# Garrett v. Watson > Supreme Court of Oklahoma · July 21, 1959 · 342 P.2d 560 URL: https://www.frixlaw.com/law-library/cases/9545707 ## Case - **Full name:** Elizabeth R. GARRETT and Tom W. Garrett, Jr., Plaintiffs in Error, v. Dr. O. Alton WATSON, T. Ray Phillips, Jr., Ralph Adair, Ben Gullett, Board of County Commissioners of Oklahoma County, Defendants in Error - **Court:** Supreme Court of Oklahoma - **Decided:** July 21, 1959 - **Citations:** 342 P.2d 560; 1959 OK 144; 1959 Okla. LEXIS 328 - **Precedential status:** Published - **Opinion:** Dissent by Jackson - **Judges:** Welch, Davison, Halley, Johnson, Blackbird, Williams, Jackson, Irwin - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9545707 ## Opinion text JACKSON, Justice (dissenting). I concur in the result but dissent to the law announced in the majority opinion. As to the motion to dismiss, it is my opinion that it should be denied for the reason that the record shows plaintiffs did in fact give notice of their intention to proceed on the original record. On the date notice of intention to appeal was filed, plaintiffs filed an instrument styled, “Designation of the Record”, wherein the clerk was requested to prepare, bind and certify the original record, and to file same in the Supreme Court of the State of Oklahoma when ordered by the court, pursuant to 12 O.S.1957 Supp. § 956.3. I think this was sufficient to constitute notice of intention to proceed on the original record. I do not think that either the clerk’s acknowledgement on the file cover that the file contains the original record, or his certificate to the effect that he has included therein everything designated by the plaintiff is necessarily sufficient to establish that proper notice of intention to proceed on the original record was given. 12 O.S.1957 Supp. § 956.3 pro_-vides that such notice shall be given to the clerk at the time notice of intention to appeal is given or by written notice within ten days thereafter. The fact that the clerk has bound and certified all papers designated does not necessarily prove that the requisite and proper notice was given. As to the question of whether an appeal will lie from the action of the County Commissioners in ,re-zoning property, I desire to make the following observations. 19 O.S.1951 § 431, a general statute, provides for appeals from decisions of the Board of County Commissioners to the District Court. However in Groenewold v. *564 Board of County Commissioners of Kingfisher Co., 195 Okl. 526 , 159 P.2d 258, 260 , we said: “ * * * We have consistently construed this section to authorize appeals only from decisions of a judicial nature and that decisions of an administrative, legislative or political nature are not appealable on the theory that under the Constitution, the courts can^ not exercise purely administrative or legislative powers. * * (Emphasis supplied.) A judicial inquiry declares and enforces liabilities as they stand under existing laws. Legislation looks to the future by making a new rule to be applied thereafter. The enactment of Zoning Ordinances and regulations is legislation. Weaver v. Bishop, 174 Okl. 492 , 52 P.2d 853 ; McQuillan on Municipal Corporations, Vol. 8, Sec. 25.54. Such laws are enacted in the exercise of the police power. Beveridge v. Harper & Turner Oil Trust, 168 Okl. 609 , 35 P.2d 435 . Re-zoning by a local legislative body is also the exercise of a legislative function. Rhyne on Municipal Law, page 822. Rezoning is to be distinguished from the action of a Board of Adjustment in passing upon applications for variances. The latter proceedings are of a quasi judicial nature, Oklahoma City v. Harris, 191 Okl. 125 , 126 P.2d 988 . 19 O.S.1951 § 865.19, specifically authorizes an appeal from such decisions. Since an appeal does not lie, under 19 O.S.1951 § 431, from legislative decisions of the Board of County Commissioners, and since the enactment of re-zoning regulations is legislation, it follows that Sec. 431 did not authorize an appeal in this case. 19 O.S.1951 § 434, provides that the appeal shall be heard and determined de novo. This means that it must be tried as if no hearing whatever had been had below and in complete disregard of same. If this were done it would. mean that the district court would be called upon to decide legislatively the propriety and wisdom of the .proposed law without regard .to the action taken by the County Commissioners. In Parker v. Tillman, 41 Okl. 723 , 139 P. 981 , it is held in the second paragraph: “Upon an appeal from the board of county commissioners, the district court takes appellate jurisdiction only; same being confined to the jurisdiction the board had and none other, to an inquiring, de novo, as to the very matter upon which the board was called upon to act. * * In Stuart v. King, 203 Okl. 23 , 217 P.2d 540, 541 , we held in the 5th paragraph of the syllabus as follows: “The function of the District Court on a trial de novo, on appeal from the Board of County Commissioners, is to determine and render such judgment as the Board should have rendered.” The majority opinion does not hold that the District Court should pass upon the wisdom or policy of the law. It contains a suggestion that the appeal should be limited to a determination of whether the re-zoning -regulation is arbitrary or unreasonable, or bears no reasonable relation to the public health, safety, morals or general welfare. If the inquiry is so limited it is not an appeal and trial de novo under Secs. 431 and 434, and places an unwarranted limitation upon the extent of such an appeal. If the inquiry is limited to the questions indicated by the majority, it is not an appeal but a proceeding to test the constitutionality of a zoning or re-zoning law. Beveridge v. Harper & Turner Oil Trust, supra, Rhyne on Municipal Law, page 823. An appeal from the action of a legislative body in passing a law is obviously not the proper method of testing the constitutionality of such law. A party should not necessarily be foreclosed from testing the constitutionality of a law by failing to appeal from the legislative body’s enactment of same within twenty days from the date it is enacted. Nor should he be forced to post a -bond as a condition to such right. By the same token the party who has ostensibly benefited by the final passage of such law should not, in every case, be *565 halted from proceeding pursuant thereto at the mere whim of the opposing party. If the majority view is correct the law cannot become effective until the various appeals are settled. The proper way to test the constitutionality of a zoning law which decreases restrictions on adjacent property is by the institution of an action to enjoin the enforcement of such law or enjoin one from proceeding pursuant to said law which involves the issuance of summons, etc. See Beveridge v. Harper & Turner Oil Trust, supra, 138 A.L.R. 500 ; 37 A.L.R.2d 1143 , State ex rel. Hardy v. Superior Court of Kay County, 155 Wash. 244 , 284 P. 93 , Crozier v. County Commissioners of Prince George’s County, 202 Md. 501 , 97 A.2d 296 , 37 A.L.R.2d 1137 . In such case the court might refuse to issue a temporary restraining order which would enable the defendant property owner to proceed under a presumptively valid law if he so desired. In Fletcher v. Board of County Commissioners, Okl., 285 P.2d 183 , the District Court and this Court permitted an appeal from the County Commissioners’ action in re-zoning property. However, it was not contended in that case that an appeal did not lie. Even though the issues on appeal as restricted under the rule of the majority might be essentially the same as would be involved in an injunction action, I see no reason to disrupt the orderly procedure of the courts by authorizing the substitution of an appeal for an original action for in-junctive relief. Who is entitled to appeal and thereby attack the constitutionality of the law? Must the appealing party have filed a protest? Must he be within 1000' of the property in question? Is it sufficient to show that his property might be adversely affected by the proposed re7zoning, or can any person appeal regardless of the location of his prqperty with reference to the property in question. These questions would not be present if the part)? attacking the constitutionality of the law were relegated to his action for injunctive relief. See Starner v. Oklahoma City, 205 Okl. 170 , 236 P.2d 479 , for a definite rule in this regard. In the instant case the alleged appeal was in fact filed as a petition for injunctive relief; therefore, the trial court was in error in dismissing same, even though it also purported to be an appeal. But because of the language of the majority opinion which holds that the proceeding below is governed by 19 O.S.1951, § 431 et seq., providing for appeals and a trial de novo, I m.ust respectfully dissent to the rules of laW announced therein. I am authorized to say that WILLIAMS, V. C. J., concurs in the views herein expressed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9545707. Public record. Not legal advice.