operator’s license for an additional period of one year, beginning April 16, 1964, and ending April 16, 1965, on account of his conviction on December 12, 1963, in the Recorder’s Court of Belmont, of reckless driving in violation of G.S. 20-140. The offense for which petitioner was convicted in the Recorder’s Court of Belmont is not an offense for which, upon conviction, the revocation or suspension ■ of an operator’s license is mandatory. G.S. 20-17; G.S. 20-16.1; G.S. 20-16(a)(1).

Moreover, it is not an offense for which the Department of Motor Vehicles is authorized by G.S. 20-16 to suspend an operator’s license. Respondent contends G.S. 20-16 (a) (1) and petitioner’s said conviction of reckless driving authorized respondent to issue his order of January 7, 1964. The identical question was decided adversely to respondent at Spring Term 1963 in Gibson v. Scheidt, Comr. of Motor Vehicles, 259 N.C. 339, 130 S.E. 2d 679, to which reference is made for a full discussion.

Respondent contends Gibson is distinguishable in that there the Department was proceeding and our decision was based on G.S. 20-28(a). True, the provisions of G.S. 20-28 (

a) were stressed and constituted a basis of decision. G.S. 20-28 (

a) deals solely and directly with the offense of driving while one’s operator’s license is suspended or revoked and contains provisions (see Gibson) bearing directly upon periods of suspension and revocation upon conviction. Even so, the opinion in Gibson discloses that G.S. 20-16 (a)(1) as well as G.S. 20-28(

a) was considered in reaching decision. Thus, in Gibson the judgment of the court below was reversed “on the ground that, absent a conviction of plaintiff for the criminal offense defined in G.S. 20-28(a), the Department’s order of February 23, 1962, was not authorized by G.S. 20-28(

a) or otherwise.” (Our italics). The Department is authorized by G.S. 20-16 (a)(1) to suspend an operator’s license only upon conviction of an offense for which “mandatory revocation of license” is required. According to the stipulated facts, petitioner has not been convicted of such offense. It is noted that the stipulated facts disclose no reason why petitioner may not now be prosecuted and convicted for driving in Gaston County on October 5, 1963, while his operator’s license was revoked, in violation of G.S. 20-28 (a). On authority of Gibson, on which Judge Clarkson presumably based decision, the judgment of the court below is affirmed. Affirmed.