[20] Petitioner, 7-Eleven, Inc., has requested this Court to assume jurisdiction and to grant its petition for Writ of Certiorari. In its application it is said in part:
*Page 27"* * * an order denying the issuance of a license to dispense 3.2 non-alcoholic beverages at a grocery store operated by the Petitioner within the City of Bethany, Oklahoma, (was denied) for the sole and only reason that the sale of 3.2 alcoholic beverages at the applicant's location within the City of Bethany would be in violation of the ordinances of the City of Bethany and particularly Ordinance No. 380 of the City of Bethany pertaining to zoning classifications." (Emphasis supplied.)
[21] It was stipulated that the petitioner satisfied every requirement of the statutes (37 O.S. 1961 § 163.11[37-163.11]), but it is asserted that the permit was denied out of a consideration of extraneous matters — the zoning ordinances of the City of Bethany.
[22] The issue before the trial judges, county and district, waswhether a beer permit should be issued. They denied the permit solely because of the ordinance.
[23] The issue before this court is whether we should entertainjurisdiction. Certiorari is not a writ of right, but is to be granted in the discretion of this court, Consolidated Sch. Dist. No. 8 v. Wilder, 148 Okla. 91, 297 P. 280, and only where no appeal or proceeding in error lies, and ordinarily where error cannot be otherwise corrected. Consolidated Sch. Dist. No. 8, supra, and School Dist. No. 6, McClain County, v. Board of Com'rs, McClain County, 108 Okla. 254, 236 P. 21.
[24] The trial courts did not test or try the constitutionality of the zoning ordinances and it seems doubtful that they could do so in a proceeding to obtain a "beer permit." In Weaver v. Bishop,174 Okla. 492, 52 P.2d 853, we held that where a comprehensive zoning plan has been adopted by a municipality the zoning ordinance is presumed to be valid. The usual method or procedure for attacking the constitutionality of an ordinance is by injunction.
[25] Thus we are called upon in a "beer permit proceeding" to take original jurisdiction in order to grant "injunctive relief" against the enforcement of an allegedly unconstitutional zoning ordinance. In the alternative we are requested, within the sound judicial discretion of this court, to assume jurisdiction and to cause a beer permit to be issued for use at a place where beer may not be sold. If a beer permit is caused to be issued it will be of no value because the validity of the zoning ordinance must be tested and determined in a court of competent jurisdiction before the permit may be utilized; or the petitioner might proceed to sell beer in violation of the ordinance and attempt to test its validity as defendant in a criminal proceeding.
[26] It is admitted that except for the ordinance the permit would have been issued.
[27] It seems to me that the more orderly procedure would be for the court to refuse to assume jurisdiction until petitioner has tested the constitutionality of the ordinance in a more appropriate forum. For this reason I must respectfully dissent.