The opinion
OSBORN, J.
(dissenting). In dissenting-in part from the majority opinion of the
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court, I deem it proper at least briefly to state my views. 1 shall not attempt to elaborate upon tbe compelling principles which require my dissent.
First. I desire to concur in that part of the majority opinion holding that the district court is without jurisdiction to review, reverse, correct, or annul the orders ot‘ the Corporation Commission within the scope of its authority. Under the express provisions of section 20, art. 9, of the Constitution, exclusive jurisdiction is conferred upon this court,
Second. The plaintiff is not entitled to any equitable relief, for the reason that the petition itself does not allege that the plaintiff has not heretofore committed waste within the meaning of our statutory provisions relating to the fair and equitable taking of oil from a common source of supply, which statutory provisions have been declared valid by this court and Iby the Supreme Court of the United States. C. C. Julian Oil & Royalties Co. v. Capshaw, 145 Okla. 237 , 292 P. 841 ; Champlin Ref. Co. v. Corporation Commission, 286 U. S. 210 , 52 S. Ct. 559 , 76 L. Ed. 1062 . On the other hand, the allegations of the petition disclose a diligent effort to avoid the orders of the Corporation Commission, and an attempt to defeat the same in a court wholly
without
jurisdiction
to
review said orders. Not only should plaintiff allege, but it should also prove, under said allegation, that it lias not heretofore violated tbo public policy of the state as contained in the provisions of law relating to the production of oil, and the orders of the Corporation Commission made pursuant to authority therein vested, but to induce equity to intervene, it should also express its willingness to operate its property within the spirit and limit of the statutory and regulatory requirements of the law and its constituted governing body. “He that hath committed iniquity, shall not have equity.” International Land Co. v. Marshall, 22 Okla. 693 , 98 P. 951 ; Marrs v. City of Oxford, 32 F. (2d) 134; Wellsville Oil Co. v. Miller, 44 Okla. 493 , 145 P. 344 ; Bearman v. Dux Oil & Gas Co., 64 Okla. 147 , 166 P. 199 ; Deweese v. Reinhard, 165 U. S. 386 , 41 L. Ed. 757 .
Third. Section 2, art. 6, of the Constitution provides:
‘'The supreme executive power shall be vested in a Chief Magistrate, who shall he slylod ‘The Governor of the State of Oklahoma’.”
Article 4 of the Constitution provides:
“The powers of the government of the slate of Oklahoma shall be divided into throe separate departments), the legislative, executive and judicial, and except as provided in this Constitution, the legislative, executive and judicial departments of government shall be separate and distinct, and neither shall exercise tbe powers properly belonging to either of the others.”
Section 8, art. 6, of tbe Constitution provides :
“Tlio Governor shall cause the laws of the state to be faithfully executed, * * * and he shall be a conservator of the peace throughout the state.”
Section 0, art. 6, of the Constitution provides :
“The Governor shall be Comimander-in-Chief of the militia of the state except when in service) of the United States, and may call out the same to execute the laws, protect the public health, suppress insurrection and repel invasion.”
Under the express provisions of article 4, supra, the three departments of government are free and independent of each .other. The judicial department can no more control the executive department than can the executive department control the judicial department. This has heretofore been the holding of 'this court. In tbe case of State ex rel. Attorney General v. Huston, 27 Okla. 606 , 113 P. 190 , Mr. Justice Williams, speaking for the court, said:
“In this) action the question of jurisdiction is squarely raised by the counsel for the Governor, and we conclude that the courts of this state may not control the actions of the Chief Executive of the state. But, in so holding, it does not follow’ that the Governor of a state is above tbe law. He and his acts are as much subject to the law as the humblest citizen of the commonwealth. But a tribunal other than the courts must be resorted to for a correction of his official wrongs, if any, t.o wit, the Legislature. So far as his official acts may be contrary to law, and therefore void, that question1 may be raised by private parties before the courts in' determinations as 'to private rights when the Governor is "fldt' a necessary party.”
See, also, Norris v. Cross, 25 Okla. 287 , 105 P. 1000 ; City of Oklahoma City v. Haskell, 27 Okla. 495 , 112 P. 992 ; State v. Cruce, 31 Okla. 486 , 122 P. 237 .
The statutes declaring the public policy of the state relating to the production oE oil having been declared valid, and the basic order of the Corporation Commission thereunder being a legislative act. “by an instrumentality of the state exercising dele
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gated authority1' and having “the same force as if made by the Legislature” (Grand Trunk R. R. Co. v. Railroad Commission, 221 U. S. 400 ), the Governor issued an “Executive and Military Order” wherein he recited:
“Whereas, the Corporation Commission has no. authority to enforce its orders other than to fine, as for contempt, and grave doubt exists that it has this authority, but, if sp„ this in effect is but to license the ' .violation . of the law; and
“Whereas, great quantities of oil has been and is now being- taken out of the field by certain companies, in violation of the pi-oration orders of the commission; and
“Whereas, an honest, rigid enforcement of the law is essential for its prevention, and particularly for maintaining a reasonable and stable price for crude oil and its by-products, and for the collection of rev-' enues due ihe state and those inuring to the school fund on the school lands leased for oil: and
“Whereas, it is incumbent upon the Governor,- under article 6 of the Constitution, to see that the laws are upheld. * * * Tt therefore becomes essential for the Governor of the State of Oklahoma to exercise such executive powers as Chief Magistrate, and to invoke military rule and the military arm of the state for the purposes aforesaid;
Thereafter, the Governor issued a further or supplemental executive and military order, reciting:
“Now, therefore, it is declared by the Chief Executive that it was and is the purpose and intention of the said order to furnish the force and means necessary to enforce and carry out the orders of the Corporation Commission, made and promulgated for the purpose of regulating the production, transportation, and marketing of crude oil in the Oklahoma City field, the Corporation Commission being powerless to enforce its own orders. * * *”
In promulgating these orders, we think the Governor was vested by the Constitution with a discretion as the Chief Magistrate- of the state, which, when exercised by him, was conclusive of the necessity of his action, ,and not reviewable by the courts. Moyer v. Peabody, 212 U. S. 78 ; Sterling v. Constantin, 53 S. Ct. 190 .
The power and duty to cause the laws to be faithfully executed, and the discretion to call out the militia for that purpose, are executive functions which are committed to the executive department of our government, and to say that the judicial department of our state can control the exercise of such function is to permit the .judicial department. to exercise executive functions, and to strike down the theory of three separate, independent, and co-ordinate branches of our government. If the judicial branch cannot interfere with the executive branch in calling out the militia, it logically follows that it cannot interfere with the use of such militia when' acting under orders from the executive branch.
The Constitution enjoins upon the Governor the duty to faithfully execute the laws and commits into his hands the power to call out the militia to perform this duty. If he is commander-in-chief of the militia when they are on dress parade, he is commander-in-chief when they are acting under his orders authorized by the Constitution itself. Eor his errors of judgment and discretion, or his invasions of personal or property rights, he is answerable to the people of his state who placed these high responsibilities in his hands, but he is not answerable to his co-equal and co-ordinate branch of the government — the judicial department —nor is he answerable to the other co-equal and co-ordinate branch of the government— the legislative department — except as provided by the Constitution, and that by way of impeachment proceedings. Not even this court, and certainly not the district court, an inferior tribunal also established by the same Constitution, can substitute itself for the supreme executive authority vested by the Constitution and the people in the Governor.
In the case of Martin v. Mott, 25 U. S. 39 , it is said:
“* * * The power itself is confided to the Executive of the Union, to him who is, by the Constitution, ‘the commander-in-chief of the militia, when called into the actual service of the United States,’ whose duty it is to ‘take care that the laws be faithfully executed,’ and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions. He is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts. If he does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provisions of the law; and it would seem to follow as a necessary consequence that every act done by a subordinate officer, in obedience to such orders, is equally justifiable. The law. contemplates that, under such circumstances, orders shall be given to carry the power into effect; and it cannot, therefore, be a correct inference that any other person has a just right to disobey them. The law does not provide for-any appeal from the judgment ofjhe President, or for any right in subordinate officers to review his
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decision, and in effect defeat it. * * * It is no answer 'that sucli a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the Constitution itself. In a free government, the- danger must be remote, since in addition to the high qualities which the Executive must be presumed to possess, of public virtue, * * * the frequency of elections, and the watchfulness of the representatives of the nation, carry with them all the checks which can be useful to guard against usurpation or wanton tyranny.”
This same language can be applied to the Chief Executive of a state and his acts under the Constitution, especially in so fai-ns Judicial review may be had in the state courts. See: State v. Holden, 64 N. C. 829 ; Appeal of Hartranft, 85 Pa. 433 ; Kendall v. United States, 12 Pet. 610 ; In re Boyle, 6 Idaho 609 , 57 P. 706 ; In re Moyer, 35 Colo. 159 , 85 P. 190 ; State v. Brown, 71 W. Va. 519 , 77 S. E. 243 ; Hatfield v. Graham, 73 W. Va. 759 , 81 S. E. 533 ; In re McDonald, 49 Mont. 454 , 143 P. 947 .
When the laws of the state are being openly and flagrantly violated; when the machinery of government becomes so weak and impotent that wealthy malefactors can defy the law and smile at its impotency, the Governor may use all the sovereignty of the state, civil, equitable, and military, to uphold the cherished laws and public policy of the state. The courts cannot be made a sanctuary whereunto those who have committed iniquity may flee for license to ignore the fundamental laws and public policy of the state. The militia of this state was called into service, not to punish offenders, but to uphold the majesty of the law. The courts of the state are without power, authority, or jurisdiction to substitute themselves for the Chief Executive, on whom the Constitution has placed this responsibility.
I do not mean to intimate herein that there is not a tribunal authorized to review the action of the Chief Executive in case he or his agents violate guaranteed constitutional rights. Such power of review, however, is vested in the federal, instead of the state, judiciary.
There being no jurisdiction in the district court of Oklahoma to inquire into the acts of the militia, and no process to which they are amenable, and this cause having come to this court on appeal from a judgment of the district court, I deem that the other questions discussed in the majority opinion are wholly beyond the proper province of this court, and I therefore dissent.