On the 9th day of September, 1930, oral argument was had in this cause and said cause was submitted to Supreme Court for a decision on the questions involved, as more fully appears from the original opinion herein. Subsequently thereto, the court prepared and adopted the original opinion herein, but the same was not filed with the clerk of this court and had not become the judgment of the court.
Thereafter, on October 1, 1930, plaintiff, by his attorney, John Head, filed a motion herein to dismiss his cause of action, which motion is in words and figures as follows:
"Comes now the complainant, C. C. Julian Oil Royalties Company, and dismisses this action, without prejudice."
The Attorney General of the state of Oklahoma, appearing for the Corporation Commission, filed herein objections to dismissal of said cause.
In this action is involved the constitutionality of the statutes of Oklahoma (more particularly set out in the original opinion) providing a plan or method for the prevention of waste of crude oil in Oklahoma and giving the Corporation Commission of Oklahoma power and authority to enforce the provisions of said statute.
Petitioner attached to his motion to dismiss a statement which contains the following: "We expect to continue to fight until we get relief or until the doors are closed behind us." Inasmuch as the constitutionality of the statute is involved and the general public is thereby interested, this court will retain jurisdiction of this cause and pass on the constitutionality of the statutes that public officials may be advised as to their duties and rights under the statute involved.
This court in the case of Dove v. Oglesby, 114 Okla. 144,244 P. 798, in the sixth paragraph of the syllabus, said:
'Although the time may have passed for granting, the specific relief asked for in this *Page 244 case, yet, inasmuch as the constitutionality of a statute is involved, and the general public thereby interested, the court will retain jurisdiction of the appeal, and pass up on the constitutionality of the statute."
This court in Taylor v. Green, 119 Okla. 297, 249 P. 393, in the first paragraph of the syllabus, said:
"After a case is finally submitted to a court or jury, the plaintiff has no legal right to dismiss his case without prejudice. It is a matter resting in the sound discretion of the court, and its ruling will not be reversed unless it appears that such discretion has been abused."
In the case of Taylor v. Green, supra, the case of Dickerman v. Crane (Kan. App.) 57 P. 305, was cited with approval. The second paragraph of the syllabus of that case reads as follows:
"After a final submission of a case to a court or jury, the plaintiff has no legal right to dismiss his case without prejudice. It is a matter resting in the sound discretion of the court, and its ruling will not be reversed unless it appears that such discretion has, been abused."
Also McKinley v. Schull (Kan.) 212 P. 898, was cited with approval. In the case of Dove v. Oglesby, supra, at page 800, this court cited with approval the following cases:
In Memphis St. Ry. Co. v. Rapid Transit Co., 133 Tenn. 99, 179 S.W. 635, the Supreme Court of Tennessee said:
"The Supreme Court on appeal has, jurisdiction and will determine the constitutionality of a law, although the cause can be decided upon other grounds."
In State ex rel. R. R. Com'rs v. Southern Tel. Con. Co.,65 Fla. 67, 61 So. 119, the Supreme Court of Florida said:
"Even though litigation may not be effective in all respects because of circumstances arising after appellate proceedings are taken, the appellate court does not thereby lose jurisdiction of the cause, and it may be retained for the determination of questions properly presented involving the duties and authority of public officials that are of general interest to the public."
In Re Fairchilld, 151 N.Y. 359, 45 N.E. 943, the Court of Appeals of New York said:
"The respondent contends that, inasmuch as the election has been held, the decision of the questions presented on this appeal is of no importance, as it can, at most, only affect the question of costs. We think the questions involved are of sufficient importance to require their determination by this court, as it may prevent future embarrassment in the congressional district to which this controversy relates, and also settle other questions upon which there is a conflict in the decisions of the Supreme Court."
In Commonwealth of Mass. v. Klaus, 130 N.Y. S. 713, 145 App. Div. 798, the court said:
"Appellate courts frequently pass upon questions affecting public interest, though the question has become moot in the particular case, and the appellate division will determine whether the statute permitting witnesses in this state to be subpoenaed to another state is constitutional, the special term having decided that it was invalid."
In Giles v. Harris, 189 U.S. 484, 23 S.Ct. 641, the Supreme Court of the United States said:
"Perhaps it should be added to the foregoing statement that the bill was filed in September, 1902, and alleged the plaintiff's desire to vote at an election coming off in November. This election has gone by, so that it is impossible to give specific relief with regard to that. But we are not prepared to dismiss the bill or the appeal on that ground, because to be enabled to cast a vote in that election is not, as in Mills v. Green, 16 S.Ct. 132, 159 U.S. 651, 657 (40 L. Ed. 293), the whole object of the bill. It is not even the principal object of the relief sought by the plaintiff. The principal object of that is to obtain the permanent advantages of registration as of a date before 1903."
We are of the opinion that this court should retain jurisdiction of this cause and settle the questions involved.
HUNT, SWINDALL, and ANDREWS, JJ., and GREEN, Special Justice, concur.
RILEY and CULLISON, JJ., dissent.
MASON, C. J., and LESTER, V. C. J., absent.
Special Concurring Opinion.