The question for decision is whether this court should assume original jurisdiction to review by certiorari an alleged error of law committed by the county and district judges in denying a permit to Salaney to operate a beer tavern in the town of Snyder against the wishes of the people of the town. In denying the permit, on appeal, the district court said:
"The evidence from the witnesses does show that beer establishments located upon the Main Street of Snyder, which is a small town some thirty miles from the county seat of Kiowa County, constitutes a grave problem for the officers and policemen, as well as the testimony shows that similar establishments located in the main section of Snyder within the past two or three years created a traffic hazard caused by an accumulation of over-intoxicated persons, which forced the women and children to walk out in the middle of the street."
"Taking into consideration the location of this establishment on Main Street at Snyder, the distance from the county seat, the limited amount of police protection, the accumulation of traffic in a small area, and the inability of such establishments in the past to be properly operated and maintained in this location, the application for beverage permit will be denied."
"The court finds that the county judge does have discretionary power; that he can go beyond the five statutory provisions in granting beverage license and take into consideration the location of the place, the lack of police protection, and the inability of such establishments in the past to be properly operated and maintained."
There are three reasons why, in my opinion, we should refuse to assume jurisdiction.
1. The provisions of section 2, article 7 of the Constitution of Oklahoma, conferring upon this court original jurisdiction to issue writs of certiorari and the other named writs appeared in the Constitutions of several other states long prior to the adoption of our Constitution and many decisions had been rendered in the other states construing such provisions. In Homesteaders v. McCombs, 24 Okla. 201, 103 P. 691, this court reviewed and quoted from *Page 241 cases from Wisconsin, Colorado, and North Dakota construing similar constitutional provisions. For other authorities construing such provisions, see Jarman v. Mason, 102 Okla. 278,229 P. 459; El Reno Wholesale Grocery Co. v. Taylor,87 Okla. 140, 209 P. 749; 14 Am. Jur. 457-459; 7 R.C.L. 1075; Wheeler. v. Northern Colorado Irrigation Co. (1886) 9 Colo. 248, 11 P. 103; State v. Frear, 148 Wis. 456, 134 N.W. 673, 135 N.W. 164, L.R.A. 1915B, 569, Ann. Cas. 1913A, 1147; White Eagle Oil Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614, 43 A.L.R. 397.
The rules deducible from these authorities are as follows: (1) The jurisdiction of this court is primarily appellate; (2) original jurisdiction to issue the named writs was conferred in furtherance of the appellate jurisdiction and of the power of superintending control over the inferior courts, boards and commissions, and in cases of statewide concern involving the sovereignty of the state, its franchises or prerogatives, or the liberties of the people; (3) to justify this court in assuming original jurisdiction to issue any of the named writs, the question should not only be publici juris, but it shoulddirectly, not merely remotely or collaterally, involve the interest of the state at large, and the interest of the state should be primary and not indirect and remote; (4) whether these requirements are met will depend upon the facts and circumstances of each case.
Like other courts, this court has not always kept in mind these settled rules, and we have assumed jurisdiction in too many cases that do not meet these tests. During the past three years an average of 38 applications per year have been filed asking this court to assume original jurisdiction under this constitutional provision. The hope that the bar would exercise care and observe the established rules in seeking to invoke the original jurisdiction was expressed in Homesteaders v. McCombs, above, Attorney General v. Eau Claire, 37 Wis. 400, and in Wheeler v. Northern Colorado Irrigation Co., above.
Here the direct and primary question is whether Salaney shall be permitted to open and conduct a beer tavern in the town of Snyder, and the interest of the state in the small revenue that would be collected is only collateral and incidental. The case does not meet the tests above stated and established by the decisions.
We should refuse to assume original jurisdiction by order. Since no case is pending until the court has assumed jurisdiction, it is not necessary that a written opinion be filed refusing to assume jurisdiction as required by Section 5, article 7 of the State Constitution. This has been the practice under rules that have been in effect since the advent of statehood. See 20 Okla. X, Rule XIV; 159 Okla. IX, Rule 27; 177 Okla. XI, Rule 37. See, also, 14 Am. Jur. 459.
2. Certiorari lies to review only jurisdictional questions and not to correct errors of law or fact committed by the inferior courts and tribunals. Parmenter v. Ray, 58 Okla. 27,158 P. 1183; City of Tulsa v. Terrill, 194 Okla. 380,151 P.2d 917. The county court, and the district court on appeal, had jurisdiction to grant or deny the application for a beer permit, and they are the only officers having such jurisdiction under 37 O.S. 1947 Supp. § 163.11. In performing this duty, they had the incidental and necessary right to construe the statute. They construed the statute to prescribe only the minimum of requirements and to vest some discretion in the county court in the performance of such duties. I think there is merit in this position. The statute requires the applicant to establish certain facts before he may be granted a permit, but it does not say that on proving such facts he shall be granted a permit. It authorizes any citizen of the county to appear and protest the issuance of a permit, but it does not expressly limit the protest to those facts *Page 242 which the applicant must establish before he may be granted a permit. But, assuming that the construction placed upon the statute by the county judge and the district judge was error, the error was one of law that may not be corrected by a writ of certiorari.
3. The writ of certiorari is one of discretion, not one of right. Lennon v. School District, 189 Okla. 37, 113 P.2d 382; 14 C.J.S. 139; 10 Am. Jur. 530. The Legislature, by giving the district court final appellate jurisdiction in connection with the granting, refusal to grant, or revocation of, beer permits, intended that these matters should be handled in the local communities by the local officers who are familiar with local conditions. We should not defeat this legislative intent by reviewing the acts of the local officers by the extraordinary writ of certiorari. We should not require that Salaney be granted a license to operate a beer tavern in a community that has insufficient police protection, in view of the finding of the district court as to the drunkenness attending the operation of such places in Snyder in the past. We have too many important appealed cases at issue and awaiting our decision to devote the time to supervising the 77 county judges of the state in administering this law.
For the foregoing reasons, I respectfully dissent to the order assuming original jurisdiction and to the majority opinion.