School Dist. No. 7 of Johnston County v. Cunningham , 51 Okla. 261 ( 1915 )

It is argued in the petition for rehearing that the provisions of chapter 107, Sess. Laws 1910, are unconstitutional, because it makes the decision of the county commissioners final, thus preventing an appeal; the argument being that under the Constitution appeals are matters of right in all cases. We do not think this construction is tenable. If the contention of the petition in error were sound, the provision of the Constitution would allow appeals from all orders and proceedings of inferior boards and courts; but the decisions of this court, both state and territorial, are to the contrary. In Territory ex rel. v. Neville, 10 Okla. 79,60 P. 790, it is said:

"The first question that presents itself to the court is: Was the order of the county commissioners an appealable order? The statute provides: 'From all decisions of the board of county commissioners upon maters properly before them there shall be allowed an appeal to the district court.' This leads to the question of what is meant in this statute by a decision. We take it that this means a final conclusion of any question requiring the exercise of discretion, and does not intend to include the decision of questions purely ministerial."

In State v. Cawthon's Estate, 31 Okla. 560, 122 P. 522, the question arose whether an appeal lay to this court from the decision of the county court on appeal to that court from the action of the county treasurer in listing omitted property under the tax ferret law. The statute gave an appeal from the action of the county treasurer to the county court, but was silent as to any further appeal to this court, and it was held that no appeal would lie, citing Board of Commissioners ofKingfisher County v. Guaranty State Bank, 27 Okla. 736,117 P. 216. And the same question is decided in Shull v. State,35 Okla. 588, 130 P. 910; and see McAlester Trust Co. v.Watson, 45 Okla. 607, 146 P. 586, and Thompson v. Bond,47 Okla. 547, 149 P. 1098. Under these authorities we think it is settled in this state that the Constitution does not give the universal right of appeal claimed by petitioner, and that our former decision was correct.

The petitioner also complains because a petition for rehearing was allowed in this case on July 13, 1915, and the opinion now sought to be reviewed in the petition for rehearing was filed on July 20, 1915. It appears that the clerk of this court had assigned this case for submission on September 13th, although no order of this court was made directing any such assignment. Rule 9 (38 Okla. vi, 137 Pac. ix) on the subject of rehearing provides, among other things:

"No oral argument will be allowed on an application for rehearing, except upon an order of the court; and if such application is granted the cause shall be assigned for rehearing, and the clerk shall notify both parties or their counsel of the time when such rehearing shall be had, and such time may be given for argument or brief as the court shall allow."

The question now presented has never been passed upon by this court, and we think the proper construction of this rule is that, when the petition for rehearing is granted, the clerk shall notify counsel when the rehearing is to be heard only upon an order of this court, and then only in case oral argument is allowed or additional briefs required by the court. What purpose could a notice to counsel serve unless either additional briefs are required or oral argument is allowed? The rule requires the motion for rehearing to be filed in 15 days, and under rule 5 notice must be given opposing counsel. Unless the notice provided for in rule 9 is intended to notify counsel that oral argument or additional briefs are required, it serves no useful purpose, because notice of the petition for rehearing has already been provided for by rule 5 (38 Okla. v, 137 Pac. ix). But in any event the action of the clerk in assigning this cause without an order of this court is unwarranted. Under the provision of the rule, such time may be given for argument or briefs as the court shall allow, and in the absence of an order of court giving time for argument on briefs, and assigning the cause for some definite time, further notice would be useless, for the case has already been submitted, is before the court, and subject to its disposition.

We therefore recommend that the petition for rehearing be denied.

By the Court: It is so ordered.