Oklahoma City v. Johnson , 183 Okla. 430 ( 1938 )

I cannot concur in the conclusion reached in the majority opinion for the reason that I am unable to harmonize the rules of law laid down in the opinion with the previous announcements of this court.

In C. C. Julian Oil Royalties Co. v. City of Oklahoma City,167 Okla. 384, 29 P.2d 952, in the fourth paragraph of the syllabus, we said:

"If there is room for fair debate as to whether a municipal ordinance is arbitrary or unreasonable, the court will not substitute its own judgment for that of the legislative body charged with the primary duty and responsibility of determining the question."

I cannot agree that in the enactment of this ordinance the city exceeded its police powers granted by the Constitution, statutes, and general rules of law.

In Anderson-Kerr, Inc., v. Van Meter, 162 Okla. 176,19 P.2d 1068, in upholding the right of the city to pass an ordinance regulating the drilling of oil wells within the city limits, in the first paragraph of the syllabus, we said:

"It is a proper exercise of the police power of the city, which power extends not only to the provisions of the public safety, health, and morals but to the common convenience, prosperity, and welfare of the public."

These decisions merely follow the often announced rules of law laid down by this court. In McCurley v. City of El Reno,138 Okla. 92, 280 P. 467, we cited with approval the opinion of the Supreme Court of California in Miller v. Board of Public Works, 234 P. 381, wherein it was said:

"The police power of a state is an indispensable prerogative of sovereignty and one that is not to be lightly limited. Indeed, even though at times its operation may seem harsh, the imperative necessity for its existence precludes any limitation upon its exercise save that it be not unreasonable and arbitrarily invoked and applied." (Citing cases.)

In our approval of the above language of the Supreme Court of California, in regard to the police power, we said:

"* * * It is perhaps the one power which, under the interpretation of our courts, has kept step with the advance in civilization, and is now regarded as sufficiently elastic to meet the imperative demands of our complex city life." (Citing cases.)

In the ninth paragraph of the syllabus of the above-quoted California case, that court said:

"A large discretion is vested in the Legislature in reference to exercise of police power, and every intendment is to be indulged in favor of its validity, and it is only when it probably has no substantial relation to public health, safety, morals, and general welfare that it will be nullified by the court."

It is therefore my conclusion that we are not justified in substituting our judgment as to the wisdom or propriety of this ordinance passed by the lawmaking body of the city. That is their responsibility, so long as they do not exceed or abuse the authority given them under their police powers. In view of the above-cited cases, and many more that might be cited. I cannot agree that in passing the ordinance in question the city exceeded its police powers. I therefore most respectfully dissent.