Russell Petroleum Co. v. Walker

ANDREWS, J. The plaintiff in error commenced an action against the defendants in error in the district court of Oklahoma county. The trial court held that it was “* * * without power, jurisdiction or authority to enjoin the Corporation Commission or the defendants Paul Walker, Roy Iíugihes, and Ci O. Ohilders, constituting staid, Commission, from trying the plaintiff upon any charge, * * *” and that it was “* * * without power, jurisdiction, or authority to enjoin the defendant Cicero I. Murray, his agents, and servants, and those acting under his direction as prayed in plaintiff’s petition. * * *” From the judgment based thereon the plaintiff appealed, to thisi court. Hereinafter the parties: will be (referred to as) plaintiff and defendants. The first question presented by the plaintiff is: *217 “Does the district court of Oklahoma county, Okla., sitting in equity, have jurisdiction to enjoin the Corporation Commission from closing- an oil well for a violation of its orders or some one of them, in a proper ease?” The plaintiff says that the trial court renounced jurisdiction as to the orders of the Corporation Commission upon the theory that section 20, art. 9, of the Constitution forbade its exercise thereof. That section provides that: “* * * No court of this state (except the' Supreme Court, by way of appeals as herein authorized) shall have jurisdiction (o review, reverse, correct, or annul any nction 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.” That provision is applicable only to actions of the Corporation Commission which are within the scope of its authority. That provision and the provisions of section 2, art. 7, of the 'Constitution, when construed together, vest this court with exclusive jurisdiction to review, reverse, correct or annul any action within the scope of the authority of the Corporation Commission. By the provisions of section 10, art. 7, of the Constitution, district courts have jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction was, by this Constitution, or is. by law, conferred on same other court. Since exclusive jurisdiction was conferred upon this court by the constitutional provisions, supra, the district court did not have jurisdiction to review the orders of the Corporation Commission which were within the scope of its authority. This court in Russell v. Walker, 160 Okla. 145, 15 P. (2d) 114, held that the Corporation Commission had jurisdiction, under the provisions of sections 11565 to 11574, inclusive, O. S. 1931 (sections 7954 to 7963, inclusive, C. O. S. 1921), to impose and enforce reasonable regulations for the production of oil from a common source of supply. That 'decision was based on the decision of this court in C. C. Julian Oil & Royalties Co. v. Capshaw, 145 Okla. 237, 292 P. 841. and the decision of the Supreme Court of the United States in Champlin Refining Co. v. Corporation Commission, 286 U. S. 210, 52 S. Ct. 559, 76 L. Ed. 1062, in each of which decisions the legislative act„ supra, was held neither to be repugnant to the provisions of the federal nor the state Constitution. In the trial court the plaintiff contended that the Corporation Commission was assuming and claiming the right to order the wells of the plaintiff: closed for violation of certain orders theretofore made by the Corporation Commission. The plaintiff contended then and contends, now that the orders said to have been violated were void: for the reason that they operated as a discrimination against the plaintiff. Thpse orders were legislative in character and were made under the authority granted to the Corporation Commission by the Constitution and the authority delegated to'the Corporation Commission by the Legislature. They were not orders judicial in their character. The making of the legislative orders, supra, was within the scope of the authoi*ity of the Corporation Commission. This court will assume that the Corporation Commission will act within the scope of its authority when it proceeds, if it over does, to make an order judicial in character with reference to the property of the plaintiff. Prom that order an appeal may be taken to this' court or this court may exercise its general superintending control over the Corporation Commission and issue a writ of prohibition. If either procedure is followed, this court will review any judicial order so made, and, at the same time, it will review the legislative orders upon which the judicial orders are based. Thereby the plaintiff is afforded an adequate remedy. We have not overlooked the decision of this court in Pioneer Telephone & Telegraph Co. v. State, 40 Okla. 417, 138 P. 1033, cited by the plaintiff. The district court did not err in denying the application for injunction against the Corporation Commission, and its judgment thereon is in all things affirmed. The second question presented by the plaintiff is; “Did the district court err in holding that, because of the orders of the Governor hereinbefore set forth, it had no jurisdiction or authority to control the defendant in error Cicero I. Murray and those Who acted with him and under his command and direction?” It appears from the record that, while *218 the Corporation Commission had. made an order fixing the allowable flow of all wells in the Oklahoma City oil field and other orders legislative in their character for the prevention of waste, no charge of overproduction by the plaintiff had been filed with the Corporation Commission; that the Corporation Commission had made no order directing the search, breaking- or entering into, or the seizure of any of the property owned or operated! by the plaintiff, and that Cicero 1. Murray was not an agent of the Corporation Commission. In a brief the defendants state: “As soon as possible, after this case was determined, proceedings were filed before the Commission for a determination of the amount of Russell Petroleum Company’s overproduction, and the period of time that should! elapse before it was legally entitled, to produce again, and that would have been determined long since but for the Russell Company^i ¡application to this court for a writ of prohibition against the Commission prohibiting) it from hearing- and determining the matter,' which is still pending. The intent has been to follow the due and orderly process of law, and to release the wells when the proper time found by the Commission under its proration orders, had expired. ” Thereby, in effect, they say that they took charge of the I property of this plaintiff, closed its wells, and thereafter proceeded before the Corporation Commission for a determination of the amount of overproduction by the plaintiff. If they had proceeded before the Corporation Commission prior to taking charge of the plaintiff's property, and if, prior thereto, the Corporation Commission had found and determined that the plaintiff had overproduced its wells, and if, prior thereto, the Corporation Commission had ordered those wells to be closed, a materially different case would have been presented. While they say that their Intention was to follow the due and orderly processes of law, their statement of facts is to the contrary. The executive orders, which they offer as a dlefense for their actions, show upon their face that they apply to every oil well in the Oklahoma City field without regard to whether or not the owners or operators thereof have violated any provision 'of the statute. The orders show an intention to take charge of the Oklahoma City oil field for the purpose of preventing any violation of the statute by any person operating any well in that field. Had the defendants intended to follow the due and orderly processes of law, as they contended in their briefs, they would have waited until the Corporation Commissioa had made a finding of fact and an order based on that finding which authorized, the closing of the wells1 of this plaintiff. While they say in their brief that this is a mere case to prevent a party from defiantly, persistently, and constantly violating the law, they nowhere contend, and on oral argument they admit, that there has been no determination by the Corporation Commission or by any court that the plaintiff has violated any law. In the trial court the plaintiff contended that Cicero I. Murray and the state militia under his charge had seized the wells of the plaintiff and were holding the same and the property of the plaintiff on which the wells were situated, without any authority of law. The contention that those acts1 were without authority of law was based on the contention that the Corporation Commission had made no order finding or determining that the plaintiff had violated the provisions of any statute or any order made thereunder ; that there were no valid orders of the Corporation Commission to be enfoi'ced; that the defendant Cicero I. Murray was not an officer, agent, or representative of the Corporation Commission, and that he was. not properly charged with the duty of enforcing- any order promulgated by the Corporation Commission. As a defense thereto it was contended that Cicero I. Murray and the militia under his charge were acting under authority of two orders made by the Chief Executive of the state of Oklahoma. The first of those orders was as follows: “State of Oklahoma “Executive Department. “Executive and Military Order. “Whereas, the decision of the Supreme Court of the United States in the. Ohamplln Case, recently decided, declared the penal clause of the law for violation of the pro-l-ation law not drawn with such specific care as to .render the same valid, and further held that the provision authorizing receivership for wellsi violating the law was invalid; and, “Whereas, the Corporation Commission has no authority to enforce its orders other than to fine asi for contempt, and grave doubt exists that it has this authority, but, if so. thisi, in effect is but to license the violation of the law; and, “Whereas, great quantities of oil has *219 been and is now being taken out of tbe field by certain companies, in violation of tbe proration orders of tbe Commission; and, “Whereas, an bonest, rigid enforcement of tbe law is essential for its prevention, and particularly for maintaining a reasonable and stable price for crude oil and its by-products, and for tbe collection of revenues due tbe state and those inuring to tbe school fund on the school lands 'leased lor oil; and, “ Whereas', it is incumbent upon tbe Governor, under article 6 of tbe Constitution, to see that the Raws/ are upheld, and, for such purpose, be is made Commander-in-Obief of tbe military forces, with a further grant of supreme executive power under tbe limitations of American institutions and constitutional instruments: It, therefore, becomes essential for the Governor of tbe state of Oklahoma to exercise such executive powers as chief magistrate, and to invoke military rule and tbe military arm of tbe state, for tbe purposes aforesaid: “Now, therefore, I, Wm. H. Murray, the Governor of the state of Oklahoma, do hereby and) '.hereon declare that the military zone around the several oil wells contained in my order of August 4, 1981, be continued, not only for the purpose of watching the enforcement of orders of proration but for the purpose of actually prorating the oil output in the Oklahoma City field, and to control the transport of such oil through the pipe lines and its storage tanks ; and for said last purpose there is hereby also declared a military zone around each and every storage tank to a distance of twenty-five (25) feet on each side thereof, the said military zones to include in addition the selection by the Governor of proration officers and all persons having to do with the enforcement of such orders; to fix their compensations, time and hours of employment; to provide for the expense for compensating them other than from state funds. “Second: For the purpose of effectuating the foregoing, the production of oil. and the limiting of such production to the allowable, equitable prorated, there shall be selected one umpire and such clerks, as may be necessary, together with thirty (30) militia; such militia shall be stationed on said oil fields and zones in three shifts of eight (S) hours each, as follows: From eight o'clock a. m., until 4:00 o’clock p. m. each day, four' (4i) of said militia shall be on watch,; and between 4:00 p. m. and !12::00 o'clock midnight, ten (10) of such militia shall be on guard; and, between midnight and 8:00 o’clock in the morning sixteen (1@) of said militia shall be on guard,-— all under the immediate direction of Lieutenant Colonel Cicero I. Murray, and subject to his immediate order, and. ultimately, under the direction of the Adjutant General or the Governor, as Commander-in-Chief. The compensation of said thirty (30) militia shall toe three ($3) dollars for such eight hours’ service each, day for persons without automobiles; and, for persons requiring automobiles, the compensation shall be fixed by Lieutenant Colonel Cicero I. Murray. “For the purpose of investigating orders, for eq-uitable proration, and to recommend to the Governor (the commander-in-chief), the allowable for each of said wells in said field,, there is hereby created a proration board, to consist of the five following persons : “Lieutenant Colonel Cicero I. Murray; “The Proration Umpire; “One member to be selected by and from producers who have neither pipe lines nor refineries; “-One member to toe selected toy and from producers who have refineries; and, “One member to toe selected from and by che owners of pipe lines. “The said proration board shall make findings from time to time, and recommend allowables for the field, which shall be the market demand, upon approval thereof by the Governor; provided that the orders of the Corporation Commission heretofore made for the month of June shall continue in force until the first of July, and thereafter, until other orders are .made and approved, as aforesaid. “Third: The umpire is hereby directed and required to ’ excavate around) any and all wells where it is believed or alleged there are secret pipes used for the purpose of filching more than their allowable, to prevent s,uch illegal taking as may bo discovered. “Fourth: Each and every pipe line owner, manager, or operator of pipe line, transporting oil out of the field, and. to all refineries surrounding the field, to loading racks 'and storage tanks, for the purpose of storage, other than storage on the lease, is hereby required to equip immediately, but/and not later than August 1st, with, meters sufficient to determine as accurately as possible the amount and flow of 'oil through said pipes, and said -pipe line owners, managers, or operators! are hereby required to furnish the umpire with the amount of oil coming from each and every well or producer in the field daily, in order that proration may toe carried out in truth) and in fact, and the law, in all things, upheld. “Fifth: It is hereby ordered that the entire expense for the umpire and all clerks, assistants, auditors, bookkeepers, and other» under his charge, together with the compensation for the militia, aforesaid, shall be *220 assessed proportionately against tlie producers in tbe field, subject to tbe proration orders, not as a tax tout as an expense lor such police and military regulation of tbe field, wells, pipe lines^ storage tanks, and other means of producing, refining, and transporting, and each and all of said producers are hereby assessed one-fourth (%) of one cent per barrel of all oil produced for the payment of expenses herein incurred, provided that in the event said one-fonrth (Vi) of one cent a barrel shall have accumulated! at the end of any ninety-day period, beginning with July 1st, an amount in excess of that required; then, in that event, collection for such purposes” shall cease for a time or period, to consume the excess so collected; and, when thug consumed, the umpire shall at once begin to re-assess and collect said one-fourth (%) of one cent a barrel on each and every barrel produced, as before stated; and, as a penalty for nonpayment, Lieutenant Colonel Cicero I. Murray is hereby authorized and directed by general order to close down the well or wells op any company or producer that does not by the 10th of each and every month, make payment of said one-fourth (%•) of one cent, as aforesaid, until payment in full is made. “Sixth: The umpire, auditors, clerks, and other assistants, together with the thirty (30) guards aforesaid, are hereby covered in and made a part of the militia of the state of Oklahoma. “ Seventh: It is further ordered that the proration board before authorized, established, and created, shall have the power and authority, and are hereby directed to make and promulgate necessary rules and regulations for the purpose of the enforcement of the laws of the state with reference to the proration matters, and to effectuate completely all of the foregoing herein recited, which rules and regulations shall be subject to the approval of the Governor, “Eighth: All authority or powers or functions of the xjresent umpire and proration officials now1 in control of the field are hereby suspended. “Done at the Same Capitol, in Oklahoma City, Oklahoma, on this, the 21st day of Juñe, A. D., 1932. “By the Governor of the State of Oklahoma : “Wm. H. Murray, “Wm. H. Miurray, “Ctomanander-in-Chief of the Militia. “ (Seal) “Countersigned: “Chas. P. Barrett, “Adjutant General. “Attest: R. A. Sneed, “Secretary of State. “By: Una Lee Roberts. “Assistant Secretary of State.” The second of those orders was, as follows : “State of Oklahoma. “Executive Department. “Supplemental Executive and Military Order. (“July 7, 1932 explains order of June 21, 1982.) “Whereas, It has been made to appear that the ‘Executive and Military Order’ issued 'by the Chief Executive of the state of Oklahoma on June 21, 1932, relative to conditions existing in the Oklahoma City oil field, and, the production, storage, transportation, and marketing of crude oil or petroleum in said field, isi not entirely clear in some respects, the said order having been prepared hastily; and, “Whereas, It is the desire of the Chief Executive that the said order may be so clear that there can he no misunderstanding with reference thereto; “Now, Therefore, It is declared by the Chief Executive that it was and is the purpose and intention of-the said order to furnish tlie 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! oil field, the Corporation Commission being powerless to enforce its own orders, and that it was not the purpose or intention of the said Executive and Military Order of June 21, 1932, to suspend, supersede, or in any manner interfere with the Corporation Commission in the exercise of its statutory powers and duties, except to suspend the power and authority of the agents of the Corporation Commission to enforce the orders, rules and regulations of said Commission in the Oklahoma City oil field. “And it fei hereby further declared that it was not the purpose or> intention of the said order that the proration board referred to in said order should in any manner usurp any of the powers or functions of the Corporation Commission, but merely that said proration board should act in an advisory capacity for the purpose of counseling and advising the Corporation [Commission] in the performance of its duties, for the purpose of counseling and advising Lieutenant Colonel Cicero I. Murray in the enforcement of the orders of the Corporation Commission. and for the purpose of keeping the Chief Executive fully advised with reference to conditions existing in the Oklahoma City oil field, and 'as to how the said Executive and Military 'Order of June 21, 1932, is being performed and carried out. “Now, Therefore. I, Wm. II. Murray, the Governor of the State of Oklahoma, do here *221 by order and direct that tlie said Executive and Military Order of June 21, 1932i, be interpreted as herein set forth and explained. “And I do hereby further order and direct that the said order, as herein and hereby explained and interpreted, shall, in all lliings, he and remain in full force and effect, and that it be diligently executed and enforced according to its terms and provisions as herein and hereby explained and interpreted. “By the Governor of the State of Oklahoma : “Win. H. Murray, “Conünander-in-Ohief of the Militia. “(Attest: R. A. Sneed, “Secretary of State. “Countersigned: Ohas. F: Barrett “Adjt. General.” It is contended that the trial court was without jurisdiction to inquire into the authority of the militia and to enjoin the defendants, Cicero I. Murray, his agents and servants and those acting under his direction, from interfering with the property of the plaintiff- That contention is based on a provision of section 8, article 6, of the Constitution, which requires the Governor (o cause the laws of the state to be faithfully executed, and a provision of section 6 of that article which; authorizes the Governor to call out the militia to execute those laws. Those constitutional provisions apply to all of the laws’. Section 7, article 2, of the Constitution is one of those laws. That section provides that no person shall be deprived of his property without due process of law. That provision may not be violated in an effort to enforce some legislative enactment. Reliance may not be had upon a provision of the Constitution authorizing the calling out of the militia of the. state to execute the laws as a defense to actions of the militia which violate the constitutional provision that no person shall be deprived of his property without due process of law. Under the provisions of article 6 and section 1, article 4, of the Constitution, no order, proclamation, or decree of the Governor of the state, as the Chief Executive thereof, has the force of law, the law-making power of the state (being vested exclusively elsewhere. “The military shall bo held in strict subordination to the civil authorities. No soldier shall be quartered in any house, in time of peace, without the consent of the owner, nor in time of war, except in a manner to be prescribed by law.” Section 14, article 2v of the Constitution. In part, the two executive orders are legislative in character. The first paragraph of the first, executive order recites, as a reason for the order, which, in effect, established a military receivership of the Oklahoma City oil field, that the penalties included in the legislative enactment had been held to be invalid by the Supreme Court of the United States. That court, in Champlin Refining Co. v. Corporation Commission et al., supra, held section 9 of the legislative enactment to be invalid. That section provided that any person, firm, or corporation violating the provisions of the act should be subject to have his or its producing property placed in the hands of a receiver by a court of competent jurisdiction, the receivership to extend to the operation of producing wells and the marketing of the production thereof. By the executive orders provision was made for the establishment of a military receivership of the Oklahoma City oil field when no civil receivership thereof was authorized. The second paragraph of the first executive order recites that the effect of the penalty provided! by the Legislature was to license a violation of the law. That reason was stated for an attempt to establish by executive order a more efficient manner or system of handling the matter than had been authorized or provided by the laws enacted by the Legislature. Injunctive process of the courts of this state is available in aid of the execution of the laws of the sítate and to prevent a continued /violation of the laws of the state, where property rights are involved and where there is no adequate remedy at law. .That remedy was available. There was another remedy, that is, “to convoke the Legislature” for the purpose of providing adeqiuate procedure and penalties for the enforcement of the law. Section 7, article 0, of the Constitution, which grants that authority, immediately precedes the section which requires the Governor to cause the laws of the (state to be faithfully executed. No greater penalty or different manner of enforcement may be imposed than that provided by the legislative enactments, and a greater penalty or different manner of enforcement imposed by an executive order is ineffective. It must be kept in mind that the legislative enactment in question is! the only authority for the proration of oil. “The right to reduce oil or gas to possession is a valuable property right.” Wright v. Carter Oil Co., 97 Okla. 46, 223 P. 835. Oil and *222 gas when reduced to possession are property. Before the enactment of the legislative enactment in question, every person had the right to drill wells on his own land and, to take from the pool below all the oil that he might be able to reduce to possession, including that coming from land belonging- to others. Champlin Refining Co. v. Corporation Commission, supra. The Legislature imposed what it considered! to be reasonable regulations to prevent unnecessary loss, destruction, or waste of oil. It also imposed penalties. The invalidity or the inadequacy, if any, of the penalties imposed did not authorize the ¡imposition or enforcement of penalties not provided by law. One of the executive orders directed that an assessment be levied against the producers in the field to pay the expense of police and military regulation thereof, and that for want of payment thereof and as a penalty for a failure to pay the same, the wells of the producer failing to pay should be closed and kept closed i,until payment thereof was- made. That order did not purport to toe under any authority conferred toy law on the Corporation Commission. The Corporation Commission has no such authority-. The Legislature is required to provide for the maintaining- of the militia. Section 40, article 5, of the Constitution. There is no authority of the Chief Executive of this state to levy, or to direct that there be levied, an assessment on any person, firm, or corporation, either as a tax or as an expense for police and military regulation, or to close producing wellsi or direct that they be closed for failure or refusal of the operator thereof to pay' such an assessment. The fourth paragraph of the first executive order recites, as a basis for the order made, that a rigid enforcement of the law was required, “particularly for maintaining a reasonable and stable price for 'crude oil,” and the collection of revenue due to the .state. We note the statement of the Supreme Court of the United States in Champlin Refining Co. v. Corporation Commission, supra, that the Corporation Commission has never made an order under section 2 of the act and that no order has been made by it for the purpose of fixing prices. The executive order was an attempt on the part of the Chief Executive to do that which the Corporation Commission has not clone. While the third paragraph of the first executive order, in effect, recites that great quantities of oil had been and! were being taken out of the field in violation of pro-ration orders of the Corporation Commission it does not recite that this plaintiff had taken or was taking oil from the field in violation of proration orders of the Corporation Commission. Neither the Corporation Commission nor any judicial tribunal established by law has found or determined that the plaintiff has violated any law, or has decreed that the property of the plaintiff should be taken from it and its wells closed. The executive orders of the Governor do not constitute due process of law within the meaning of onr Constitution. We adopt the language of the Supreme Court of the United States in R. S. Sterling, Governor of the State of Texas, et al. v. E. Constantin et al., No. 11453, opinion filed December 12, 1932, 53 S. Ct. 190, as follows: “The assertion that such action can be taken as conclusive proof of its own necessity and most be accepted as in itself due process of law has no support in the decisions of this court” • — as- applicable herein. A portion of one of the -briefs of the defendants is devoted to a discussion of whether or not this 'court may control the actions of the Governor. The record discloses no effort to control the actions of the Governor. The question here is not whether or not the Governor of the state may cali out the militia for the purpose of enforcing the laws of the state. The question here is whether or not the militia may be enjoined when, after it had been called out, it attempts to take, or is taking, private property from an owner thereof without due process of law. The defendants assert that the courts are without authority to enjoin the militia. In the language of Mr. Chief Justice Hughes, in R. S. Sterling, Governor, et al. v. E. Constantin et al., supra: “If this extreme position cou-ld be deemed to be well taken, it is manifest that the fiat of a state Governor and not the Constitution of the United States would be the supreme law of the land * * *” That statement is applicable to the Constitution of the state of Oklahoma. If this extreme position could be deemed to be well taken it is manifest that the fiat of the Chief Executive of Oklahoma and not the Constitution of the state of Oklahoma, would be the supreme law of Oklahoma. The Constitution, and not an order of the Chief Executive, is the supreme law of Oklahoma. The due process clause of the Constitution guarantees protection to the owner of prop *223 -erly against deprivation by the militia as much as it guarantees protection to him against deprivation by any other person. The Chief Executive of the state does not. relieve the courts of their duty to construe and apply the laws by placing a construction upon the laws and by calling out the militia to enforce that construction thereof. The duty of the Chief Executive to cause the laws to be faithfully executed vests him with the discretion to determine whether or not an exigency requiring military aid for that purpose has arisen. His decision of that question is conclusive upon the courts' of this state, but, when the militia is called out for the purpose of enforcing the laws of the state, its actions, which operate to deprive owners of their property without due process of law, are subject to review by and to the control of those courts. As expressed by the Supreme Court of the United States in R. S. Sterling, Governor, et al. v. E. Constantin et al., supra, it does not follow “* * * f-^at evel.y sort 0f action the Governor may take, no matter how unjustified by the exigency or subversive of private -right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. The contrary is well established. What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” In that ease that court said: “Instead of affording them protection in the lawful exercise of their rights as determined by the courts, he sought, by his executive orders, to make that exercise impossible. In the place of judicial procedure, available in the courts which were open and functioning, he set up his executive commands which brooked neither delay nor appeal. ” That statement is applicable to the conditions existing in Oklahoma. Instead of affording the owners of property protection in the lawful exercise of their rights as determined by the courts, the Chief Executive of the state, by his executive orders, has sought to make that exercise impossible. In the place of judicial procedure, available in the courts which were open and functioning, he set up his executive commands which brooked neither delay nor appeal. As was said by the Supreme Court of the United States in R. S. Sterling, Governor, et al. v. E. Constantin et al., supra, if it be assumed that the Chief Executive was entitled to bring military forces to the aid of civil authority, the proper use of that power was to maintain the courts and not to attempt to override them, and to aid in making the process of those courts effective and not to nullify them. It is said that the decision of the Supreme Court of the United States in R. S. Sterling, Governor, et al. v. E. Constantin et al., supra, is not controlling in this case tor the reason that the facts in that ease show that the Governor of Texas sought to iimit oil production otherwise lawful and that the Chief Executive of this state seeks to limit oil production to the amount that may be lawfully produced. That contention is not supported by the record in this case. There is nothing in the record in this case to show that this plaintiff is attempting to unlawfully produce oil, or that it (has unlawfully produced oil. The question as to whether or not it has unlawfully produced oil and the question of whether or not it has .attempted to unlawfully produce oil are questions of fact to be determined as- a part of the due process of law to which the plaintiff is entitled under the due process clause of the Constitution of Oklahoma. Neither the Chief Executive nor the military of this state may determine either question. The power to determine such questions is vested by the Constitution of this state in the Corporation Commission and the courts of this state. While the decision of the Supreme Court of the United States in R. S. Sterling, Governor, et al. v. E. Constantin et al., supra, is not controlling in this case, the principles of law announced and applied therein .are controlling herein. By reason thereof it is unnecessary for this court to analyze all of the many decisions cited in the briefs of the partiesi to this- litigation. We hold that the taking possession of the property of this plaintiff by the militia under the authority of the executive orders, was the taking of the property of this plaintiff without due process, of law in violation of the Constitution of Oklahoma and without authority of law. It is evident that there is no adequate remedy at law for the redress of the injury sustained by the plaintiff. Section 6, article 3, of the Constitution provides that the courts of justice of this 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. The trial court should have heard the evidence and should have made such order against the defendant *224 Cicero I. Murray, and those acting under Ms command, as the evidence warranted. It is contended that the petition of the plaintiff did not state a cause of action because the plaintiff did not allege therein that it was not overprodiueed and that it was not overproducing its wells. In a brief the defendants say: “Of course, if the proration law and the Corporation Commission’s orders were void, as alleged in the petition, though only as a mere legal conclusion, and if the district court had jurisdiction to so adjudge, then, of course, there was no duty or obligation on plaintiff in error’s part to observe that law or those orders, and, therefore, no necessity for its alleging- that it had done so or was willing to do so.” They contend that “* * * under no circumstances could plaintiff in error have been entitled to relief at the hands of the district court 'except upon ground that it had not overproduced, and was not overproducing its wells. * * *” In effect, this is an assertion that the plaintiff did not come into a court of equity with clean hands. The trial court held that it did not have jurisdiction of the subject-matter of the action. The asserted equitable defense may not ¡be considered in determining whether or not a court has jurisdiction over the subject-imatter of the action. It is one to be considered' when jurisdiction of the subject-matter of the action exists. It does not go to the jurisdiction of the trial court to determine the issues. It goes, to the question of whether or not equitable relief should be granted. Such a plea is no justification for the denial of relief against the military occupancy of the plaintiff’s property without authority of law and in violation of the due process of law clause of the Constitution. The trial court held that it did not have jurisdiction of the subject-matter and dismissed the cause for Want of jurisdiction. It was in error in so doing. The Supreme Court of the United States in R. S. Sterling, Governor, et al. v. E. Constantin et al., supra, said that an appropriate answer to such a contention was found in Ex parte Milligan, 4 Wall. 2, 124, and quoted therefrom as follows: “ * * Martial law established on such a basis destroys every guarantee of the Constitution. and effectually renders the “military independent of and superior to the civil power.” * * * Civil liberty and this kind of martial law can not endure together; the antagonism is irreconcilable; and. in the conflict, one or the other must perish’.” The one that must perish is dolermined by the provision of the Constitution of Oklahoma that the military shall be held in strict subordination to the civil authorities. The trial court had jurisdiction of the subject-matter to restrain the defendants Cicero I. Murray and those acting under Ms command. The judgment of the trial court is reversed, and the cause is remanded to that court, with directions to proceed in conformity with the views herein expressed. RILEY, ¡O. J., CULLISON, Y. O. J., and BAYLESS and WELCH, JJ„ concur. SWINDALL and ¡BUSBY, JX, concur specially. OSBORN, J., concurs in part and dissents in part. McNEILL, J., absent.