On May 3, 1950, the town of Ames, a municipal corporation, and others, as plaintiffs, filed herein their application to this court to assume original jurisdiction and award a writ of prohibition against the defendants, O. C. Wybrant, judge of the district court of Major county, Oklahoma, and the city of Enid, Oklahoma, a municipal corporation, enjoining further proceedings in four condemnation proceedings pending in said district court. Defendants have filed their response to said application and the matter now comes to be heard upon the application and response and the briefs filed in support thereof.
*308The actions in question are Nos. 6011, 6013, 6014 and 6018 upon the docket of said district court. The city of Enid is the plaintiff in all of said actions, and in each seeks to obtain through condemnation the estate of defendants in “ground water” (as defined in Tit. 82 of S. L. 1949, ch. 11, p. 641, et seq.) in lands therein described.
In pursuance of the prayer of the petitions the said judge of the court, after notice to defendants, appointed commissioners to view and appraise the premises. On the day of the appointment, and before same was made, the defendants in each of said cases appeared before said judge of the district court and filed and presented to said judge a motion to dismiss the petition of the plaintiff for divers reasons, all challenging the right of the plaintiff to condemn the rights involved. On presentation of said motion the judge declined to pass upon the merits thereof and passed the consideration thereof until the commissioners so appointed shall have reported. Such constitutes the material factual situation at the time of the filing of the application in this court.
The basis of the application is thus stated therein:
“That unless this court assumes original jurisdiction herein, your petitioners will lose their property without having had their day in court, and without due process of law in violation of their constitutional rights.”
It is urged (1) that with the incoming of the report of the commissioners the plaintiff is entitled under the law to take possession of the premises upon payment of the commissioners’ award and that it has declared its intention so to do, and (2) that the determination of plaintiff’s right to condemn if had only after the filing of such report and entry of plaintiff upon the premises is to deprive defendants of their property without a day in court.
Such conclusion could be sound only on the assumption that the law would permit the city to take possession before its right so to do is established. Such a taking would be violative of constitutional restrictions and there is no authority therefor. The conclusion is sought to be predicated upon the effect of Tit. 66 O. S. 1941 §53, permitting the corporation, upon payment of the damages assessed, to enter upon the premises, and upon the cases construing said section. The situation contemplated by the statute and obtaining in the cases construing it is one where the right to condemn the premises is not in question, because it is established under legislative power, and the sole question is the measure of damages. Bilby et al. v. District Court of Ninth Judicial District et al., 159 Okla. 268, 15 P. 2d 38. In such situation, as stated in City of Eufaula v. Ahrens et al., 58 Okla. 180, 159 P. 327, 328:
“The right of the corporation to take possession of the property and proceed with the work contemplated depends upon the ascertainment of the amount of damages to be paid either by the report of the appraisers or by verdict of the jury and judgment of the court pronounced thereon.”
Such rule can have no application where the power to condemn does not exist, or where it is sought to be exercised in excess of the power that obtains.
In art. II, sec. 24 of the Bill of Rights of our Constitution, there is provided:
“ . . . In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question.”
In Grand River Dam Authority v. Thompson, 189 Okla. 89, 113 P. 2d 818, wherein the quoted section was construed, we quoted with approval the following from 20 C. J., 634, §116:
“ . . . An excessive appropriation, or an appropriation of more land than is required for the contemplated purpose, is beyond the scope of the delegated power, even though it does not exceed the amount specified in the *309statute, and the courts will interfere to prevent an abuse of discretion or an arbitrary exercise of the power. If the statutes authorize the taking of more land than is necessary for the intended use it will be unconstitutional and void.”
In final analysis, the justiciable question is whether there is authority of law for the particular appropriation. The question can be no less justiciable where the issue is whether there is authority for any appropriation. In Oklahoma City v. Local Federal Savings & Loan Ass’n, 192 Okla. 188, 134 P. 2d 565, we said:
“ . . . And the fundamental power to exercise the right to so acquire property lies dormant in the state until the Legislature by specific enactment designates the occasion, the modes, and the agencies by and through which it may be placed in operation. Harn v. State ex rel. Williamson, Atty. Gen., 184 Okla. 306, 87 P. 2d 127. . . .
“The city has wholly failed in its contention that the property was acquired by condemnation under its superior power of eminent domain. It was without statutory power to so acquire the premises.”
A similar situation obtains when an existing power to condemn is sought to be exercised without compliance with constitutional requirements. Watkins et al. v. Board of Com’rs of Stephens County et al., 70 Okla. 305, 174 P. 523.
Therefore the establishment of the right to condemn is a prerequisite to any right of possession by the condemnor. To such effect, we stated in Wrightsman v. Southwestern Natural Gas Co., 173 Okla. 75, 46 P. 2d 925, 929:
“ ... In such cases denial of a tribunal in which to test the right to condemn prior to possession would be a denial of equal protection of the laws.”
Therein we expressly held that the landowner is entitled to challenge in the condemnation proceeding the right to condemn and have that question judicially determined prior to the final determination of the award for compensation and damages, and further entitled under authority of Tit. 12 O. S. 1941 §952, which is to be considered supplementary to the special statute concerning appeals (Tit. 66 O. S. 1941 §56) contained in the condemnation act, to appeal from the decision thereon. However, in ordinary course, such judicial determination is not proper until the matter of the condemnation is brought before the court by objection to the report of the commissioners for theretofore the functions of the judge in the appointment of commissioners are ministerial and not judicial. State ex rel. v. Johnson, Dist. Judge, 122 Okla. 241, 254 P. 61; French v. Ayres, 201 Okla. 494, 207 P. 2d 308. It is by reason thereof that the act of the judge in passing the motions to dismiss until the commissioners had filed their report was consistent with orderly procedure and proper.
It thus appears that the plaintiffs, as defendants in said causes pending in the district court, are, by law, afforded adequate remedies therein for the protection of their rights when property-sought, and we so hold.
And since it further appears that the district court of Major county has jurisdiction to hear and judicially determine the right of the city of Enid to prosecute the condemnation proceedings and also all questions property related thereto, this court will not prohibit that court from exercising its jurisdiction.
In view of the stress laid in the argument upon the alleged threat of plaintiff therein to enter possession before a determination of the question of plaintiff’s right to condemn, we deem it well to say that the district court after objection to the commissioners’ report or the trial judge prior thereto in a proper case and upon proper application and showing in connection with preliminary steps in condemnation could make an order temporarily *310restraining the condemnor from taking possession of the land pending final determination of the right to condemn. (Wrightsman v. Southwestern Natural Gas Co., supra).
Writ denied.
DAVISON, C. J., and CORN, LUTTRELL, HALLEY, and JOHNSON, JJ., concur. ARNOLD, V. C. J., concurs specially. WELCH and O’NEAL, JJ., dissent.