#### J. E. KIRK v. A. J. MAXWELL, Commissioner of Revenue of NORTH CAROLINA.

(Filed 8 January, 1932.)

(For digest see *Nichols v. Maxwell, ante,*38.)

Appeal by plaintiff from *Harris, J.,*at Chambers in Ealeigb, on 12 September, 1931.

Eeversed.

This is an action for judgment enjoining tbe defendant, Commissioner of Eevenue of North Carolina, from revoking and canceling tbe license heretofore issued to and now held by tbe plaintiff, a citizen of this State, to operate on tbe highways of this State, an automobile for tbe transportation of passengers for hire.

Tbe plaintiff now bolds a license heretofore issued to him by tbe Commissioner of Eevenue of North Carolina to operate on tbe highways of this State an automobile for tbe transportation of passengers for hire. He has been engaged in tbe business of operating an automobile for tbe transportation of passengers for hire in this State for more than twelve years. No judgment has been rendered by any court against tbe plaintiff for. tbe recovery of damages for injuries to tbe person or property of another caused by his negligence in tbe operation of an automobile.

Subsequent to tbe enactment 'of chapter 116, Public Laws 1931, tbe defendant, Commissioner of Eevenue of North Carolina, notified tbe plaintiff that unless plaintiff furnished to tbe said Commissioner proof of bis ability to respond in damages for injuries to tbe person or property of another, by filing witb said Commissioner a bond or policy of insurance in accordance witb tbe provisions of said act, tbe said commissioner would revoke and cancel tbe license now held by tbe plaintiff.

Tbe defendant, Commissioner of Eevenue, relied upon tbe provisions of tbe last paragraph of section 3 of chapter 116, Public Laws 1931, for bis power to revoke and cancel tbe license of tbe plaintiff, upon *42plaintiff's failure to furnish proof of his ability to respond in damages in accordance with the provisions of said act. The plaintiff contended that the provisions of said paragraph are not applicable to him, and denied that the defendant under said provisions has the power to revoke and cancel his license.

The action was heard after notice to the defendant to show cause why the temporary restraining order issued therein should not be continued to the final hearing. There was judgment that the temporary restraining order be dissolved and that the action be dismissed.

From judgment dismissing the action, plaintiff appealed to the Supreme Court.

*B. L. McMillan, J. S. Griffin, W. T. Hatch and George Pennell for plaintiff.*

*Attorney-General Brummitt and Assistant Attorney-General Seaioell for defendant.*

*John W. Hester, amicus curice.*

CoNNOR, J.

W'e are of opinion that plaintiff is not included within the provisions of the last paragraph of section 3 of chapter 116, Public Laws 1931, and that for this reason there was error in the judgment dismissing this action. See *Nichols v. Maxwell, ante,*38. Plaintiff is covered and embraced within the provisions of section 1 of the act, and cannot be required by the Commissioner of Revenue to furnish proof of his ability to respond in damages in accordance with the provisions of the act, until he has failed to satisfy a judgment rendered against him for damages for injuries to person or property caused by his negligence in the operation of an automobile on the highways of this State. On the facts found by the court from the pleadings, plaintiff is entitled to judgment in accordance with the prayer of his complaint. The judgment dismissing the action is

Reversed.