I cannot agree with the views expressed by my associates in the majority opinion. This case involves the distribution of several hundred thousand dollars representing accrued and accruing royalties on state-owned lands to private individuals, and is, therefore, a public question and I feel that I should set forth my views.
The record discloses that the State Board of Public Affairs determined, as it had a right to do, to sell an oil and gas lease upon the state-owned Parkway lands south of the Capitol Building. *Page 641 Except for an intervening street or boulevard this land is contiguous to blocks 10, 11, 18 and 19, Lincoln Terrace addition to Oklahoma City, Okla. Notice was published as required by law advising the public that the State Board of Public Affairs would accept bids up to 10 a. m., on January 15, 1937, for an oil and gas lease on said specifically described tract of land. The Board of Public Affairs did accept bids for said lease as set forth by the notice and determined on said date that Harper and Turner, a copartnership, was the highest and best bidder; it bid one-fourth royalty and a cash bonus of $301,004; said bonus was paid and appropriated by the state, and there is no question herein as to the proper distribution of said cash bonus.
Senate Bill No. 49, the same being article 6, ch. 20 of the 1937 Session Laws, was being considered on said date by the Legislature. It was finally passed by the Legislature on January 20, 1937, and sent to the Governor, who approved same January 22, 1937. It provided for notice as prescribed in article 4, ch. 20 of the Session Laws of 1935. The lease to Harper and Turner was executed by the Board of Public Affairs on February 3, 1937. On February 20, 1937, a letter was written by the Board of Public Affairs, in response to a letter from certain property owners in the designated blocks of Lincoln Terrace requesting the Board of Public Affairs to consolidate their lots with the Parkway lease or tract, to such property owners, the Sunray Oil Company and owners of the Parkway lease. It is contended that this letter is the consolidating factor in this case. No doubt, in contemplation of the final passage and approval of the 1937 act, notice was given of the contemplated sale of the oil and gas lease in question on state-owned lands. Nobody now seriously contends, nor does the majority opinion as supplemented hold, that the 1937 act became effective at the date of its approval by the Governor, January 22, 1937, although an emergency clause was attached thereto. The majority opinion, in fact, correctly concedes that the effective date of the 1937 act, because of the constitutional inhibition contained in section 58, art. 5, was delayed until August 10, 1937, inasmuch as the 1937 act created an encumbrance on state-owned lands and would not therefore become effective until 90 days after adjournment of the Legislature that passed it. Since the 1937 act was not effective on either January 15, 22, or February 3, 1937 (the date of execution of lease) said lease could not have been and was not sold under and by virtue of the terms and authority of the 1937 act. Contrary to the intention and anticipation of the Board of Public Affairs, said property owners and the purchaser of said oil and gas lease, the sale was made, if at all, under the authority of the 1935 act. The 1935 act empowered the Board of Public Affairs to selloil and gas leases on state-owned lands, but made no provision for consolidation thereof with any other lease or tract. Excepting the repealing, emergency and approving clauses thereof, it is as follows:
"The State Board of Public Affairs is hereby authorized and empowered to sell and execute oil and gas or mineral leases, or such State Board of Public Affairs may enter into drilling contracts with persons or corporations for the drilling of oil and gas wells on any such property owned by the state, upon the basis of the retention of at least one-eighth (1/8), plus cash bonus, of the royalty in such leases. Such Board shall advertise any such lease or leases or drilling contracts for sale for a period of at least twenty-one (21) days in a legal newspaper published and of general circulation in the county where said lands are located and shall award the same to the highest and best bidder; providing that all bidding shall be under sealed bids. The Board of Public Affairs is authorized to promulgate such additional rules and regulations as may be deemed necessary. All monies derived from the sale of such leases and royalties, or accruing from any other contract so made, shall be converted into the General Revenue Fund of the State."
All the parties to this action, to wit, the State of Oklahoma, the lessee, and the property owners of Lincoln Terrace *Page 642 contend for and assert the validity of the lease. It was advertised, bids accepted, and lease executed by the Board of Public Affairs as prescribed by the 1935 act; therefore, on and after February 3, 1937, it constituted a valid and subsisting oil and gas lease on the Parkway lands owned by the State of Oklahoma. The notice of sale provided that: "The tract herein being advertised as hereinafter described shall be let on a bid form and leased on a form of lease now on file with the Secretary of the State Board of Public Affairs. . . ." This lease form, which was the one thereafter executed, contains the following language with reference to consolidation:
"Lessor agrees that this lease and the land covered thereby may be consolidated, jointly operated and developed with any other adjacent lease or leases covering any tract, or with any other lands if required by the lessor and upon such terms asmay be required by the lessor (and may be so consolidated, jointly operated and developed by lessee if permitted bylessor), such development and operation to be the same as if lessor and the owners of said other leases or tracts of land had entered into a joint lease covering the lands so consolidated in the first instance."
Casual reading of this language shows that this is a reservation to the state of the right thereafter to consolidate said lease with pre-existing leases on other lands if it thereafter saw fit and determined to do so according to proper legislative authority.
Note this reservation is entirely in favor of the state, and, of course, put in the lease for the purpose of notifying the purchaser that a consolidation may thereafter be determined and effected by the state so that if this were done the lessee could not complain thereof. The state reserved the right thereafter to effect a consolidation, and the lessee, if such were done, could not complain so long as the consolidation was accomplished according to the terms of the reservation and did not prejudice the lessee by an increase of its duty under the lease which it purchased. It was the duty of the lessee to drill, and is still the duty of the lessee to operate this lease in the manner prescribed by the lease, and the alleged consolidation has in nowise changed the terms of the lease or placed a greater duty upon the lessee. The lessee pays no more royalty and is obliged to drill no more wells or to operate the lease in a different manner than if consolidation had never been attempted. Insofar as the State of Oklahoma is concerned, the lessee still enjoys all the rights and privileges and is subject to no greater duty than that provided by the lease before consolidation was ever attempted. By no stretch of the imagination can it be said that this provision of the lease amounts to consolidation.
It is, therefore, apparent that this controversy is entirely between the State of Oklahoma and certain property owners of Lincoln Terrace. The unauthorized action of the Board of Public Affairs, in its futile attempt to consolidate the lease on state-owned property, has no effect upon the validity of the lease that had already been bought and paid for by the lessec. The state's present action does not contest the validity of the lease, and, therefore, the state has no controversy with the lessec. The lessee is in no position then to complain that the state has not elected to declare the whole deal off. The state admits and asserts the validity of the lease, but contests the right or authority of the Board of Public Affairs to make a private deal thereafter consolidating said lease with privately owned property. Estoppel will not lie against the sovereign state regarding the authority of its officers, nor, under these circumstances, can the lessee force the state to elect what course of action it shall pursue against individuals with whom it made a purported, private agreement. If the State of Oklahoma were insisting on an arrangement with third parties, the enforcement of which would increase the duty of the lessee or materially vary its responsibility, then the theory of election of remedies might apply. That is not the case, however, here.
The terms and conditions of the lease were definitely fixed therein and the obligations, rights and privileges of the *Page 643 State of Oklahoma, as lessor, and Harper and Turner, a copartnership, as lessee, were definite. By the terms of said lease the State of Oklahoma should and did receive the cash bonus bid and was thereafter entitled to one-fourth of all the oil and gas produced by the development and operation of said lease.
The entire transaction between the State of Oklahoma, theowner and lessor, and Harper and Turner, the lessee, was fully consummated on February 3, 1937. Any deal thereafter to be consummated between the State of Oklahoma and any outsiders to this lease agreement would have to be under and by virtue of specific statutory authority. Lingo-Leeper Lumber Co. v. Carter, 161 Okla. 5, 17 P.2d 365; 59 Corpus Juris, 171, 173.
The deal or consolidation that the property owners contend was effected between the State of Oklahoma and them, if consummated at all, is embodied in a letter written by the Board of Public Affairs, dated February 20, 1937. This conclusion is inescapable; in fact, conceded by all the parties. The pertinent part thereof is: "We hereby agree that leases upon lots in said blocks may be consolidated with the State Parkway lease, upon the following terms: . . ." As between the lot owners and the state nothing transpired thereafter relative to consolidation.
Leases were obtained by the Sunray Oil Company from 31 of the 37 lot owners in said blocks with a provision therein for the consolidation thereof with the state-owned Parkway tract, together with the provision for the division of the royalties that would accrue from such tract. The Board of Public Affairs took no action (formal or otherwise) thereafter and did nothing to effectuate the consolidation as contemplated in its letter of February 3, 1937. Apparently the reason nothing further was done to complete such an important transaction was the fact that the Attorney General was finally asked for advice and advised the State Board of Public Affairs that such a deal would be illegal for the reason that there was no authority of law therefor.
"Public officials have and can exercise only such powers as are conferred on them by law, and the state is not bound by contracts made in its behalf by its officers or agents without previous authority conferred by statute or Constitution."
Lingo-Leeper Lumber Co. v. Carter, supra, pronounces this well-settled and universally followed rule as to authority of public officials in this state. So, therefore, it being conceded that the 1937 act did not become effective until August 10, 1937, the authority to consummate said transaction, if such authority existed, must be found in the 1935 act. As pointed out above, there is not a word in the 1935 act specifically concerning consolidation or communization. The majority opinion holds that by reason of the provision of the 1935 act, "the Board of Public Affairs is authorized to promulgate additional rules and regulations as may be deemed necessary," gave the Board of Public Affairs the authority to consolidate. If this contention is incorrect, then, as conceded by all, there would be no authority vested in the Board of Public Affairs to effect the consolidation attempted. So we come to a consideration of this provision quoted above. This sentence is a part of the paragraph of section 1 of said act and immediately succeeds the sentence prescribing the amount of royalty that must be received, the character of notice that must be given, and how it shall be advertised, that the award shall be made to the highest and best bidder, and that the bids shall be sealed. This power to make additional rules and regulations refers to such incidental things as it might deem necessary. This shows conclusively that this power to make rules and regulations means only such rules and regulations as may be deemed necessary by the Board to effectuate the sale of the oil and gas lease. (Note the sale had been made many days prior to the date the letter was written.) Certainly the Legislature never intended that the proceeds of an oil and gas lease sold according to such specific instructions could thereafter be sold or traded to a private individual by a private contract without advertisement, without *Page 644 receiving sealed bids and without making the trade or sale to the highest bidder. This is exactly what the Legislature intended to prevent by prescribing the minimum requirements set out in the 1935 act. The Board of Public Affairs could, however, by reason of this rule making power, determine other requirements to be met by the purchaser. This provision does not authorize the making of rules and regulations that would amount to legislation, that is, authorize the Board of Public Affairs to do more than sell oil and gas leases. The Legislature could not authorize an administrative board, such as the Board of Public Affairs, to legislate. The 1937 Legislature evidently was cognizant of this situation. It knew there was no authority to consolidate by private arrangement, and it knew, as we know, that it was not the intention of the 1935 Legislature to provide, even by implication, for a consolidation after the sale of an oil and gas lease on state-owned land with privately owned property, thereby giving up a large portion of a vast sum of money accruing to the state by reason of production of oil and gas on its land. However, it determined that the additional power to consolidate should be granted to the Board of Public Affairs, and knowing that the power did not theretofore exist, it passed the 1937 act. This act applies to only one tract of state-owned land, the Parkway, and the only additional authority provided therein was the power to consolidate a lease thereon with other leases. It would be foolish for the Legislature to pass an entire act to provide authority that it knew theretofore existed. Recognizing the absolute nonexistence of such power it enacted the 1937 act, which did not become operative until August 10, 1937. The attempted consolidation by the Board of Public Affairs on February 20, 1937, was without authority of law and therefore a nullity.
However, this may be, the 1936 act amending the 1935 act, which became effective January 6, 1937, repealed by implication the so-called "rule-making" power of the Board of Public Affairs provided in the 1935 act. So, when the letter, allegedly exercising this rule-making power, was written February 20, 1937, the so-called "rule-making" power did not exist.
There are other reasons why the attempted consolidation in this case was not effective. The state contends there was no legal consideration sufficient to support the transaction even if there were authority in law therefor, and the authority were exercised in conformity with the prescribed method of procedure. In determining whether there is sufficient legal consideration to support a contract you must consider carefully the status or representative capacity of the parties thereto and the value of the thing given up as compared to the severity of the detriment suffered.
We know from the record in this case that the assigned portion of the royalty accrued to date is in excess of $350,000; that on the basis of the monthly accrual thereof, it can be reasonably anticipated that it will ultimately approximate in excess of one-half million dollars.
This lease was considered by the purchasers so valuable that the consideration paid therefor was a cash bonus of $301,004, or about $30,000 per acre, in addition to a one-fourth royalty instead of the usual one-eighth royalty.
The conclusion is inescapable that the interest assigned had a known value of at least one-half million dollars at the time the deal was made with the lot owners.
The lot owners claim that they gave up their right to sue for damages except for negligence; that their land would be drained; that the inclusion of their lots in the leased area would increase the drainage area of the wells on the state land; that they gave up their right to sue to enjoin operations; that they gave up their right to drill.
The contention that the lot owners gave up their right to sue for damages except for negligence is untenable. Same *Page 645 constitutes no legal consideration for the obvious reason that the sovereign state could not be sued for such damages. They, therefore, gave up no right to sue the state and no consideration flowed to the state in this respect; if their deal with the state should fall, there would then be no consideration whatsoever to support their leases to the oil company for said leases provided for a division of the royalties that would accrue on the Parkway owned by the state; they would then have their original right to sue the developing company for damages other than for negligence.
We are thoroughly committed to the rule of capture as applied to oil and gas. There is no ownership in oil and gas uncaptured and in place. Everybody ordinarily has the right to explore on their own land and reduce oil and gas to possession. Until this is done there is no ownership therein. The State of Oklahoma, therefore, is not draining the oil and gas that belongs to, or that the owners in Lincoln Terrace have a property interest in. Once oil and gas from wells on state-owned land is reduced to possession, under a valid oil and gas lease, as the one herein considered, the royalty accruing therefrom belongs to the State of Oklahoma and the individual owners of Lincoln Terrace have no property rights therein unless they have a valid enforceable contract that gives them an ownership interest in said oil and gas after it is captured and reduced to possession.
So their contention that their land would be drained is likewise untenable. As pointed out above, we adhere to the rule of capture and the developing company would not even be liable for drainage by reason of production of oil from state-owned land under a valid lease in the absence of negligence or contractual relationship with the lot owners. In any event the state would not be liable for damages in connection with the drainage.
Their contention, that their giving up their right to sue to enjoin operations is a supporting consideration, is unsound for the reason that the state is immune from such suit; it had the right to drill on said tract and produce oil and gas therefrom; it could do through its lessee that which it itself could do and as long as the lessee had a valid binding agreement authorizing it to drill, the lessee could not be enjoined. To permit the lot owners to enjoin the lessee under these circumstances would permit the lot owners to do indirectly what they could not do directly, that is, enjoin the state.
We next come to a consideration of the other and last contention made by the lot owners of Lincoln Terrace in connection with the question of consideration supporting their arrangement with the state. They contend that they gave up their right to drill and thereby produce oil and gas, and that the giving up of this right increased the drainage area of the state wells. There was a plat restriction against drilling operations in Lincoln Terrace effective at the time of the alleged arrangement with the state. Said plat restriction had been passed upon and held effective by three trial courts theretofore. Said plat restriction had been considered by the district court of Oklahoma county on two occasions, and in both instances held effective to prevent drilling for oil and gas in any part of Lincoln Terrace. Both of said cases were appealed to the Supreme Court of the State of Oklahoma, and the judgments of the trial court were affirmed; the affirmance of the second case, however, was after the attempted consolidation in this case. Said plat restriction was also passed upon by the Federal District Court for the Western District of Oklahoma, where it was also determined that said restriction prohibited drilling in said addition. However, the owners of lots in Lincoln Terrace still had the right to go into a court of equity and there present their contention that conditions had changed and the existing conditions then were such as to render the enforcement of said restriction unconscionable. Under such a showing a court of equity would strike down said restriction and refuse to enforce it. It is also true that by mutual consent of all the lot owners in *Page 646 Lincoln Terrace addition, said plat restriction might be waived and rendered ineffective. In such event drilling operations could be carried on. That situation might arise or be brought about at some subsequent date.
However indefinite and insignificant these rights may appear to have been, and, however improbable the success of said lot owners might be in these respects, the giving up of these rights is some indefinite detriment and the same has some intrinsic value. Is it sufficient, however, to support a transaction involving approximately one-half million dollars? It is grossly and flagrantly inadequate. It is doubtful if same would be sufficient to support the same transaction between private individuals. A different rule, however, maintains where you have private individuals on the one hand and public officers, handling public funds or property, on the other hand. Where public officers, such as the members of the Board of Public Affairs, as trustees of the people's property, purport to transfer, assign, sell or trade same, there must be a reasonably adequate consideration paid.
You have this situation here: This indefinite, highly improbable future right to drill in Lincoln Terrace addition was exchanged to the state by 31 out of approximately 400 lot owners therein for approximately one-half million dollars.
The majority opinion describes the consideration as "some benefit, or at least a supposed benefit." So under the majority opinion for the giving up of "some benefit, or at least a supposed benefit," these individual owners of lots in blocks contiguous to the state-owned Parkway land, to the exclusion of the other owners of 355 lots, received or will receive approximately one-half million dollars. Note in this connection also that only 31 of the 37 lot owners in said contiguous blocks have signed any lease, and, therefore, the six who have not given up their right to drill may in the future drill on their lots, thereby causing a failure of the only consideration that the state received. Note too, that the state wells on the Parkway tract are offset to the north, west, and south, and two of the four wells are offset to the east; most of the offsets to these wells are on state-owned lands. The state, therefore, is providing most of the drainage that the lot owners contend they are furnishing. I cannot agree that the stamp of approval of the Supreme Court of the State of Oklahoma shall be placed upon such a transaction.
In transactions with the officials of the government, or branch thereof, the rule of caveat emptor applies and private individuals, corporations or companies in such transactions with the state deal at their peril. The public interest is greater than that of any individual, corporation or company. "County property should not be sold for less than its known value," 15 Corpus Juris, 538, and purchases from public officials, with the authority to sell, should not be sustained "without the receiving in return some consideration of reasonably equivalent value." Haesloop v. City Council of Charleston, 123 S.C. 272, 115 S.E. 596. Certainly public officers are not authorized to sell public property that they hold in trust for all the people for a grossly inadequate consideration. All the cases cited by the lot owners of Lincoln Terrace involved herein as regards consideration have to do with transactions between private individuals. Private individuals may, if they desire, give their property away and any legal consideration is sufficient to support a sale between private individuals of privately owned property. The Constitution of the State of Oklahoma prohibits a gift by the state. There is no such inhibition as between individuals. If officers of the state cannot make an outright gift of state property, likewise, and for the same reason, they cannot purportedly sell it for a wholly inadequate consideration. The holding of the South Carolina Supreme Court that such a consideration must be "of reasonably equivalent value" is a complete embodiment of the spirit of the constitutional inhibition as to gift. Since this lawsuit involves publicly owned property, the *Page 647 public interest therein is always present. It, therefore, makes no difference whether the Board of Public Affairs acted in a governmental or proprietary capacity; the effect of this transaction is to give away a vast majority of the royalty accruing on state land to private lot owners under and by virtue of an attempted consolidation.
As regards the matter of the sale of property owned by the state, it makes no difference whether the transaction is or might be in connection with a proprietary function or a governmental one, if there was no authority to make the sale or the consideration was inadequate. By reason of the constitutional inhibition public officials of the state cannot make gifts, in whole or in part; so, therefore, we should adhere to the rule that a consideration to support a sale, assignment or transfer of public property must be reasonably adequate. The constitutional inhibition makes no distinction between property owned and possessed, assigned or transferred in a governmental capacity from that owned, transferred or assigned in a proprietary capacity. The framers of the Constitution intended that the peoples' property should not be given away in whole or in part. A sale based on a consideration not reasonably equivalent to the value of the thing sold would amount to a gift in part, and in this case an almost entire gift, in violation of the spirit and, I think, the letter of the constitutional inhibition as to gift.
If such consideration is sufficient, then a thing of insignificant value can be exchanged to the state, as here, for approximately one-half million dollars, though we all agree that no property of the state, regardless of the value thereof, may be given away. (To illustrate: No official of the state — not even the Governor nor the Legislature — could give a secondhand Ford car worth $50 to the members of the Board of Public Affairs for use while supervising the operation of state leases, yet the majority opinion holds that the State Board of Public Affairs can trade royalty worth over one-half million dollars for a simple, highly improbable futurity).
The 1935 act provided that "The State Board of Public Affairs is hereby authorized and empowered to sell and to execute oil and gas or mineral leases . . . on such property owned by the State"; the 1937 act provided that "The State Board of Public Affairs is hereby authorized and empowered to advertise, sell and execute an oil and gas lease or leases upon the following described state-owned lands." As to the general power granted, the two acts are exactly alike, the only difference being that the 1937 act was restricted in its application to the Parkway tract therein described, while the 1935 act applied to all state-owned lands. The Board of Public Affairs, the lot owners, the lessee and the Sunray Oil Company, and the 1937 Legislature knew that the 1935 Legislature totally failed to provide authority to consolidate, so the 1937 Legislature added the only provision of the 1937 act not contained in the 1935 act, that is, the power to provide for consolidation. The 1937 Legislature surely never dreamed that such a valuable thing as consolidation with the benefits of increased drainage would be disposed of without advertisement and an opportunity on the part of the buying public to bid thereon. This record is replete with testimony that the matter of "drainage" is an important and valuable thing in the oil industry; the lessee testified that the anticipated drainage from Lincoln Terrace by reason of the plat restriction and the consolidation provision of the lease, accounted for the unusually large cash bonus and royalty bid by it. There is not a word in either act which even hints that such a valuable thing as consolidation could be accomplished by private arrangement. The 1937 Legislature, therefore, intended that consolidation should actually be provided in the lease, and this fact advertised along with the lease so the buying public would be informed thereof and the state would receive competitive bids therefor. The exact wording of the 1937 act relative to consolidation is as follows: "Such Board may provide for the consolidation of such lease or leases with a lease or leases upon other lands under such terms as such Board *Page 648 may determine." This act contemplated the existence of other leases upon other lands at the time of its passage; it contemplated that the lease which might be sold thereon would provide for consolidation with other then existing lease or leases on other lands, and that such provided consolidation would be advertised in connection with the lease and the State of Oklahoma receive the consideration that the consolidation would invite.
The 1937 act provided a way to accomplish consolidation; the state in making the sale of said oil and gas lease reserved to itself the right to consolidate thereafter. This right would, of course, have to be exercised after the 1937 act became effective, and would have to be exercised in the manner prescribed. The record discloses that the Attorney General advised the Board it did not have the authority to consolidate under the maintaining circumstances and the state was trying torepudiate the deal before the 1937 act went into effect August10, 1937. There was never anything done by the state, except try to get out of the deal, after the Board of Public Affairs wrote its letter on February 20, 1937. The state did not do one thing after the effective date of the 1937 act that would even intimate a favorable attitude toward the deal as regards the lot owners; quite to the contrary, the Attorney General advised that such a deal was illegal, made demand for all the royalty money, refused a division order prepared in accordance with the consolidation letter, and finally filed suit for all the royalty money.
The purpose of requiring that a lease on state lands be advertised is to advise the buying public of what is about to be sold so that the highest price obtainable may be gotten. In order, therefore, to insure that the state would receive the proper consideration for drainage, that would naturally be an incident to consolidation, the Legislature intended that the consolidation should be effected before the lease was sold. Nobody would pay for this thing called "drainage" unless it was provided for in the lease which they were buying; unless the notice of the sale set forth the consolidation the public would not be advised about it.
Assuming, only for the sake of argument, that the power to make rules and regulations carries with it the implied power to consolidate under the 1935 act, still the consolidation would have to be determined and provided in the lease before the sale. All that has been said of the 1937 act in this respect is equally true of the 1935 act, indulging the violent presumption that the 1935 Legislature intended by the provision authorizing the Board of Public Affairs to make additional rules and regulations to give authority to said Board to consolidate on terms privately arrived at after the sale of the lease.
The lot owners and lessees make a rather strange contention regarding the application of estoppel in this case. While conceding generally that the state, by reason of its sovereignty, cannot be estopped, they contend that the selling of oil and gas leases and the operation thereof, even though the lease in question is on Capitol grounds held and maintained for governmental purposes, amounts to the exercise of power in a proprietary capacity. On the other hand, the state contends that "estoppel does not operate against the state," as was said in State ex rel. King v. McCurdy, 171 Okla. 445, 43 P.2d 124, in any manner involving the authority of public officials of the state to act. It contends that the members of the Board of Public Affairs being public officers and trustees of the people had no authority to do the thing attempted. As I have hereinbefore shown, there was no authority to consolidate under the 1935 act or any other effective act of the Legislature or our Constitution. We said in Airy et al. v. Thompson et al.,154 Okla. 1, 6 P.2d 445, that:
" 'No estoppel can be granted by the acts of such agents or officers in excess of their statutory or constitutional powers' 15 C. J. 541; In re Town of Afton, 43 Okla. 720, 144 P. 184."
I know of no case wherein we have ever varied from such rule. I know of *Page 649 no case outside of this jurisdiction, nor have we been cited any authority making application of a different rule, where the question of authority of public officials to act was in question. All cases cited by the defendants with reference to the application of the rule of estoppel as against the state are cases wherein the question of authority to act in the first instance was not involved. So, therefore, the sovereign state can never be estopped to question the authority of its officials to act in the premises.