GIBSON, J.
This is an appeal from a judgment denying plaintiffs application for injunctive relief. The parties will be referred to as they appeared in the trial court.
Plaintiff brought this action for herself and all other persons similarly situated against the members of the State Board of Public Affairs, her employers, to restrain them from requiring her to work more than eight hours a day. The Commissioner of Labor of the State of Oklahoma filed his petition of intervention for and on behalf of and in aid of the plaintiff and all such other persons similarly situated. The action was predicated upon an alleged violation of section 1 of article 23 of the Constitution of the State of Oklahoma, as follows:
“Eight hours shall constitute a day’s work in all cases of employment by and on behalf of the State or any county or municipality.”
And of section 3 of Tit. 61 O. S. 1941, as follows:
“Eight hours shall constitute a day’s work for all laborers, workmen, mechanics, prison guards, janitors of public institutions, or other persons now employed or who may hereafter be employed by or on behalf of the State, by or on behalf of any county, city, township or other municipality, except in cases of extraordinary emergency which may arise in time of war, or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life: Provided, that in all such cases the laborers, workmen, mechanics or other persons so employed and working to exceed eight hours per calendar day shall be paid on the basis of eight hours constituting a day’s work; Provided, Further, that not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics, prison guards, janitors in public institutions, or other persons so employed by ■or on behalf of the State, or any county, city, township, or other municipality; and laborers, workmen, mechanics, or other persons employed by contractors /or subcontractors in the execution of any contract or contracts with the State, or with any county, city, township, or other municipality thereof, shall be deemed to be employed by or on behalf of the State, or of such county, city, township, or other municipality.”
The evidence disclosed that plaintiff was employed as an attendant at the Oklahoma Central State Hospital at Norman, Oklahoma, and that she was required to work twelve hours per day, six days per week; that her salary was $85 per month and board and room. That her salary was based on thirty days’ work per month and for every day’s absence her pay was reduced in that proportion. That she went to work at 6 o’clock a.m. and quit at 6 o’clock, p. m., each day of the week except 'Thursday.
The defendant’s answer denied that plaintiff’s services as such attendant were within the intendment of the above section. And it is alleged that, ¿n event the court should decide that plaintiff’s services are within the in-tendment thereof, the injunction should not be granted because, by reason of the fiscal affairs of the state, the granting of the injunction would be inequitable under the circumstances.
The trial court found that the employment of the plaintiff was within the purview of the statute but refused to grant the injunction upon the ground that the public interest would be adversely affected.
Plaintiff prosecutes this appeal, and for reversal contends that the court erred in not granting the injunction. Defendants contend that the judgment should be affirmed not only because of the reasons assigned by the court but for the further reason plaintiff’s service /is not within the purview of said statute, and urges that, since the refusal to grant the injunction is correct, for that reason alone the reason given by the court is not controlling.
[43]*43We deem it unnecessary to determine the question whether the services performed by the plaintiff are within the provisions of said section 3. Conceding,, for the purpose of the argument only,, that plaintiff’s employment is within the purview of the statute, we are of the opinion that the facts not only fail to disclose any grounds for an injunction as prayed, but show that no such grounds exist.
It is said in plaintiff’s brief that this is a “suit for injunction to prevent the State Board of Public Affairs from working state employees in excess of eight hours per day.” In effect it is a suit to enforce what is deemed to be the policy of the statute by requiring compliance therewith by officials upon whom the duty to enforce it is imposed.
Unless statutory authority therefor exists the plaintiff cannot invoke the injunction except upon grounds recognized by courts of equity. Equitable grounds for an injunction in a case such as this are stated in 28 Am. Jur. 356, §166, as follows:
“There is no doubt but that equity will exercise jurisdiction to restrain acts or threatened acts of public corporations or of public officers, boards, or commissions which are ultra vires and beyond the scope of their authority, outside their jurisdiction, unlawful or without authority, or which constitute a violation of their official duty, whenever the execution of such acts would cause irreparable injury to, or destroy rights and privileges of, the complainant, which are cognizable in equity, and for the protection of which he would have no adequate remedy at law.”
This doctrine was recognized by this court in Wentz et al. v. Ingenthron et al., 146 Okla. 165, 294 P. 154, 158, where there is quoted with approval the following:
“ ‘When officers of the state act under invalid authority, or exceed or abuse their lawful authority, and thereby invade private rights that are secured by the Constitution, an action to redress injuries caused by the unauthorized act is not a suit against the state, since the acts of officials that are not legally authorized, or that exceed or abuse authority or discretion conferred upon them, are not acts of the state.’ Louisville & Nashville Ry. Co. v. R. R. Commissioners, 63 Fla. 491, 58 So. 543, 44 L. R. A. (N.S.) 189.”
To establish her right to the injunction plaintiff relies solely upon the holdings in Fleming, Administrator of the Wage and Hour Division, U. S. Dept. of Labor, v. A. B. Kirschbaum Co. (3 Cir.) 124 Fed. 2d 567; State Bar of Oklahoma v. Retail Credit Ass’n et al., 170 Okla. 246, 37 P. 2d 954, and Curtis v. Registered Dentists of Oklahoma, 193 Okla. 233, 143 P. 2d 427.
In the Federal case the injunction was sought and granted in pursuance of the power granted by section 17 of the Fair Labor Standards Act of 1938 (29 U. S. C. A. §217). By the terms of that Act irreparable injury as ground for the injunction need not be shown. The rule in such situation and its contrast to that which obtains in equity is clearly recognized in Walling, Administrator, etc., v. Peavy-Wilson Lumber Co., Inc., 49 Fed. Supp. 846. In the syllabus it is held:
“No irreparable injury need be shown as a prerequisite to the issuance of a statutory writ of injunction issuing in an action at law in proceedings to enforce provisions of Fair Labor Standards Act. Fair Labor Standards Act of 1938, sec. 17, 29 U. S. C. A. sec. 217.”
And it is said in the opinion:
“Finally, we realize fully that what is sought here is the statutory writ of injunction, issuing under an action at law (no irreparable injury need be shown-United States v.
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GIBSON, J.
This is an appeal from a judgment denying plaintiffs application for injunctive relief. The parties will be referred to as they appeared in the trial court.
Plaintiff brought this action for herself and all other persons similarly situated against the members of the State Board of Public Affairs, her employers, to restrain them from requiring her to work more than eight hours a day. The Commissioner of Labor of the State of Oklahoma filed his petition of intervention for and on behalf of and in aid of the plaintiff and all such other persons similarly situated. The action was predicated upon an alleged violation of section 1 of article 23 of the Constitution of the State of Oklahoma, as follows:
“Eight hours shall constitute a day’s work in all cases of employment by and on behalf of the State or any county or municipality.”
And of section 3 of Tit. 61 O. S. 1941, as follows:
“Eight hours shall constitute a day’s work for all laborers, workmen, mechanics, prison guards, janitors of public institutions, or other persons now employed or who may hereafter be employed by or on behalf of the State, by or on behalf of any county, city, township or other municipality, except in cases of extraordinary emergency which may arise in time of war, or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life: Provided, that in all such cases the laborers, workmen, mechanics or other persons so employed and working to exceed eight hours per calendar day shall be paid on the basis of eight hours constituting a day’s work; Provided, Further, that not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics, prison guards, janitors in public institutions, or other persons so employed by ■or on behalf of the State, or any county, city, township, or other municipality; and laborers, workmen, mechanics, or other persons employed by contractors /or subcontractors in the execution of any contract or contracts with the State, or with any county, city, township, or other municipality thereof, shall be deemed to be employed by or on behalf of the State, or of such county, city, township, or other municipality.”
The evidence disclosed that plaintiff was employed as an attendant at the Oklahoma Central State Hospital at Norman, Oklahoma, and that she was required to work twelve hours per day, six days per week; that her salary was $85 per month and board and room. That her salary was based on thirty days’ work per month and for every day’s absence her pay was reduced in that proportion. That she went to work at 6 o’clock a.m. and quit at 6 o’clock, p. m., each day of the week except 'Thursday.
The defendant’s answer denied that plaintiff’s services as such attendant were within the intendment of the above section. And it is alleged that, ¿n event the court should decide that plaintiff’s services are within the in-tendment thereof, the injunction should not be granted because, by reason of the fiscal affairs of the state, the granting of the injunction would be inequitable under the circumstances.
The trial court found that the employment of the plaintiff was within the purview of the statute but refused to grant the injunction upon the ground that the public interest would be adversely affected.
Plaintiff prosecutes this appeal, and for reversal contends that the court erred in not granting the injunction. Defendants contend that the judgment should be affirmed not only because of the reasons assigned by the court but for the further reason plaintiff’s service /is not within the purview of said statute, and urges that, since the refusal to grant the injunction is correct, for that reason alone the reason given by the court is not controlling.
[43]*43We deem it unnecessary to determine the question whether the services performed by the plaintiff are within the provisions of said section 3. Conceding,, for the purpose of the argument only,, that plaintiff’s employment is within the purview of the statute, we are of the opinion that the facts not only fail to disclose any grounds for an injunction as prayed, but show that no such grounds exist.
It is said in plaintiff’s brief that this is a “suit for injunction to prevent the State Board of Public Affairs from working state employees in excess of eight hours per day.” In effect it is a suit to enforce what is deemed to be the policy of the statute by requiring compliance therewith by officials upon whom the duty to enforce it is imposed.
Unless statutory authority therefor exists the plaintiff cannot invoke the injunction except upon grounds recognized by courts of equity. Equitable grounds for an injunction in a case such as this are stated in 28 Am. Jur. 356, §166, as follows:
“There is no doubt but that equity will exercise jurisdiction to restrain acts or threatened acts of public corporations or of public officers, boards, or commissions which are ultra vires and beyond the scope of their authority, outside their jurisdiction, unlawful or without authority, or which constitute a violation of their official duty, whenever the execution of such acts would cause irreparable injury to, or destroy rights and privileges of, the complainant, which are cognizable in equity, and for the protection of which he would have no adequate remedy at law.”
This doctrine was recognized by this court in Wentz et al. v. Ingenthron et al., 146 Okla. 165, 294 P. 154, 158, where there is quoted with approval the following:
“ ‘When officers of the state act under invalid authority, or exceed or abuse their lawful authority, and thereby invade private rights that are secured by the Constitution, an action to redress injuries caused by the unauthorized act is not a suit against the state, since the acts of officials that are not legally authorized, or that exceed or abuse authority or discretion conferred upon them, are not acts of the state.’ Louisville & Nashville Ry. Co. v. R. R. Commissioners, 63 Fla. 491, 58 So. 543, 44 L. R. A. (N.S.) 189.”
To establish her right to the injunction plaintiff relies solely upon the holdings in Fleming, Administrator of the Wage and Hour Division, U. S. Dept. of Labor, v. A. B. Kirschbaum Co. (3 Cir.) 124 Fed. 2d 567; State Bar of Oklahoma v. Retail Credit Ass’n et al., 170 Okla. 246, 37 P. 2d 954, and Curtis v. Registered Dentists of Oklahoma, 193 Okla. 233, 143 P. 2d 427.
In the Federal case the injunction was sought and granted in pursuance of the power granted by section 17 of the Fair Labor Standards Act of 1938 (29 U. S. C. A. §217). By the terms of that Act irreparable injury as ground for the injunction need not be shown. The rule in such situation and its contrast to that which obtains in equity is clearly recognized in Walling, Administrator, etc., v. Peavy-Wilson Lumber Co., Inc., 49 Fed. Supp. 846. In the syllabus it is held:
“No irreparable injury need be shown as a prerequisite to the issuance of a statutory writ of injunction issuing in an action at law in proceedings to enforce provisions of Fair Labor Standards Act. Fair Labor Standards Act of 1938, sec. 17, 29 U. S. C. A. sec. 217.”
And it is said in the opinion:
“Finally, we realize fully that what is sought here is the statutory writ of injunction, issuing under an action at law (no irreparable injury need be shown-United States v. City and County of San Francisco, 310 U. S. 16, 30, 60 S. Ct. 749, 84 L. Ed. 1050), and not strictly under the action in equity, familiar to the chancery practice.”
Other cases to same effect are digested in footnote to section 217, page 374 of 29 U. S. C. A.
[44]*44In State Bar of Oklahoma v. Retail, Credit Ass’n, supra, the absence of financial interest of the Association was urged as ground for denial of the injunction. In response thereto the court declared the protection of the Association’s financial interest was not the basis of the action, and further, as follows:
“In keeping with the general plans and purposes of the creation of the plaintiff association, we have no doubt of the authority of the plaintiff to maintain the proceedings and to obtain the relief sought, since the act specifically authorizes the plaintiff to sue and be sued, and authorizes and requires the State Bar to enforce the provisions oí the State Bar Act.”
In the Curtis case, supra, the only issues involved on the appeal were (1) whether the business being conducted by Curtis was the “practice of dentistry,” and (2) and whether the violation of a penal statute could be enjoined. The ground of the plaintiff’s right to enjoin was not involved, considered or determined on the appeal.
Thus it appears that the authorities relied on negative rather than support the theory that plaintiff is entitled to ask an injunction on any ground less than that required in equity unless the intervention of the Labor Commissioner as plaintiff furnished authority therefor, concerning which there is nothing said in plaintiff’s brief. The Labor Commissioner did not appeal. In the petition of intervention there is no allegation of authority therefor. Our investigation fails to disclose any such authority and the existence thereof appears to be negatived by the statute creating the office (Tit. 40 O. S. 1941 §1), which gives an express definition of his powers within which no power to enforce the provisions of said section 3. is granted.
The decisions relied on are but concrete applications of the rule which is stated in 43 C. J. S. 670, as follows:
“As a general rule if a mere public right is to be vindicated or the mere ■evasion of law is to be prevented, suit for injunction should be brought by some public officer or body especially charged with a duty in this regard and not by a private individual who is not especially authorized by statute to bring suit under the particular circumstances.”
The only basis upon which the plaintiff could be entitled to the injunction is that the effect of the violation of the statute would be to invade a private right of the plaintiff for the protection of which she is entitled to invoke the equitable relief of injunction.
There is neither ‘ alleged nor proven any litigable right in the plaintiff other than that, if any, arising by reason of the contractual relation. And the only statement in plaintiff’s brief that claims any invasion of plaintiff’s right is the requirement to work twelve hours instead of eight, which is declared to be compulsory and therefore violative of the Fifth Amendment of the Federal Constitution. A sufficient answer to this contention is, the hours of service were required by a contract that was voluntarily entered into by the plaintiff. There is nothing upon which to predicate any compulsion by defendants.
Not only was there not shown a lit-igable right that was invaded but the very existence of any such right is negatived.
Section 3 is substantially the same as that enacted in Kansas in 1891 (Laws 1891, ch. 114.) The Kansas statute, which appears to have been the pattern for the Oklahoma statute, was construed by the Kansas court in 1899, in Re Dalton, 61 Kan. 257, 59 P. 336, and followed since that time. There, a| contractor of the county engaged in construction was prosecuted for employing labor for more than eight hours per day, and for defense the constitutionality of the Act was challenged as invading the power of contract. The court said:
“The law for a violation of which the petitioner is prosecuted is to be regarded as a direction by a principal [45]*45to his agent, — a matter of concern to the principal and agent alone. . . . In the case of U.S. v. Martin, 94 U.S. 400-404, 24 L. Ed. 128, in passing upon an act of Congress declaring that eight hours shall constitute a day’s work for laborers, workmen, or mechanics employed by or on behalf of the government of the United States, the court said: ‘We regard the statute chiefly as in the nature of a direction from a principal to his agent that eight hours is deemed to be a proper length of time 'for a day’s labor, and that his contracts shall be based upon that theory. It is a matter between the principal and his agent, in which a third party has no interest.’ . . . We see in this law no infringement of constitutional rights. There can be no compulsion of a contractor to bid upon public work, nor is the laborer bound to take employment from a person having such contract. If the terms relating to the hours of labor do not suit either the contractor or the employee, there is no compulsion upon either the one or the other to take the contract, or to perform any labor for the state.”
In the Martin case cited in the opinion the rule is stated in the syllabus as follows:
“1. The act of Congress of June 25, 1868 (15 Stat. 77), declaring that eight hours shall constitute a day’s work for all laborers, workmen, and mechanics employed by or on behalf of the government of the United States, is in the nature of a direction by the government to its agents.
“2. It is not a contract between the government and its laborers, that eight; hours shall constitute a day’s work. It neither prevents the government from making agreements with them, by which their labor may be more or less than eight hours a day, nor does it prescribe the amount of compensation for that or any other number of hours’ labor.”
More clearly in point here is the holding in United States v. Moses (C. C. A.) 126 Fed. 58, which is reflected as follows in the syllabus:
“Neither the eight-hour labor law of August 1, 1892, c. 352, sec. 1, 27 Stat. 340 (U. S. Comp. Stat. 1901, p. 2521), which fixes eight hours as a legal day’s Work for laborers and mechanics em-< ployed by the government, and makes it unlawful for any officer to require or permit a longer day’s work, nor article 62, par. 812, of the army regulations,, series 1901, providing that eight hours shall constitute a day’s work for laborers and mechanics employed by or on behalf of the United States, except in cases of emergency, affects the question of the wages of a laborer or mechanic so employed, which are governed solely by his contract; and if such an employee, whose wages per diem are fixed by his contract, knowingly works more than eight hours per day without any agreement for additional compensation, no such agreement is implied, and neither the statute nor regulation gives him a right to recover additional pay for the overtime.”
In view of what has been said, we hold there appears no ground upon which plaintiff is entitled to the injunction sought.
The trial court having properly denied the injunction, its judgment will be affirmed notwithstanding the fact that the court gave the wrong reasons therefor.
Affirmed.
ARNOLD, V. C. J., and WELCH, CORN, and JOHNSON, JJ., concur. DAVISON, C.J., and HALLEY and O’NEAL, JJ., dissent.