Russell Petroleum Co. v. Walker , 162 Okla. 216 ( 1933 )

This case involves an appeal from the district court of Oklahoma county in which the plaintiff. Russell Petroleum Company, attacks the validity of two entirely different classes of orders. The first attack is against a proration order promulgated by the Corporation Commission of this state, the purpose of which order was to limit and regulate the production of oil in the oil fields of Oklahoma, and in this particular case in the Oklahoma City oil field. The second orders complained of are those promulgated by the Governor of the state of Oklahoma, and which orders of the Governor undertakes to enforce through the state militia.

While concurring in the result announced by the majority of the court, I do not entirely agree with the reasoning therein, nor with the rules announced for the future guidance of the trial court. Some confusion exists in reported decisions and on the part of the bench and bar of this state because of the wording in section 6, article 2, of the Constitution of Oklahoma, and especially because of certain language which I consider dicta appearing in the case of Pioneer Telephone and Telegraph Company v. State of Oklahoma, 40 Okla. 417,138 P. 1033. For these reasons, and for the further reason that the question of the power to review and determine the validity of orders of the Corporation Commission of Oklahoma should be settled definitely, I feel it my duty to discuss at further length the equity powers of district courts as affecting such orders, as well as other Problems and rules of law herein involved.

In the case at bar the plaintiff, Russell Petroleum Company, attacks the validity of the proration orders issued by the Corporation Commission of the state upon the following theories as set forth in his petition: First, that said orders are made without authority of law. Second, that said orders are not promulgated in the manner prescribed by law. Third, that the orders are unreasonable in that they fix a maximum amount of oil production in the Oklahoma City field at 87,000 barrels per day, whereas the market demand therefor is in excess of that amount. Fourth, that the orders discriminate unjustly by making a different classification and different allowable production of oil for lime formation wells and other wells, and a different allowable production for wells producing water and wells not producing water. Fifth, that the orders are void by reason of an alleged unfair and discriminatory manner of enforcement.

The order of the Corporation Commission complained of by plaintiff, Russell Petroleum Company, is one based on what is commonly known as the proration statutes of Oklahoma, sections 7954 to 7963, inclusive. C. O. S. 1921. [O. S. 1931, secs. 11565-11574]. The validity of all of this statute except that portion referring to a penalty for violation thereof and a section relating to economic waste has been upheld in the Supreme Court of the United States in the case of Champlin Refining Company v. Corporation. Commission, 76 L.Ed. 1062, 52 Sup. Ct. 559. It is my view that if the district court of Oklahoma county in its equity powers would attempt to issue an injunction to prevent the enforcement of an order of the Corporation Commission such as is involved in this case, where the Russell Petroleum Company challenges the validity of the proration orders, we would have to hold that the court could examine the order itself and then examine the facts and circumstances on which the order is based, the facts and circumstances surrounding the enforcement of the order, all of which would require the introduction of evidence and a review of the proceedings had before the Corporation Commission. If the district court of Oklahoma county is to be clothed with such power to review Corporation Commission orders and the matters leading up to the promulgation thereof, then every other district court within the state of Oklahoma would have like power and authority. It is apparent that if the various district courts of Oklahoma should be clothed with and should begin to exercise jurisdiction to review and determine the validity of the orders of the Corporation Commission promulgated within the proper field of the activities of that Commission, then every order which is issued may meet a challenge in every county in the state. The practical effect would be to prevent the proper operation and administration of the functions of the Commission and would in effect hamper if not entirely destroy the Commission.

It might be argued that this particular objection does not in itself constitute a legal basis for denying to the various district courts the right to review these orders. However, I believe that the provisions of our Constitution and our statutory enactments in connection with the powers of the Corporation Commission and the operation thereof were originally inculcated into our laws with a view to eliminating this multitude of litigation and the consequent chaos that would flow therefrom, and that it was the intent and purpose of the framers of the Constitution to centralize and vest in the Supreme Court only, the power to review and determine the validity of the orders of the Commission when they placed therein that portion of section 20, article 9, which reads as follows:

"No court of this state (except the Supreme Court, by way of appeals as herein authorized) shall have jurisdiction to review, reverse, correct, or annul any action of the Commission within the scope of its authority or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the Commission in the performance of its official duties; provided, however, that the writs of mandamus and prohibition shall lie from the Supreme Court to the Commission in all cases where such writs, respectively, would lie to any inferior court or officer."

An examination of the majority opinion of this court will reveal that some importance is attached to the fact that the constitutional provision above referred to contains the words, "within the scope of its authority." This phrase should not be treated in such a manner as to have the effect of authorizing the district courts to review and determine the validity of every order of the Corporation Commission where it is claimed that the order was not made within the scope of the authority of the Commission.

In my opinion such an interpretation of the meaning of the phrase would operate practically to annul the other connected provisions of the Constitution. I do not mean to say that the occurrence of this phrase in the Constitution has no meaning whatever, but I do not think that such importance should be attached to it, or such interpretation made of it that the other related provisions of the Constitution will be nullified and entirely lost sight of.

The constitutional provision quoted above prohibits any courts of the state except the Supreme Court from reviewing, reversing correcting, or annulling any action of the Commission. What is the import of the words, "review, reverse, correct or annul"? A review by the Supreme Court would necessarily be for the purpose of determining the validity or legality of the order being reviewed. A reversal by the Supreme Court could properly be made only in the event the order for some reason was determined to be invalid or illegal. A correction by the Supreme Court could only be made in case some portion of the order for some good reason appearing from the evidence and record in connection therewith, or for some legal reason, was improper, invalid, and incorrect. Annulment of the order of the Commission could only be made by the Supreme Court in the event that after a review the order was determined to be invalid.

It seems strange, indeed, that if by the language of our Constitution these powers are exclusively lodged in the Supreme Court, the next phrase occurring thereafter, "within the scope of its authority," should be interpreted to mean that the jurisdiction to "review, reverse, correct or annul" is also lodged in the district courts of the state of Oklahoma.

What, then, is the true meaning and import of the words, "within the scope of its authority," as they appear in the constitutional provisions? All laws, whether constitutional provisions? or otherwise, should be interpreted from a reading of the entire law in accordance with the spirit and purpose as it appears therein. Historically, this particular portion of our Constitution was borrowed from the Virginia Constitution, and prior to that the particular phrase now being considered was borrowed from the law of agency, and its particular import in the constitutional provision does not appear to have been previously carefully considered and analyzed by either the Virginia court or this court. In connection with the law of agency it has been variously explained and interpreted. The word "scope" has been defined to mean "mark." "target," "design," "aim," "purpose," or "intention." Volume 4, Words Phrases (2nd Ed.) 485. These various shades of meaning having been given to the word in accordance with the particular application thereof in the different cases. I believe the scope of authority of the Corporation Commission is the field of its activities as determined by the constitutional and statutory provision outlining and defining the same. Such an interpretation will enable us to give full force and effect to the clauses and provisions of the Constitution immediately preceding the phrase itself.

The field of activity of the Corporation Commission is outlined in sections 18 and 19 of article 9 of the Constitution, and numerous statutory enactments supplementing the same. Section 19 of article 9 of the Constitution provides, "that the Commission may be vested with such additional powers and charged with such other duties not inconsistent with this Constitution as may be prescribed by law in connection with the visitation, regulation or control of corporations. * * *"

Among the additional duties and powers within the jurisdiction of the Corporation Commission is enforcement of the oil conservation laws, under which basic order No. 5414 was made, dealing with the regulation and production of crude oil. It is this basic order and ancillary orders thereunder which are involved in this decision and which plaintiff Russell Petroleum Company complains of in its district court action.

In the Oil Conservation Act which we have under consideration, the Legislature, in accordance with the spirit and intent of the Constitution, again provided the Supreme Court as the forum for appellate jurisdiction. Section 7 of the act, chapter 25, Session Laws 1915 (Stat. 1931, sec. 11571), reads as follows:

"Appellate jurisdiction is hereby conferred upon the Supreme Court in this state to review the action of said Commission in making any order or orders, under this act. Such appeal may be taken by any person, firm or corporation, shown by the record to be interested therein, in the same manner and time as appeals are allowed by law from other orders of the Corporation Commission. Said orders so appealed from shall not be superseded by the mere fact of such appeal being taken, but shall be and remain in full force and effect until legally suspended or set aside by the Supreme Court."

It will be observed that neither the Constitution nor the statutory enactments providing methods of reviewing and controlling the actions of the Corporation Commission mention equity proceedings. Evidently it was the intent of the Legislature to provide aggrieved parties with adequate and complete remedies at law, either by appeal, mandamus, or prohibition. Suppose that in a proper case these legal remedies are found to be inadequate and the problems in the case require that a court of equity take jurisdiction. Then we are immediately confronted with the question: Which of the courts organized by our state may assume jurisdiction? The answer springs from the latter portion of section 20 of article 9 of the Constitution, where the courts of the state (except the Supreme Court by way of appeal) are positively prohibited from enjoining or interfering with the Commission in the performance of its official duties. It appears to me that the evident purpose of that constitutional provision prohibiting review by all courts of the state save and except only the Supreme Court can only be carried out by holding that equity jurisdiction is lodged in the Supreme Court to the exclusion of the district and superior courts.

The California courts have on several occasions had before them the identical question with which we are now confronted in construing section 67 of the Public Utilities Act of this state. Page 2544, Henning's California Code, section 67 of that Public Utilities Act, contains almost the identical language of our Constitution, with the omission of the phrase, "within the scope of its authority." The California act provides, in substance, that "no courts of this state except the Supreme Court shall review, reverse, correct, or annul any order or decision of the Commission." Several attempts were made in California to call in question the validity of the act through injunctive proceedings in the superior courts of that state exactly as we have the question raised here. The Supreme Court of California has on each occasion denied the right of the inferior courts to assume jurisdiction, announcing as the correct and settled law of that state in an unbroken line of decisions, the following rule:

"It must, therefore, be accepted as the settled law of this state that no court other than the Supreme Court has jurisdiction to review, reverse, correct, or annul any decision or order of the Railroad Commission. Even though the order by the Railroad Commission be palpably erroneous in point of law, until some order by the Supreme Court may be issued to the contrary, the original order of the Commission must stand as a proper and legal order in the premises."

See also. 137 P. 1119 (Cal.), 159 P. 713 (Cal.), 226 P. 838 (Cal.), 226 P. 841 (Cal.), 246 P. 494 (Cal.).

It is our opinion that the occurrence of the phrase "within the scope of its authority" in Oklahoma's constitutional provision referred to herein was intended only to permit the inferior courts of the state to pass upon validity of orders of the Corporation Commission when such orders were entirely outside the field of activities of the Commission. For instance, if the Corporation Commission should assume jurisdiction and issue an order of replevin, or seek to foreclose a mortgage in actions between private individuals, such order would be outside the field or authority of the Commission as limited by the Constitution and statutes, and its invalidity could be announced by any court. While the meaning and its importance in the Constitution of this phrase, "within the scope of its authority," has not heretofore been particularly analyzed, the question has previously been considered by the court in the case of the City of Tulsa v. Corporation Commission, 96 Okla. 180, 221 P. 1000, where in syllabus paragraph 4 this court announced the rule of law with reference to proceedings in the following language:

"No court of this state (except the Supreme Court by way of appeals as herein authorized) shall have jurisdiction to review, reverse, correct or annul any action of the Commission in the performance of its official duties: Provided, however, that the writs of mandamus and prohibition shall lie from the Supreme Court to the Commission in all cases where such writs, respectively, would lie to any inferior court or officer. (A part of section 20 of article 9 of the Constitution of Oklahoma.)"

It will be noticed from the language of the syllabus, which was based on the Constitution, that the court attached no particular importance to the phrase, "within the scope of its authority," and that the same was entirely omitted from the syllabus.

Again, Mr. Justice Hunt in his concurring opinion in the Julian Case, 145 Okla. 237, 292 P. 841, at page 246 in the Oklahoma Reports, interpreted the provision of the Constitution under consideration to preclude and prohibit the district court from taking jurisdiction in injunctive proceedings to review, reverse, or annul the actions and orders of the Corporation Commission, and in that case announced the rule as follows:

"* * * No court of the state has jurisdiction to review, reverse, correct, or annul any action of the Corporation Commission within the scope of its authority or to suspend or delay the execution or operation thereof or to enjoin, restrain, or interfere with the Commission in the performance of its official duties."

This question of the jurisdiction of the district court to determine the validity of an order of the Corporation Commission was also considered by this court in the Southern Oil Corporation v. Yale Natural Gas Company, 89 Okla. 121,214 P. 131. This was an injunctive proceeding instituted in the district court of Payne county, and among other things was considered the validity of an order of the Corporation Commission establishing a rate to be paid for gas. Dealing with this question and the right of the district court to pass upon such orders, this court said:

"* * * The Commission was vested with jurisdiction to fix and establish the rate for gas to be charged by the defendant. It established the rate of 15 cents per 1,000 cubic feet. The sufficiency of the showing made to sustain such order and the reasonableness and justness of the action of the Commission could only be questioned by appeal from the order of the Commission to the Supreme Court."

It will thus be seen that our own court has held that the sufficiency of the evidence and the reasonableness of the findings upon which the Corporation Commission has based an order in the field of its jurisdiction cannot be questioned in the district court.

Considerable argument is made by counsel on both sides in connection with this question based upon the decision of this court in the case of Pioneer Telephone Telephone Co. v. State, supra. In that case this court said, in discussing this section of the Constitution, that the validity of an order of the Corporation Commission might be challenged in the district and superior courts of this state by a direct proceeding.

We regard this language as it appears in that case as dicta, since the proceeding that it involved was an appeal from the Corporation Commission to this court, and was based upon the theory that to deny the district court and superior court jurisdiction would be an infringement of the constitutional rights guaranteed by section 6, article 2, of the Constitution of this state, reading as follows:

"The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."

The reasoning in the Pioneer Telephone Telegraph Case, supra, was based upon the case of Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 Sup. Ct. 67, 53 L.Ed. 150.

I cannot conceive how the lodging of the exclusive jurisdiction of laws involving public service corporations or proration laws In one or several organized courts of the state, such as the Corporation Commission and the Supreme Court, violates section 6, article 2, of the Oklahoma Constitution, above referred to, so long as these courts remain open and available to litigants. In my opinion it is fundamentally the law that a state has the power and authority to designate the particular court in which any class of litigation shall be tried when it is tried in the courts of the state, and the designation of one court to the exclusion of others does not impair or infringe upon the rights of litigants to obtain a proper hearing upon their controversies. 7 R. C. L. p. 977. As for example, our own Industrial Commission, which deals with the Workmen's Compensation Law. Could one of our district courts review an industrial award and issue injunctive relief against the enforcement thereof by virtue of section 6, article 2, of our Constitution? I say not.

The Prentis Case referred to supra, construes a provision of the Virginia Constitution identical with ours and holds that the federal court has the right to review the order of the Commission in cases where federal courts properly take jurisdiction. I am in accord with this decision, for I do not think that any state by virtue of either a constitutional or statutory provision can deprive the federal courts of their jurisdiction, nor can the state by virtue of a constitution or statutory provision dictate to the federal government which one of its courts shall be vested with exclusive jurisdiction in any controversies. The Prentis Case is distinguished from the case at bar in that it deals with a federal court not within the jurisdiction of Oklahoma. I do mean to say that the state of Oklahoma itself in determining the jurisdiction of its own courts has the right, power, and authority by proper constitutional provision to designate which court shall have exclusive jurisdiction of any legal question.

I therefore, conclude that the district court of Oklahoma county had no right to review and determine the validity of an order of the Corporation Commission made in connection with the oil proration and regulation. To hold otherwise would be to hold contrary to the provisions of our Constitution and our statutes, the purpose of which was to lodge exclusive appellate jurisdiction in the Supreme Court of Oklahoma when the validity of such orders are questioned. It has been previously determined by this court and by the Supreme Court of the United States that the Corporation Commission has jurisdiction to issue oil proration orders such as the one complained of by Russell Petroleum Company. Champlin Refining Company v. Corporation Commission, 76 L.Ed. 1062.

It is my opinion, further, that the plaintiff would not be entitled to the injunctive relief against the Corporation Commission as prayed for in the district court because plaintiff had an adequate remedy at law to test the validity of the Corporation Commission's orders, and that the existence of such remedy at law precludes the assumption of jurisdiction by any court of equity in an injunction proceeding. In the Pioneer Telephone Telegraph Company Case, supra, about which some confusion has arisen, although suggesting that the district court of the state might have jurisdiction, it was pointed out that there were three remedies available by which an order of the Corporation Commission might be challenged. We quote:

"Three remedies were available to the appellant by which the validity of said order might be challenged: (1) By appeal as provided in section 20 of article 9 (section 238, Williams' Ann. Ed.) of the Constitution; (2) by application made directly to the Commission to set aside order (section 18 of article 9 [section 234, Williams' Ann. Ed.] of the Constitution), and (3) by an action in equity to restrain its enforcement. As a matter of practice the first two remedies should be sought before the last remedy is resorted to."

It is a general principle that a person cannot proceed in a court of equity if he has an adequate remedy at law. The court announced in the Pioneer Case that it was the duty of a person seeking to challenge the validity of orders of the Corporation Commission to first proceed either by appeal or by application made direct to the Commission to set aside the order complained of.

In numerous other cases it has been held by this court that relief against the operation of an invalid order of the Corporation Commission should be obtained by a writ of prohibition in this court to prevent its enforcement. St. Louis S. F. Ry. Co. v. Love, 29 Okla. 529, 118 P. 259; City of Tulsa v. Corporation Commission, 96 Okla. 180, 221 P. 1000.

The remedy thus afforded by appeal or by an original application to this court for a writ of prohibition was amply sufficient to protect the rights of plaintiff. Russell Petroleum Company, against the infringement of alleged invalid orders of the Corporation Commission. These are the remedies contemplated by the makers of the Constitution, and until and unless they are in some particular respects inadequate, the jurisdiction of a court of equity should not and cannot be properly invoked. Harris v. Smiley, 36 Okla. 89, 128 P. 276; Ferk v. Hall, 119 Okla. 251, 249 P. 1106; Stoner v. Hyde,82 Okla. 5, 198 P. 328; Ingram v. Board of County Commissioners,144 Okla. 41, 289 P. 273.

Just here I desire to emphasize the import and effect of a recent opinion written by Chief Justice Riley in the case of State of Oklahoma ex rel. v. H. F. Wilcox Oil Gas Company,162 Okla. 89, 19 P.2d 572. In that case it was held that the jurisdiction of courts of equity might be properly invoked to enjoin the violation of the oil proration law and of the order of the Corporation Commission made thereunder. It should be noted that that decision harmonizes with this opinion and does not conflict with the views herein announced for the reason that in the Wilcox Case, supra, jurisdiction of the court of equity is invoked to assist in carrying out the orders of the Corporation Commission, and the court is not therein asked to review, reverse, correct, or annul the same. Whereas, in the case at bar the plaintiff, Russell Petroleum Company, is met at the threshold with a constitutional provision forbidding any court except the Supreme Court of Oklahoma to review, reverse, correct, or annul the orders of the Corporation Commission. In the Wilcox Case, supra, Wilcox Company, had it desired to question the validity of the order of the Corporation Commission, could have done so, either (1) by application to the Commission to modify or nullify the order; (2) by appeal to this court as provided by the Constitution and statutes; (3) by asking for a writ of prohibition in this court against the enforcement of the order by the Corporation Commission and the district court.

We now go to a discussion of the executive orders promulgated by Governor Murray and the powers and duties of the Chief Executive where military law is declared. Both plaintiff and defendant have extensively briefed this question. Both plaintiff and defendant have attached much importance to this phase of the case.

The general rule with reference to the powers of the Chief Executive seems to be laid down in paragraph 393, subsection 6, of 12 C. J., page 894, as follows:

"The courts are without jurisdiction to interfere with or to control in executive officer in the exercise of any power or the performance of any duty of an executive or administrative character in which the Constitution contemplates the exercise of discretion by such officer. In the exercise of executive powers judicial discretion must not be substituted for executive discretion. But where duties purely ministerial in character are imposed on executive officers and they refuse to act or attempt to act in violation of law, they may be compelled to act, or restrained from acting by the courts, at the suit of one who is injured in his person or property, it being within the province of the judiciary to determine whether or not acts of executive officers are authorized by law. The exercise of some authority, discretion, or judgment may be incident or necessary to the performance even of ministerial duties; but such authority, discretion, or judgment is subject to judicial review."

In the case at bar we are concerned with a statute adjudged valid by the United States Supreme Court and by our own court. (Champlin Refining Company Case, supra, and Julian v. Capshaw.) This statute forbids production in excess of transportation and marketing facilities and market demands, and authorizes the Commission to prevent the unfair and inequitable taking of oil. We have orders of the Corporation Commission made pursuant thereto (Basic Order 5414), determining the transportation and marketing facilities and market demands and fixing allowables of production in conformity therewith. We find that neither the act nor any of the orders complained of have ever been adjudged invalid by any court, either temporarily or finally. But, on the other hand, in the case of Russell et al. v. Walker, Frank Russell attacked the validity of the act and the power of the Corporation Commission to make orders thereunder, and its act was held valid and the power to make orders thereunder was approved.

Governor Murray issued two executive orders finding, in effect, that the Corporation Commission orders and the statutes above referred to were being continuously and flagrantly violated to the great injury of the public welfare. He also caused suit to be brought in the district court of Oklahoma county to enjoin violations of the oil proration laws of the state, which case was recently decided in this court on appeal. This is the case of State ex rel. J. Berry King v. H. F. Wilcox, supra. In that opinion we find the following language:

"We are of the opinion that the legislative character of the power so conferred upon the Commission is exclusive. This is a rule-making power, it is in this connection expressly delegated to the Corporation Commission. Being legislative in character, it could not be conferred upon the courts. In re County Commissioners, 22 Okla. 435, 98 P. 557; Pioneer T. T. Co. v. Bartlesville, 40 Okla. 583, 139 P. 694; Reagan v. Farmer's L. T. Co., 154 U.S. 362; Prentis v. Atl. Coast line Co.,211 U.S. 210.

"These conferred powers, legislative in character, when exercised by the promulgation of rules, regulations, and orders, have the force and effect of statutory law of the state. They are rules of action which those governed thereby must obey. Grand Trunk R. Co. v. Co. v. R. R. Commission,221 U.S. 400.

" 'The order is a legislative act by an instrumentality of the state exercising delegated authority, * * * is of the same force as if made by the Legislature, and so is a law of the state.'

"Section 7956, C. O. S. 1921, provides:

" 'The Corporation Commission shall have authority to make rules and regulations for the prevention of such waste.'

"Section 7957, C. O. S. 1921, provides, in part:

" 'The Corporation Commission is authorized to so regulate the taking of crude oil or petroleum from any or all such common sources of supply within the state of Oklahoma, as to prevent the inequitable or unfair taking from a common source of supply, of such crude oil or petroleum by any person, firm or corporation.'

"And provision is made by section 7958. C. O. S. 1921, authorizing the Corporation Commission to prescribe rules and regulations for the gauging of each well and 'to make and promulgate, by proper order, such other rules and regulations and to employ or appoint such agents, with the consent of the Governor, as may be necessary to enforce this act.' "

As to whether and when the Governor may call out the militia is a matter of discretion with him. With that the court has nothing to do. He is vested with power and duty of causing the law to be faithfully executed, and it is within his discretion as to when it is necessary for him to interpose the militia for the enforcement of the law. As long as he exercises purely executive functions and powers within the Constitution, then he may not be interfered with by any court. If he abuses this discretion, he is answerable only to the Legislature and the people. But if he undertakes to legislate rules or penalties and then enforce the same, a court of equity may restrain him or his agents. He can only enforce valid existing laws. He cannot make laws. The militia may only be used as an aid to civil authorities in the enforcement of our laws. Fluke et al. v. Canton, 31 Okla. 718, 123 P. 1049.

In the instant case the plaintiff complains that it is entitled to an injunction against Lieutenant Colonel Cicero I. Murray and the militia under his charge. It complains of an executive order which it says seeks to deprive the plaintiff of plaintiff's property without due process of law. The executive may not legislate, but through the militia has only the power to see that the laws of the state are faithfully executed. As for example, the military may be used by the Governor where necessary to aid district courts to put into effect its judgment and decrees in aid of its equity powers. In the case of R. S. Sterling, Governor, v. E. Constantin, the United States Supreme Court held that the civil court might enjoin the militia where it attempted to take or was taking private property from an owner thereof without due process of law. I approve the view that "The military shall be held in strict subordination to the civil" (sec. 14, art. 2, of the Constitution), and that where the militia, acting under any executive order, seeks to deprive the owner of his property without due process of law, such attempted act is subject to review by, and under the control of, the courts. As was said in the Sterling Case, supra:

"The proper use of that (military) power in this instance was to maintain the federal court in the exercise of its jurisdiction and not to attempt to override it, to aid in making its process effective and not to nullify it; to remove, and not to create, obstructions to the exercise by the complainants of their rights as judicially declared."

And as was said in the same case:

"What are the allowable limits of military discretion and whether or not they have been overstepped in a particular case, are judicial questions."

Plaintiff complains that neither the Chief Executive nor the militia of this state may determine whether or not it has unlawfully produced oil from its wells to the extent that its wells could be shut down by a military order. It argues that there has been no adjudication by any legal tribunal as to whether or not it has overproduced or violated any of the orders or statutes relative to conservation or proration and that no executive fiat or determination by the militia on this question will enable Lieutenant Colonel Cicero I. Murray to shut down its wells. This argument is sound and follows the law.

If this were the only question involved and was based on facts, I would agree with plaintiff and agree that the injunction should be granted. After calling out the militia, neither the Governor nor officers under his command have any power to sit as a court in judgment over the rights of property, but plaintiff has another barrier to overcome before it is entitled to the relief sought as contended. It has come into an equity court seeking an injunction against the militia without first pleading that it has not violated the statutory laws or orders of the Corporation Commission. Before the plaintiff is entitled to the equity relief complained of, it must be first shown that it comes into court with clean hands and that it is purged from any wrongdoing on its part and that it has not violated the statutes or orders upon which the stamp of approval has been placed. The equity phase of this question is treated at greater length hereafter.

Plaintiff complains, further, that the executive orders pleaded herein, being legislative in character, provide for the closing down of its wells unless it pays one-fourth of one cent per barrel to pay the expense of enforcing the proration statutes and that for failure to pay the same the executive order provides for the closing of its wells. This contention on plaintiff's part, standing alone, would entitle it to the relief sought. Neither the Corporation Commission nor the Governor has any authority to make such levy, or to close producing wells for failure to pay such assessment. It is the Legislature's duty to provide for the maintaining of the militia. Section 40, art. 5, Constitution of Oklahoma. If plaintiff were in this court on this contention and no equities intervened, I would approve the relief prayed for. This contention alone as to the law is correct.

Plaintiff complains, further, that the effect of the executive flat and the taking possession of its wells amounts to a military receivership. Also that the Supreme Court of the United States in the Champlin Refining Co. Case, supra, held section 9 of the act to be invalid. This was the section providing for a receivership in a court of competent jurisdiction for any person, firm, or corporation violating the provisions of the acts in question. This contention, standing alone, would also entitle the plaintiff herein to the relief sought, if no equity question intervened. While not called upon at this time to pass upon this question, and while saying here that there cannot be any military receivership as contended in plaintiff's argument, yet I desire to point out that this court has already held in the Wilcox; Case referred to above that the district court of this state has equity jurisdiction to enjoin the violation of the proration laws. We regard it altogether appropriate to observe here that in the event it becomes necessary, and in order to carry out the purposes of the injunction, the equity court may in a proper case appoint a receiver. In this connection it will be observed that section 518, C. O. S. 1921, provides the cases in which receivers may be appointed by the district court. The 3rd subdivision thereof provides that they may be appointed "after judgment to carry the judgment into effect."

This authority of the equity courts to appoint a receiver for the purpose of carrying the judgment into effect is recognized and the rule in connection therewith is stated in 19 R. C. L., at page 19, and also appears in 23 C. J., at page 53, sec. 6, in the following language:

"The power to appoint a receiver when one is necessary for the preservation of property pending an injunction suit is incident to the power to grant an injunction and the appointment may be made when it is necessary to render aninjunction effective."

Numerous authorities are cited in support of the text. This power to appoint a receiver in proper cases as an incident to the enforcement of an injunction does not in anyway conflict with the rule of the Supreme Court of the United States in the Champlin Case which held that the section of the proration laws authorizing the appointment of the receiver was invalid by reason of the fact that the receivership therein contemplated was in the nature of a penalty, inasmuch as it provided for the taking possession of the property and for the marketing of the oil produced thereon and was not contingent upon the necessity of enforcing appropriate injunctive relief. Whereas, the receivership herein referred to and approved contemplates the existence of a proper case for injunctive relief and the necessity of a receivership in order that the injunction may be properly enforced, and then only for the purpose of enforcing the injunction. As was said by Chief Justice Riley in the Wilcox Case, supra:

"It is our view that injunctive relief exists without special provision therefor by legislative act, and that the district courts have jurisdiction to apply such relief in proper cases for the enforcement of rights, public and private, existing under and by virtue of the proration laws of Oklahoma."

After all, the primary object of proration is the protection of the common source of supply and to prevent the unequal taking therefrom.

And now we come to the equity of plaintiff's position in the case at bar, which we consider a controlling factor. The petition of the plaintiff in this case alleges an unlawful taking and wrongful withholding of the possession of property belonging to the plaintiff. It seeks injunctive relief against the defendant Cicero I. Murray as Lieutenant Colonel of the militia to restore it to possession of its property and to prevent future interference with that possession.

The plaintiff, however, does not in its petition offer to abide by the orders of the Corporation Commission regulating the ratable taking of oil from the common source of supply, nor does it allege a previous compliance with these orders. It fails to offer to purge itself of any previous inequitable or unlawful taking by lowering its production until previous overproduction shall have been equalized. In this connection it should be noted that basic order No. 5414 of the Corporation Commission provides for the shutting down of overproducing wells in the following language:

"1. All overproduced wells shall be entirely shut in until they have made up such overage and are again 'even'."

It has previously been pointed out that this and other proration orders have been held valid by this court and the Supreme Court of the United States. This particular character of provisions obtained the approval of this court in the case of H. F. Wilcox Oil Gas Co. v. State et al. 162 Okla. 89,19 P.2d 572, wherein the court in the opinion used the following language:

"* * * The Corporation Commission has the authority to order all oil well closed because it is overproduced."

There is some division of authority as to whether the person who appeals to a court of equity need make a specific offer in his petition to do equity in the premises. (21 C. J. 400, paragraph 421.) However, it is fundamentally recognized in equity jurisprudence that "He who comes into equity must come with clean hands," and "He who seeks equity must do equity."

The absence of these equity elements in the pleading may be excused for the reason that when this action was originally commenced it was the theory of the plaintiff that the orders of the Corporation Commission relating to proration were invalid and that their invalidity might be judicially determined by the district court. However, that position is now untenable for the reason that the decision in this case denies the jurisdiction of the district court to review the orders and they now stand as valid and legal and should be so treated by the trial court.

Confronted as it is with these orders of the Corporation Commission regulating the production of oil, it becomes important to determine whether it is necessary for the plaintiff, in order to obtain equitable relief, to show that it is not guilty of misconduct in the premises by an unequal taking of oil from the source of common supply, in violation of the Corporation Commission orders. If it is guilty of such conduct, must it offer to do equity by suffering its wells to remain closed until the lack of production of each well equals the previous overproduction, if any? I feel that it is incumbent on this court to determine this question in view of the fact that counsel for both plaintiff and defendant stated in oral argument (limiting the confession for the purpose of the argument) that the wells of the plaintiff have been previously overproduced.

The fundamental basis of all proration orders is to provide a just and ratable taking of oil from a common source of supply. An overproduction on the part of one producer is an infringement upon the valuable property rights of every other producer taking from the same source of supply. Should the courts of equity of this state lend their process to aid this plaintiff or any other plaintiff in the removal of obstacles when such a removal is to be followed immediately by an infringement on the property rights of the neighbors of the person who has invoked the jurisdiction of the court? Especially should this be done when such infringement is in violation of a lawful order of the Corporation Commission? It appears to me that in a case of this character the preservation of the maxims of equity jurisprudence demand that the courts of equity require as a condition precedent to the granting of relief in such a case that the plaintiff either come into court with clean hands untarnished by any unratable taking of oil, or that plaintiff be required to purge itself of any inequitable or unratable previous overtaking from the source of common supply. This position, in my opinion is not only consistent with the principles of equity, but is founded upon adequate authority. In the case of Marrs v. City of Oxford et al.32 F.2d 134, the Circuit Court of Appeals of the United States of the Eighth Circuit was confronted with a similar problem to the one involved in the case at bar. The plaintiff was seeking injunctive relief against the enforcement of an alleged invalid ordinance which regulated the drilling of oil wells within a certain portion of the city limits of the city of Oxford. In denying the plaintiff equitable relief the court said in syllabus 3:

"Equity will not enjoin enforcement of ordinance regulating drilling for oil within city limits, even if invalid, purpose of which is to protect the rights of all surface owners in pool and yet limit number of wells to be drilled at the suit of one to enable him to drill in violation of the ordinance and appropriate all the oil he can produce without regard to rights of other surface owners."

And again in the opinion it quotes with approval the following language of the Supreme Court of the United States in the case of Ohio Oil Company v. Indiana, 177 U.S. 190, 20 Sup. Ct. 576, 44 L.Ed. 729:

"But there is a co-equal right in them all to take from a common source of supply the two substances which in the nature of things are united, though separate. It follows from the essence of their right and from the situation of the things as to which it can be exerted, that the use by one of his power to seek to convert a part of the common fund to actual possession may result in an undue proportion being attributed to one of the possessors of the right, to the detriment of the others, or by waste by one or more, to the annihilation of the rights of the remainder. Hence it is that the legislative power, from the peculiar nature of the right and the objects upon which it is to be exerted, can be manifested for the purpose of protecting all the collective owners, by securing a just distribution, to arise from the enjoyment by them, of their privilege to reduce to possession, and to reach the like end by preventing waste."

And followed that quotation with the following statement:

The basis of a statute, suggested in the Indiana case, is the governmental power to equally protect each surface owner in his right to a common fund. Complaint is made that the city was not vested with that power. Let it be conceded; still it does not follow that a court of equity will lend its aid to one in his effort to take all of a fund in which there is a community interest."

It seems to be equally obvious that the equity courts of this state should not lend their aid to one in his efforts to take a disproportionate share of a common supply of oil in which there is a community interest.

The equity doctrines applicable here are clearly stated in 10 R. C. L. p. 389, from which we quote in part:

"The exclusion of a plaintiff from the peculiar favors of courts of equity results equally, however, where his conduct has been unconscionable by reason of a bad motive or where the result in any degree induced by his conduct will be unconscionable either in the benefit to himself or the injury to others."

And in 10 H. C. L. P. 392, where the text reads as follows:

"Anyone going into a court of equity and asking its aid, whether that aid be such as could be obtained in a court of law, or whether it be of a character obtainable only in a court of equity, submits himself to the jurisdiction of the court, and in asking its aid subjects himself to the imposition of such terms as well-established equitable principle would require."

These principles are also supported and indorsed by the decisions of this court in Dow v. Worley, 126 Okla. 175,256 P. 56; Robinson v. First Nat. Bank, 107 Okla. 160, 231 P. 502; Murphy v. Garfield Oil Co., 98 Okla. 273, 225 P. 676; and International Land Co. v. Marshall, 22 Okla. 693, 98 P. 951.

It seems to be that a review of the foregoing authorities will permit but one conclusion, namely, that in order to obtain equitable relief in the trial court the plaintiff herein should be required either to show that he is not guilty of a previous violation of the proration orders, or if he has violated the same, to purge himself of such unratable taking by refraining from the production of oil until the previous unratable production has been equalized.

In conclusion, any view with reference to the law applicable to the case at bar may be summarized as follows:

1. District courts have no power to reverse, review, vacate, correct, or annul an order of the Corporation Commission. Such orders, when made in the course of official duties, are presumed to be valid, and are to be so treated by inferior courts until their invalidity has been judicially determined in a proper proceeding on appeal to this court, and in the event injunctive relief should be necessary against the orders of the Corporation Commission, this court is vested with exclusive jurisdiction.

2. The Chief Executive of this state has authority to call out the militia to aid in the execution of the laws of the state.

3. The Chief Executive of this state has no authority to legislate or prescribe rules or penalties of his own with reference to property rights, and if he makes such rules and regulations, they are subject to review and to the injunctive processes of a court of equity.

4. The Chief Executive of this state has no authority by fiat to impose charges upon operators in an oil held on a per barrel basis to enforce proration laws, or to shut down wells by executive order for a failure to pay said charges by way of penalties.

5. The Chief Executive of this state may use the militia in proper cases to aid in the enforcement of the orders and judgments of a court of equity.

6. Jurisdiction of courts of equity may be invoked in aid of the enforcement of the Corporation Commission, and injunctive relief in a proper case may be supplemented by a receivership.

7. As a prerequisite to equitable relief, plaintiff must come into court with clean hands or must purge itself of previous inequitable conduct and must offer to do equity.

In accordance therewith, we believe all injunctive relief asked against the Corporation Commission and the members thereof should be in all things denied. As to the defendant Lieutenant Colonel Cicero I. Murray, the cause should be remanded to the district court of Oklahoma county, where the cause may proceed to trial as against him in accordance with the views outlined herein. As a condition precedent to equitable relief against Lieutenant Colonel Cicero I. Murray, the plaintiff should show himself entitled thereto in accordance with the views herein expressed.