1. The Governor of a state is subject to the process of the
federal courts for the relief of private persons when, by his acts
under color of state authority, he invades rights secured to them
by the federal Constitution. P. 287 U. S.
2. The suit is not a suit against the state. Id.
3. In a suit to restrain a state official from violating federal
constitutional rights by action under color of state law, the fact
that it may appear that he exceeded his authority under that law
does not deprive the district court of jurisdiction.
Page 287 U. S. 379
4. In a suit to restrain a state official from invading property
rights under color of state constitutional and statutory
provisions, where the validity of such provisions, if construed to
authorize the acts complained of, is challenged by the plaintiff
under the federal Constitution, the application for an injunction
is properly heard by the District Court of three judges. P.
287 U. S.
5. In such a case, the jurisdiction of the three-judge District
Court, and of this Court on appeal from a decree of injunction,
extends to every question involved, whether of state or of federal
law, and enables the court to rest its judgment on the decision of
such of the questions as, in its opinion, effectively dispose of
the case. P. 287 U. S.
6. Whether or not the constitution and laws of Texas purport to
authorize the acts of the Governor complained of in this case is
not decided. In disposing of the federal question, such authority
is assumed to have existed. P. 287 U. S.
7. The right of a lessee of oil land to extract oil pursuant to
his lease, subject to reasonable regulation by the state in the
exercise of its power to prevent unnecessary loss, destruction, and
waste, is protected by the due process clause of the Fourteenth
Amendment. P. 287 U. S.
8. The existence of facts justifying an exertion of military
power by the Governor of a state is subject to judicial inquiry
when there is a substantial showing that such exertion has
overridden private rights secured by the federal Constitution. P.
287 U. S.
9. The Governor of Texas proclaimed "martial law" over several
oil-producing counties of the state, declaring that insurrection
and riot beyond civil control existed there due to wasteful
production of oil by some of the operators in defiance of the state
conservation law, and to violent public feeling thereby excited.
After shutting down all of the wells by military force, he
permitted the state commission that administers the conservation
law to fix the limit of production, and production was resumed
accordingly; but when some of the operators, the plaintiffs in this
case, objecting to that limit as infringing their property rights
under the Fourteenth Amendment, obtained a restraining order in a
suit against the Commission in the federal court, he took military
control of all of the wells and restricted production still
(1) The question whether an exigency existed justifying such
interference with the plaintiffs' rights was not settled
exclusively by the Governor's acts and declarations, but was
subject to judicial inquiry and determination. Pp. 287 U. S.
(2) The facts of the situation (set forth in the opinion) show
no such exigency, and the interference as properly enjoined.
Page 287 U. S. 380
10. The fact that a violation of private rights by a state
Governor is attributable to a military order does not limit the
relief to proceedings calling him to account after the passing of
the alleged emergency on which he claims to have acted; an
injunction will be granted if essential for protection of the
injured party. P. 287 U. S.
11. The general language of an opinion must be taken in
connection with the point actually decided, referring to Moyer
v. Peabody, 212 U. S. 78
287 U. S.
12. Appeal from an order granting an interlocutory injunction
will be dismissed when there is also an appeal from a final decree
making the injunction permanent. P. 287 U. S.
No. 11 dismissed; No. 453 affirmed.
Appeals from an order of interlocutory injunction granted by a
three-judge District Court, restraining the Governor and certain
military officials of Texas from enforcing military orders
restricting the production of plaintiffs' oil wells, and from a
final decree of the same court making the injunction permanent. The
opinion of the court below is reported in 57 F.2d
Page 287 U. S. 386
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
The District Court, composed of three judges (U.S.C. Tit. 28, §
380) granted an interlocutory injunction restraining the
appellants, Ross S. Sterling, Governor of the State of Texas, W. W.
Sterling, Adjutant General of the State, and Jacob F. Wolters,
Brigadier General of the Texas National Guard, from enforcing their
military or executive orders regulating or restricting the
production of oil from complainants' wells and from interfering in
any manner "with the lawful production of oil from plaintiffs'
property." 57 F.2d
, 242. By stipulation, causes of action set forth in the
amended bill of complaint against these defendants and others were
severed, and the suit proceeded to trial upon the merits against
these defendants separately, and was submitted upon the pleadings
and the evidence taken on the application for the interlocutory
injunction. The court entered final judgment making the
interlocutory injunction permanent, and appeals have been taken to
this Court from both the interlocutory order and the final
judgment. As the case is now here on the latter appeal (No. 453),
the appeal from the interlocutory order (No. 11) will be dismissed.
Champlin Refining Co. v. Corporation Commission,
286 U. S. 210
286 U. S.
Page 287 U. S. 387
Complainants, as owners of interests in oil and gas leaseholds,
originally brought the suit, on October 13, 1931, against members
of the Railroad Commission of Texas, the Attorney General of the
State, Brigadier General Wolters, and others, to restrain the
enforcement of orders of the Commission limiting the production of
oil. These orders were alleged to be arbitrary and illegal, as
having been made in violation of the statutes of Texas and in
pursuance of a conspiracy in the interest of prices, and as
operating to deprive complainants of their property without due
process of law, contrary to both the state and the federal
Constitutions. The District Judge set the application for
preliminary injunction for hearing on October 28, 1931, before a
specially constituted court of three judges, and meanwhile made a
temporary order restraining the defendants from limiting
complainants' production below 5,000 barrels per well. 57 F.2d p.
229. The defendants, who were members of the Railroad Commission,
accordingly ceased their attempt to enforce the orders thus
Previously, on August 16, 1931, Governor Sterling had issued a
proclamation stating that certain counties (in which complainants'
properties were located) were in "a state of insurrection, tumult,
riot, and a breach of the peace," and declaring "martial law" in
that territory. The Governor directed Brigadier General Wolters to
assume supreme command of the situation and to take such steps as
he might deem necessary in order "to enforce and uphold the majesty
of the law," subject to the orders of the Governor as commanders in
chief, as given through the adjutant general. From that time,
General Wolters acted as "commanding officer of said military
When the District Court made its temporary restraining order in
this suit, as above stated, Governor Sterling, learning that the
orders made by the Railroad Commission
Page 287 U. S. 388
could no longer be enforced, issued his oral and written orders
to General Wolters to limit the production of oil in the described
military district to 165 barrels per well per day. This was the
limit fixed by the Commission's order of October 10th, the
enforcement of which was subject to the restraining order. On
October 28th, the Governor made the limit 150 barrels, and on
November 6th, 125 barrels. These orders were enforced by General
Wolters, and contempt proceedings were brought against him.
On November 20, 1931, by leave of the District Court,
complainants filed an amended bill making Governor Sterling and W.
W. Sterling, adjutant general, parties to the suit, and alleging
that the above-mentioned military and executive orders limiting
production were without justification in law or in fact, were
arbitrary and capricious, and were repugnant to the state and
federal Constitutions. Complainants alleged that there had been no
request by the civil authorities for the use of the military
forces; that all courts in said area were "open and transacting
their ordinary business;" that there were "no armed bodies of
civilians in said area," nor "any bodies of men threatening
bloodshed, violence or destruction," but that, on the contrary,
"the citizens in said community are in a quiet, peaceable condition
and amenable and obedient to any process which might be served upon
them." Defendants Governor Sterling, Adjutant General Sterling, and
General Wolters answered the bill, setting forth the executive
proclamation and orders and the declaration of martial law, and
asserting the validity of the acts assailed. By a supplemental
petition, in response to the answer, complainants denied that the
Governor, under the Constitution and statutes of the state, could
lawfully exercise the authority he had assumed, and specifically
alleged that, if any statute of the state conferred such authority,
it contravened stated pro
Page 287 U. S. 389
visions of the Constitution of the state and the due process and
equal protection clauses of the Fourteenth Amendment. At the time
of the hearing of the application for preliminary injunction, it
appeared that the executive orders had further limited the
complainants' production to 100 barrels per day. 57 F.2d page
Upon that application, the District Court received the evidence
submitted by both parties, and, considering it to be "without
substantial conflict," stated that it established the following
In August, 1931, the Legislature of Texas passed an amended oil
and conservation act. Chapter 26, Vernon's Ann.Civ. St. Texas,
Arts. 6008, 6014, 6029, 6032, 6049c. The Governor, in issuing his
proclamation of August 16th, recited the provisions of the
Constitution and statutes of Texas for the conservation of oil and
gas and the existence in the East Texas oil field, the territory in
question, of an organized group of oil and gas producers who were
said to be in a state of insurrection against the conservation
laws; that the civil officers did not have a sufficient force to
compel them to obey; that, by reason of their reckless production,
enormous physical waste was being created; that this condition had
brought about such a state of public feeling that, if the state
government could not protect the public's interest, they would take
the law into their own hands; that this condition had caused
threats of acts of violence; that it was necessary to give the
Railroad Commission time to have hearings and promulgate proper
orders to put the law into force; that a state of "insurrection,
tumult, riot, and breach of the peace existed in the defined area,"
and that there was "serious danger threatening to citizens and
property not only there, but in other oil producing areas of the
state," and that it was necessary "that the reckless and illegal
exploitation" should be stopped until such time as the said
resources might be property conserved and developed
Page 287 U. S. 390
under the protection of the civil authorities. The troops were
then called out, and the oil wells were shut down. In September,
after the Commission had made its order limiting production, while
the proclamation of martial law was not rescinded nor the troops
entirely withdrawn, the military occupation in force ended. The
wells were opened and continued to produce daily under the order of
the Railroad Commission. General Wolters, with the assistance of
the "Rangers," the civil officers of the community, and "the few
military still remaining in the field," and in aid of the
Commission, patrolled the territory to see that its orders were
complied with; that, from time to time, the Commission, sometimes
with the approval, and sometimes with the disapproval, of the
Governor, made its orders further limiting production, and these
orders were obeyed.
The District Court also found that, after the restraining order
against the Commission had been issued in this suit, the defendants
Governor Sterling and General Wolters "determined not to brook
court interference with the program of restricted production which
they determined to continue." Acting
"in the real, though mistaken, belief that the federal court,
while competent as to the Commission, was, during the continuance
of the proclaimed state of war, without jurisdiction over their
by virtue of the claim, which the District Court found to be
wholly without support in the evidence, "that war conditions were
prevailing in the field, and that military necessity required the
"ousted the Commission from the fixing of and superintendence
over the daily production allowed, and have since controlled
production by purported military orders."
As to the actual conditions in the area affected by these
orders, the District Court made for following finding:
"It was conceded that at no time has there been any actual
uprising in the territory. At no time has any military
Page 287 U. S. 391
force been exerted to put riots or mobs down. At no time, except
in the refusal of defendant Wolters to observe the injunction in
this case, have the civil authorities or courts been interfered
with, or their processes made impotent. Though it was testified to
by defendants that, from reports which came to them, they believed
that, if plaintiffs' wells were not shut in, there would be
dynamiting of property in the oil fields, and efforts to close them
and any others which opened by violence, and that, if that
occurred, there would be general trouble in the field, no evidence
of any dynamite having been used, or show of violence practiced or
actually attempted, or even threatened against any specific
property in the field, was offered. We find, therefore, that not
only was there never any actual riot, tumult, or insurrection which
would create a state of war existing in the field, but that, if all
of the conditions had come to pass, they would have resulted merely
in breaches of the peace, to be suppressed by the militia as a
civil force, and not at all in a condition constituting, or even
remotely resembling, a state of war."
57 F.2d p. 231.
Referring to the testimony of Governor Sterling and General
Wolters that the orders had not been issued for the purpose of
affecting prices, nor even per se
to limit production, but
"as acts of military necessity to suppress actual threatened war,"
as they believed from reports brought to them that, "unless they
kept the production of oil down to within 400,000 barrels, a
war-like riot or insurrection, in effect a state of war, would
ensue," the District Court said:
"We find no warrant in the evidence for such belief. Looking at
it in the light most favorable to defendants' contention, it
presents nothing more than threats of violence or breaches of the
peace. The testimony showed that martial law had not ousted the
Commission from making and enforcing rules regulating conservation,
Page 287 U. S. 392
alone as to production from the field. One of their witnesses
testified: 'Now the Governor with his military representatives has
taken over the proration end but the conservation end is still with
the Commission.' The evidence shows no insurrection nor riot in
fact existing at any time in the territory, no closure of the
courts, no failure of civil authorities. It shows that at no time
has there been in fact any condition resembling a state of war, and
that, unless the Governor may be proclamation create an
irrebuttable presumption that a state of war exists, the actions of
the Governor and his staff may not be justified on the ground of
57 F.2d 231.
Having thus found the facts, the District Court, maintaining its
jurisdiction, examined the provisions of the Constitution and
statutes of the state to ascertain whether they had conferred upon
the Governor the power he had assumed to exercise. The court
concluded that not only was no such affirmative authority
conferred, but that express provisions of the Constitution withheld
such power; that, when the Governor calls out the troops of Texas,
it is not as a military, but as a civil, officer; that their powers
and duties are derived from the civil law, and that at no time and
under no conditions are their actions above court review. The court
held that, under the Constitution of Texas, courts may not be
closed or their processes interfered with by military orders, that
courts cannot be ousted by the agencies detailed to aid them, and
that their functions cannot be transferred to tribunals unknown to
the Constitution. In this view, the court decided that appellants,
"without warrant of law," had been depriving complainants of their
undoubted right to operate their own properties in a prudent and
reasonable way, in accordance with the laws of the state. 57 F.2d
pp. 236-241. The final judgment, entered pursuant to the
stipulation of the parties and upon the same record, rests upon the
same findings and conclusions.
Page 287 U. S. 393
Appellants contend (1) that the Governor has power to declare
martial law; (2) that courts may not review the sufficiency of
facts upon which martial law is declared; (3) that courts may not
control by injunction the means of enforcing martial law, and (4)
that the finding of the Governor of necessity to take property is
due process of law.
The District Court had jurisdiction. The suit is
not against the state. The applicable principle is that, where
state officials, purporting to act under state authority, invade
rights secured by the federal Constitution, they are subject to the
process of the federal courts in order that the persons injured may
have appropriate relief. Ex parte Young, 209 U.
, 209 U. S.
-156; Home Telephone & Telegraph Co. v. Los
Angeles, 227 U. S. 278
227 U. S.
-293; Truax v. Raich, 239 U. S.
, 239 U. S. 37
Cavanaugh v. Looney, 248 U. S. 453
248 U. S. 456
Terrace v. Thompson, 263 U. S. 197
263 U. S. 214
The Governor of the state, in this respect, is in no different
position from that of other state officials. See Davis v.
16 Wall. 203, 83 U. S. 210
83 U. S. 233
Continental Banking Co. v. Woodring, 286 U.
; Binford v. McLeaish, 284 U.
; 52 F.2d
, 152; Sproles v. Binford, 286 U.
. Nor does the fact that it may appear that the
state officer in such a case, while acting under color of state
law, has exceeded the authority conferred by the state, deprive the
court of jurisdiction. Iowa-Des Moines Bank v. Bennett,
284 U. S. 239
284 U. S. 246
Fidelity & Deposit Co. v. Tafoya, 270 U.
, 270 U. S.
As the validity of provisions of the state constitution and
statutes, if they could be deemed to authorize the action of the
Governor, was challenged, the application for injunction was
properly heard by three judges. Stratton v. St. Louis
Southwestern Ry. Co., 282 U. S. 10
jurisdiction of the District Court so constituted, and of this
Court upon appeal, extends to every question involved, whether of
state or federal law, and enables the
Page 287 U. S. 394
court to rest its judgment on the decision of such of the
questions as in its opinion effectively dispose of the case.
Siler v. Louisville & Nashville R. Co., 213 U.
, 213 U. S. 191
Louisville & Nashville R. Co. v. Garrett, 231 U.
, 231 U. S. 303
Davis v. Wallace, 257 U. S. 478
257 U. S. 482
Waggoner Estate v. Wichita County, 273 U.
, 273 U. S.
Appellants rely upon Article IV, §§ 1, 7, and
10 of the state constitution, and Articles 5778, 5830, 5834, and
5889 of the Revised Civil Statutes of the state, 1925. The
provisions of the state constitution make the Governor the chief
executive officer of the state and commander in chief of its
military forces, with "power to call forth the militia to execute
the laws of the state, to suppress insurrection, repel invasion,
and protect the frontier." The Governor "shall cause the laws to be
faithfully executed." The statutes cited are set forth in the
margin. [Footnote 1
Page 287 U. S. 395
In support of the conclusion of the court below that the
Governor did not have authority as extensive as that asserted in
this case, appellees invoke the provisions of the Bill of Rights
(Article I) of the state constitution as follows:
"Sec. 12. The writ of habeas corpus is a writ of right, and
shall never be suspended."
"* * * *"
"Sec. 24. The military shall at all times be subordinate to the
"* * * *"
"Sec. 28. No power of suspending laws in this state shall be
exercised except by the legislature."
"Sec. 29. To guard against transgressions of the high powers
herein delegated, we declare that everything in this 'Bill of
Rights' is excepted out of the general powers of government, and
shall forever remain inviolate, and all laws contrary thereto, or
to the following provisions, shall be void."
Appellees contend that the subsequent articles of the
Constitution are to be construed in harmony with these provisions
of the Bill of Rights, and that these show clearly that it was not
the intention of the people of Texas to confer upon the Governor
the authority to declare martial law, but only to suppress
insurrections, to repel invasions, and to afford the protection
necessary to preserve the peace, acting in aid, and not in
subversion, of the civil authority and of the jurisdiction of the
courts. These provisions, said the District Court,
"were written into the fundamental law as direct inhibitions
upon the executive, by men who had suffered under the imposition of
martial law, with its suspension of civil authority, and the
ousting of the courts during reconstruction in Texas."
"In every convention," said the court,
"in every gathering assembled, protesting the suppression of
free speech, the interference with the processes, the judgments,
the decrees of courts, these men had denounced martial tyranny, and
sought relief against it, and, when they met
Page 287 U. S. 396
to adopt the Constitution of 1876, which still obtains, they
determined to, and they did, so write the fundamental law that such
deprivations of liberty might never again occur."
57 F.2d p. 237.
While we recognize the force of these observations, and the
question of the interpretation of the provisions of the state
constitution is before us, it is still a matter of local law, as to
which the courts of the state would, in any event, have the final
word. We do not find it necessary to determine that question, and
we shall not attempt to explore the history of Texas or to review
the decisions of the state courts cited by the appellees. [Footnote 2
] We pass to the
consideration of the federal question presented, and for that
purpose we shall assume, without deciding, that the law of the
state authorizes what the Governor has done.
The existence and nature of the complainants'
rights are not open to question. Their ownership of the oil
properties is undisputed. Their right to the enjoyment and use of
these properties, subject to reasonable regulation by the state in
the exercise of its power to prevent unnecessary loss, destruction,
and waste, is protected by the due process clause of the Fourteenth
Amendment. Ohio Oil Co. v. Indiana, 177 U.
; Lindsley v. Natural Carbonic Gas Co.,
220 U. S. 61
Page 287 U. S. 397
Carbon Co., 254 U. S. 300
Bandini Petroleum Co. v. Superior Court, 284 U. S.
; Champlin Refining Co. v. Corporation
Commission, 286 U. S. 210
state, in this instance, had asserted its regulatory authority by
enacting laws for the prevention of waste, and had empowered the
Railroad Commission to investigate and to establish rules to this
end. The Commission then made its orders governing and limiting oil
production. The complainants brought suit in the federal court to
restrain the enforcement of these orders upon the ground that they
were unauthorized, arbitrary, and capricious, and violated the
federal right to the enjoyment and use of the properties.
Exercising the jurisdiction conferred by federal statute, a federal
judge had granted a temporary restraining order, pending the
convening of the court which by that statute was charged with the
duty to determine whether the requirement of the Commission was
valid or its enforcement should be enjoined. While this orderly
process was going forward, it was superseded and, in effect,
nullified by the Governor of the state, who undertook by military
order to effect the limitation which the Commission by that process
was for the time being forbidden to maintain. And, when the federal
court, finding his action to have been unjustified by any existing
exigency, has given the relief appropriate in the absence of other
adequate remedy, appellants assert that the court was powerless
thus to intervene, and that the Governor's order had the quality of
a supreme and unchallengeable edict, overriding all conflicting
rights of property and unreviewable through the judicial power of
the federal government.
If this extreme position could 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 the restrictions of the federal Constitution upon the
exercise of state power would
Page 287 U. S. 398
be but impotent phrases, the futility of which the state may at
any time disclose by the simple process of transferring powers of
legislation to the Governor to be exercised by him, beyond control,
upon his assertion of necessity. Under our system of government,
such a conclusion is obviously untenable. There is no such avenue
of escape from the paramount authority of the federal Constitution.
When there is a substantial showing that the exertion of state
power has overridden private rights secured by that Constitution,
the subject is necessarily one for judicial inquiry in an
appropriate proceeding directed against the individuals charged
with the transgression. To such a case the federal judicial power
extends (Article III, § 2), and, so extending, the Court has all
the authority appropriate to its exercise. Accordingly, it has been
decided in a great variety of circumstances that, when questions of
law and fact are so intermingled as to make it necessary, in order
to pass upon the federal question, the Court may, and should,
analyze the facts. Even when the case comes to this Court from a
state court, this duty must be performed as a necessary incident to
a decision upon the claim of denial of federal right. Kansas
City Southern Ry. Co. v. Albers Commission Co., 223 U.
, 223 U. S. 591
Creswill v. Knights of Pythias, 225 U.
, 225 U. S. 261
Northern Pacific Ry. Co. v. North Dakota, 236 U.
, 236 U. S. 593
Union Pacific R. Co. v. Public Service Comm'n,
248 U. S. 67
248 U. S. 69
Merchants' National Bank v. Richmond, 256 U.
, 256 U. S. 638
First National Bank v. Hartford, 273 U.
, 273 U. S.
-553; Fiske v. Kansas, 274 U.
, 274 U. S.
The application of these principles does not
fail to take into account the distinctive authority of the state.
In the performance of its essential function, in promoting the
security and wellbeing of its people, the state must of necessity
enjoy a broad discretion. The range of that discretion accords with
the subject of its exercise. Jacobson v. Massachusetts,
197 U. S. 11
197 U. S.
Page 287 U. S. 399
Standard Oil Co. v. Marysville, 279 U.
, 279 U. S. 584
Ohio Oil Co. v. Conway, 281 U. S. 146
281 U. S. 159
As the state has no more important interest than the maintenance of
law and order, the power it confers upon its Governor, as chief
executive and Commander in chief of its military forces, to
suppress insurrection and to preserve the peace is of the highest
consequence. The determinations that the Governor makes within the
range of that authority have all the weight which can be attributed
to state action, and they must be viewed in the light of the object
to which they may properly be addressed, and with full recognition
of its importance. It is with appreciation of the gravity of such
an issue that the governing principles have been declared.
By virtue of his duty to "cause the laws to be faithfully
executed," the executive is appropriately vested with the
discretion to determine whether an exigency requiring military aid
for that purpose has arisen. His decision to that effect is
conclusive. That construction, this Court has said, in speaking of
the power constitutionally conferred by the Congress upon the
President to call the militia into actual service, "necessarily
results from the nature of the power itself, and from the manifest
object contemplated." The power "is to be exercised upon sudden
emergencies, upon great occasions of state, and under circumstances
which may be vital to the existence of the Union." Martin v.
12 Wheat.19, 25 U. S. 29
Similar effect, for corresponding reasons, is ascribed to the
exercise by the Governor of a state of his discretion in calling
out its military forces to suppress insurrection and disorder.
7 How. 1, 48 U. S. 45
Moyer v. Peabody, 212 U. S. 78
212 U. S. 83
The nature of the power also necessarily implies that there is a
permitted range of honest judgment as to the measures to be taken
in meeting force with force, in suppressing violence and restoring
order, for, without such liberty to
Page 287 U. S. 400
make immediate decisions, the power itself would be useless.
Such measures, conceived in good faith, in the face of the
emergency, and directly related to the quelling of the disorder or
the prevention of its continuance, fall within the discretion of
the executive in the exercise of his authority to maintain peace.
Thus, in Moyer v. Peabody, supra,
the Court sustained the
authority of the Governor to hold in custody temporarily one whom
he believed to be engaged in fomenting disorder, and right of
recovery against the Governor for the imprisonment was denied. The
Court said that, as the Governor "may kill persons who resist,"
"may use the milder measure of seizing the bodies of those whom
he considers to stand in the way of restoring peace. Such arrests
are not necessarily for punishment, but are by way of precaution to
prevent the exercise of hostile power. So long as such arrests are
made in good faith and in the honest belief that they are needed in
order to head the insurrection off, the Governor is the final
judge, and cannot be subjected to an action after he is out of
office on the ground that he had not reasonable ground for his
In that case, it appeared that the action of the Governor had
direct relation to the subduing of the insurrection by the
temporary detention of one believed to be a participant, and the
general language of the opinion must be taken in connection with
the point actually decided. Cohens v.
6 Wheat. 264, 19 U. S. 399
16 How. 275, 57 U. S. 287
Myers v. United States, 272 U. S. 52
272 U. S.
It does not follow from the fact that the executive has this
range of discretion, deemed to be a necessary incident of his power
to suppress disorder, that every sort of 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
Page 287 U. S. 401
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. Thus, in the theater of
actual war, there are occasions in which private property may be
taken or destroyed to prevent it from falling into the hands of the
enemy or may be impressed into the public service, and the officer
may show the necessity in defending an action for trespass. "But we
are clearly of opinion," said the Court, speaking through Chief
"that, in all of these cases, the danger must be immediate and
impending; or the necessity urgent for the public service, such as
will not admit of delay, and where the action of the civil
authority would be too late in providing the means which the
occasion calls for. . . . Every case must depend on its own
circumstances. It is the emergency that gives the right, and the
emergency must be shown to exist before the taking can be
13 How. 115, 54 U. S. 134
See also United States v.
13 Wall. 623, 80 U. S. 628
There is no ground for the conclusion that military orders in the
case of insurrection have any higher sanction or confer any greater
We need not undertake to determine the intended significance of
the expression "martial law," and all its possible connotations, as
it was employed in the Governor's proclamation. Nor are we
concerned with the permissible scope of determinations of military
necessity in all their conceivable applications to actual or
threatened disorder and breaches of the peace. Fundamentally, the
question here is not of the power of the Governor to proclaim that
a state of insurrection, or tumult, or riot, or breach of the peace
exists, and that it is necessary to call military force to the aid
of the civil power. Nor does the question relate to the quelling of
disturbances and the overcoming of unlawful resistance to civil
authority. The question before us is simply with respect to the
Page 287 U. S. 402
attempt to regulate by executive order the lawful use of
complainants' properties in the production of oil. 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. In
particular, to the process of the federal court actually and
properly engaged in examining and protecting an asserted federal
right, the Governor interposed the obstruction of his will,
subverting the federal authority. The assertion that such action
can be taken as conclusive proof of its own necessity, and must be
accepted as, in itself, due process of law has no support in the
decisions of this Court.
Appellants' contentions find their appropriate answer in what
was said by this Court in Ex Parte
4 Wall. 2, 71 U. S. 124
statement as applicable to the military authority of the state in
the case of insurrection as to the military authority of the nation
in time of war:
"The proposition is this: that, in a time of war, the commander
of an armed force (if, in his opinion, the exigencies of the
country demand it, and of which he is to judge), has the power,
within the lines of his military district, to suspend all civil
rights and their remedies, and subject citizens as well as soldiers
to the rule of his will, and in the exercise of his lawful
authority cannot be restrained, except by his superior officer or
the President of the United States. If this position is sound to
the extent claimed, then when war exists, foreign or domestic, and
the country is subdivided into military departments for mere
convenience, the commander of one of them can, if he chooses,
within the limits, on the plea of necessity, with the approval of
the Executive, substitute military force for and the exclusion of
the laws, and punish all persons, as he thinks right and
Page 287 U. S. 403
proper, without fixed or certain rules. The statement of this
proposition shows its importance, for, if true, republican
government is a failure, and there is an end of liberty regulated
by law. Martial law, established on such a basis, destroys every
guaranty of the Constitution, and effectually renders the 'military
independent of and superior to the civil power.' . . . Civil
liberty and this kind of martial law cannot endure together; the
antagonism is irreconcilable and, in the conflict, one or the other
The argument of appellants intimates, while it
reserves the question, that it may be possible for the courts to
call upon the Governor, after the alleged emergency has passed, to
account for what he has done, but that they may not entertain a
proceeding for injunction. The suggestion confuses the question of
judicial power with that of judicial remedy. m If the matter is one
of judicial cognizance, it is because of an alleged invasion of a
right, and the judicial power necessarily extends to the granting
of the relief found to be appropriate according to the
circumstances of the case. Whether or not the injured party is
entitled to an injunction will depend upon equitable principles;
upon the nature of the right invaded and the adequacy of the remedy
at law. If the court finds that the limits of executive authority
have been transgressed, and that, in view of the character of the
injury, equitable relief by injunction is essential in order to
afford the protection to which the injured party is entitled, it
cannot be said that the judicial power is fettered because the
injury is attributable to a military order.
In the present case, the findings of fact made by the District
Court are fully supported by the evidence. They leave no room for
doubt that there was no military necessity which, from any point of
view, could be taken to justify the action of the Governor in
attempting to limit
Page 287 U. S. 404
complainants' oil production, otherwise lawful. Complainants had
a constitutional right to resort to the federal court to have the
validity of the Commission's orders judicially determined. There
was no exigency which justified the Governor in attempting to
enforce by executive or military order the restriction which the
District Judge had restrained pending proper judicial inquiry. If
it be assumed that the Governor was entitled to declare a state of
insurrection and to bring military force to the aid of civil
authority, the proper use of that 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. It is also plain that there was no adequate
remedy at law for the redress of the injury, and, as the evidence
showed that the Governor's orders were an invasion under color of
state law of rights secured by the federal Constitution, the
District Court did not err in granting the injunction.
The judgment of the District Court is affirmed.
No. 11, appeal dismissed.
No. 453, judgment affirmed.
Revised Civil Statutes of Texas, 1925:
"Art. 5778. The Governor shall have power in the case of
insurrection, invasion, tumult, riot or breach of peace, or
imminent danger thereof, to order into the active service of this
state any part of the militia that he may deem proper."
"* * * *"
"Art. 5830. When an invasion of, or an insurrection in, this
state is made or threatened, or when the Governor may deem it
necessary for the enforcement of the laws of this state, he shall
call forth the active militia or any part thereof to repel,
suppress, or enforce the same, and if the number available is
insufficient he shall order out such part of the reserve militia as
he may deem necessary."
"* * * *"
"Art. 5834. The Governor may order the active militia, or any
part thereof, to assist the civil authorities in guarding
prisoners, or in conveying prisoners from and to any point in this
state, or discharging other duties in connection with the execution
of the law as the public interest or safety at any time may
"* * * *"
"Art. 5889. Whenever any portion of the military forces of this
state is employed in aid of the civil authority, the Governor, if
in his judgment the maintenance of law and order will thereby be
promoted, may, by proclamation, declare the county or city in which
the troops are serving, or any special portion thereof, to be in a
state of insurrection."
Ex parte Coupland,
26 Tex. 387; Ex parte
26 Tex. 708; Ex parte Mayer,
27 Tex. 716;
State v. Sparks & Magruder,
27 Tex. 627, 27 Tex. 705;
The Emancipation Proclamation Cases,
31 Tex. 504;
Arroyo v. State,
69 S.W. 503, 504. See also Franks v.
142 Ky. 232, 134 S.W. 484; Fluke v. Canton,
Okl. 718, 123 P. 1049; Bishop v. Vandercook,
299, 200 N.W. 278; In re McDonald,
49 Mont. 454, 143 P.
9476; Herlihy v. Donohue,
52 Mont. 601, 161 P. 164;
Allen v. Gardner,
182 N.C. 425, 109 S.E. 260. Compare
State ex rel. Mays v. Brown,
71 W.Va. 519, 77 S.E. 243; In
71 W.Va. 567, 77 S.E. 1029; Hatfield v.
73 W.Va. 759, 81 S.E. 533; Ex parte Lavinder,
88 W.Va. 713, 108 S.E. 428; In re Moyer,
35 Colo. 159, 85
P. 190; In re Boyle,
6 Idaho, 609, 57 P. 706;
Commonwealth ex rel. Wadsworth v. Shortall,
206 Pa. 165,
55 A. 952.