(dissenting).
First, this court does not have appellate jurisdiction of an appeal from a judgment of the district court which determines the validity of a zoning ordinance. Section 16-7-8, N.M.S.A.1953 (Repl. Vol. 4). However, if this court determines it has jurisdiction in a case filed in this court and proceeds to decide the matter, that determination of jurisdiction is final. Section 16-7-10, N.M.S.A.1953 (Repl. Vol. 4).
The transcript of the record states, “In the Supreme Court of the State of New Mexico.” It was inadvertently filed in the office of the Clerk of the Court of Appeals.
In my opinion, this case should be transferred to the Supreme Court. The Court of Appeals, constantly, has over 100 cases pending on appeal, and we should not voluntarily assume an additional burden.
The Comprehensive Zoning Ordinance adopted in 1968 is 52 pages in length. The cost of publication of the entire ordinance before and after its passage would be burdensome. Its value to the public in this form would be questionable.
Section 14-20-12(B), N.M.S.A.1953 (Repl. Vol. 3) should be amended to allow the board of county commissioners to publish a summary, not the full text, of the ordinance prior to the date of the meeting of the board with the date of the meeting stated in the notice. The members of the public interested in the Comprehensive Zoning Ordinance would have sufficient time to procure and study it. They would have the privilege of attendance at the meeting held for final passage.
Section 14-20-12(D), N.M.S.A.1953 (Repl. Vol. 3) should be amended to allow publication of a summary of the ordinance before it takes effect.
Second, the publication question was not an issue in this case.
The record shows that plaintiff made application for a change of zoning of two lots from residence to commercial. He wanted the change to expand his commercial activities in order to erect buildings to he rented to small retailers and service agencies. The lots were then used for residence, a warehouse and shop. This commercial use was allowed by the zoning ordinance to continue for an additional 60 years after November, 1968. Four members of the public objected to the application for change.
On August 9, 1971, the application was denied by the Planning Department.
An appeal was taken to the Board of County Commissioners. On September 9, 1971, the application was again denied.
On October 5, 1971, plaintiff, pursuant to § 14-20-7, N.M.S.A.1953 (Repl. Vol. 3), appealed to the district court of Bernalillo County. His petition alleged, in part, that the zoning ordinance was invalid because no supporting maps were filed with the ordinance as required by § 14 — 20-12 (D), supra, and he sought damages based upon negligence.
Plaintiff’s petition did not request the trial court to allow a writ of certiorari as required by statute, and none was issued.
Defendants filed a “Reply” to plaintiffs petition. In their answer, defendants did not make a return of the original papers acted on nor certified or sworn copies thereof, nor such further pertinent or material facts necessary to show the grounds of the decision as provided by statute.
A trial was held, testimony taken, findings of fact and conclusions of law made by the trial court, and judgment entered that plaintiff’s petition be dismissed with prejudice.
The Supreme Court has already held, (1) that a writ of certiorari must be issued and complied with; (2) the trial court does not have jurisdiction to consider new evidence; (3) the trial court is bound by the record of the prior administrative proceedings ; (4) the questions to be answered by the trial court are questions of law and are restricted to whether the defendants acted fraudulently, arbitrarily or capriciously; (5) whether the defendants’ order was supported by substantial evidence ; and (6) whether the action of the defendants was within the scope of its authority. The district court may not substitute its judgment for that of the board. Coe v. City of Albuquerque, 76 N.M. 771, 418 P.2d 545 (1966); Peace Foundation, Inc. v. City of Albuquerque, 76 N.M. 757, 418 P.2d 535 (1966); Coe v. City of Albuquerque, 79 N.M. 92, 440 P.2d 130 (1968); Peace Foundation, Inc. v. City of Albuquerque, 79 N.M. 241, 442 P.2d 199 (1968). Section 14-28-16, N.M.S.A.1953 (Orig. Vol. 3), since repealed, is the same as § 14-20-7, supra.
No question was raised by plaintiff whether defendants’ action was arbitrary. No such finding or conclusion by the trial court was made. The record contains no evidence of arbitrariness. Even though plaintiff’s petition stated it was an appeal from the decision made by the defendants, the trial court used it as a civil claim for damages as well as the invalidity of the ordinance.
The rule is well established that where the trial court correctly dismissed the plaintiff’s petition but for the wrong reasons, the judgment should be affirmed. Rein v. Dvoracek, 79 N.M. 410, 444 P.2d 595 (Ct.App.1968). In fact, the decision of the trial court will be upheld if it is right for any reason. Scott v. Murphy Corporation, 79 N.M. 697, 448 P.2d 803 (1968).
The decision of the trial court should be affirmed.