Chandler Materials Co. v. Board of County Com'rs of Tulsa County
Decision Date | 10 March 1953 |
Docket Number | No. 35052,35052 |
Citation | 254 P.2d 767,208 Okla. 189 |
Parties | CHANDLER MATERIALS CO. v. BOARD OF COUNTY COM'RS OF TULSA COUNTY |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A decision of the Board of County Commissioners that a public necessity exists for the designation, establishing, laying out, locating and constructing of a county highway and road for public purposes 100 feet wide over and across privately owned land; under authority of 69 O.S.1941 § 363 is a decision from which an appeal lies from the Board of County Commissioners to the District Court.
2. Appeals to the District Court from decisions of the Board of County Commissioners under authority of 69 O.S.1941 § 363 are to be heard and determined in the District Court de novo.
3. As a general rule the functions and decisions of the Board of County Commissioners involving the determination of an administrative, legislative or political nature are not appealable on the theory that under the Constitution the courts cannot exercise purely administrative or legislative powers.
4. Where the decision of the Board of County Commissioners involves an exercise of a quasi judicial duty, an appeal lies to the District Court and upon a trial de novo, the court should determine and render such judgment as the Board of County Commissioners should have rendered.
Elton B. Hunt, W. L. Eagleton and A. C. Saunders, Tulsa, for plaintiff in error.
Lewis J. Bicking, County Atty., of Tulsa, Hugh Webster, Asst. County Atty., Tulsa, for defendant in error.
O'NEAL, Justice.
Freeholders residing in Tulsa County, Oklahoma, petitioned the Board of County Commissioners of said county to establish, open and lay out a public road 100 feet in width, located in Sections 7, 8 and 18, Township 19 North, Range 12 East, Tulsa County, Oklahoma. The proposed highway was delineated by metes and bounds as shown by plans prepared by the County Engineer of said county and approved by the Board of County Commissioners. Two of the petitioning freeholders entered into an undertaking to pay the cost of the proceeding pending before the Board if said petition was disallowed.
The petition of the freeholders to establish, open and lay out the public road, in conformity with their application, was filed with the Board on August 7, 1950. The Board thereupon adopted a resolution assigning said petition for hearing on August 30, 1950, and notice of the hearing was given by publication and personal service was made upon the Chandler Materials Company. At the hearing before the Commission on August 30, 1950, statements were made by freeholders in favor of and against the establishing of the highway. On the same day the Board adopted a resolution reciting that the petition was sponsored by 12 or more freeholders residing in the vicinity of the proposed road, and that a public necessity exists for the designation, opening, laying out and construction of a public road and highway along and over said proposed route; said highway or road to be 100 feet wide across the land described in the freeholder's petition.
The Chandler Materials Company filed its notice of appeal with the Board of County Commissioners, and the Board prepared a transcript of its proceedings which was filed in the District Court of Tulsa County, Oklahoma. The notice of appeal sets forth nineteen grounds why the road should not be established. It also filed an appeal bond conditioned that it would prosecute its appeal without delay and pay all costs assessed against it.
On the 18th day of December, 1950, the appeal of the Chandler Materials Company from the Board of County Commissioners came on for hearing in the trial court. Thereupon, the County Attorney representing the Board read into the record a motion to dismiss the appeal, which motion is in words and figures as follows, to wit:
'Comes now the appellee, Board of County Commissioners of Tulsa County, Oklahoma, and moves the court for judgment in favor of the said appellee, on the ground that title 69, section 44, Oklahoma Statutes 1941, and other pertinent statutory provisions, provides that the Board of County Commissioners has exclusive jurisdiction over the matter of designation of roads; that their jurisdiction in the matter of designation of roads is of the same standing as that of the Department of Highways and the State Commission of Highways, over state roads, and that the decisions of the Board of County Commissioners with respect to designation of roads is final, and that for that reason the order of the Board of County Commissioners and the resolution of the Board of County Commissioners is final and is not subject to review by the court; for the further reason that this is not an appealable matter, as contemplated by the statutes, and that the court is without jurisdiction to review the order and judgment and resolution of the Board of County Commissioners; and for the further reason that the record and transcript as filed in the office of the Court Clerk in this matter and cause shows upon its face that the appellee, Board of County Commissioners, is entitled to judgment in its behalf.'
The trial court sustained said motion and entered its judgment in favor of the Board of County Commissioners upon the ground recited in said motion. The journal entry of judgment, entered in the cause, recites that the attempted appeal be denied on the ground that the Board of County Commissioner's decision is not appealable. The Chandler Materials Company brings the case here for review.
This case calls for an answer to the question of whether the decision of the Board of County Commissioners of Tulsa County, Oklahoma, in locating the county road involves the exercise of an administrative function or a judicial or quasi judicial function; and whether, under the statutory law, the order of the Commission is an appealable order vesting the District Court with power and authority to hear and determine the matter de novo. The Act upon which the Chandler Materials Company posited its contention for a hearing in the trial court is 69 O.S.1941 § 363. The Board of County Commissioners contend that under 69 O.S.1941 § 44, its decision upon the necessity for the construction of a county highway is exclusive and final and a fortiori that Sec. 363, supra, has no application; therefore, the judgment of the trial court should be affirmed.
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