Cummings v. Board of County Commissioners

Opinion of the court by Gillette, J.: The only question presented to this court for determination is whether the court below erred in dismissing the appeal from the board of county commissioners. We think not. No disputed claim for damages had been made before the commissioners and consequently the appeal to the district court carried no question of fact to be tried or determined in that court. Indeed both parties were before the court asking to have the cause dismissed, the only difference being that the plaintiff desired to have it remanded to the commissioners with directions to set aside all the orders and proceedings of the board subsequent to the petition. Such order, the court had no authority to make on appeal from the order of the board of county commissioners in a highway proceeding. The only appeal provided for by the statutes of Oklahoma in such case is from the award of damages. If there is no question of damages in the proceedings, no appeal will lie. All other questions involved in such proceeding, must be raised by independent action, not by appeal. So far as the record shows, no notice of the contemplated action of the board of county commissioners in laying out the road was. either published or posted,, as the law requires; without it the commissioners had no authority to act and their proceedings would be void, but this could not be brought to the attention of the district equrt by appeal, because the statute does not provide for the transfer of questions of this kind to the court by appeal. (Fulkerson v. [26] Stevens et al., 1 Pac. 261; Kent v. Board of County Commissioners, 22 Pac. 610.) It is contended that the court below should have remanded the case to the county commissioners with directions to vacate and set aside their former action in the premises. This the court had no power to do. It might in a proper case declare their action void, but it could not compel them so to declare, or in any other manner control or direct the exercise of their own judgment and discretion in any matter in which they are required to take action. The judgment and order of the court below dismissing the appeal was right, and must be affirmed. Iíainer, J., who presided in the court below, not sittings Bnrf-ord, C. J., and Pancoast, J., absent; all the other Justices concurring.