On Rehearing. The defendant corporation was charged with wasting natural gas *Page 190 contrary to law, to wit, that "during the seven-day period beginning November 13, 1924, and ending November 20, 1924, * * * [the defendant] at its Parks well No. 2, having a maximum flow of gas allowed by law of 4,790.000 cubic feet, willfully, etc [did] draw from said well during said seven-day period the sum of 6,551,000 cubic feet, an overdraft of 1,757,000 cubic feet, * * *." It was convicted, and now appeals.
Defendant has raised several issues, but since it would not be possible to state them clearly without first stating the laws applicable to the consumption of natural gas, we will first set forth those laws and thereafter proceed to consider the issues raised so far as may be necessary for the decision of this case.
I. Act 91 of 1922, p. 170, is entitled:
"An act to regulate and control the use of natural gas in the manufacture of carbon black, and to prescribe penalties for the violation of this act."
It provides, inter alia, that the commissioner of conservation shall fix and determine the percentage of natural gas which may be used in the manufacture of carbon black, which percentage shall be not less than 15 nor more than 20 per cent. of the potential capacity of any well. It further provides that any person, firm, association, or corporation, who shall violate such regulation shall be guilty of a misdemeanor, etc.; but it provides no process for bringing into court any corporation charged with a violation of its provisions. There are also other minor features to the act, but they are not material here.
II. Act 252 of 1924 (page 594) is an act the purpose of which is stated in its title to be "To Conserve the Natural Gas Resources of the State of Louisiana." In addition to the object thus stated, the title to the act contains also a more or less lengthyindex to the contents *Page 191 thereof, not at all necessary to its validity. Cf. State v. Fobbs, 160 La. 237, 106 So. 840.
The act provides numerous regulations for the drilling and operating of gas wells (section 2). It also provides that the percentage of gas to be taken from a well for any purpose shall depend upon the acreage on which the well is drilled, that percentage being based on the open flow (potential) capacity of the well, and being as high as 24 per cent. for a well on 160 acres and as low as 7 per cent. for a well drilled on less than 5 acres; provided however, that:
"Where the percentages hereinabove provided [when] applied to any well, reduces the amount allowed below one million cubic feet, [per day] there may be taken from such well a total of one million cubic feet, provided the back pressure as elsewhere herein provided for, shall be maintained." Section 3.
Now the back pressure is provided for as follows:
"It shall be unlawful for any person, firm, corporation, or association of persons * * * to take any gas whatever from any gas well when the working pressure of such well is less than one-half the closed [back] pressure of such well, and provided that the working pressure of any well cannot be reduced below 200 pounds regardless of what the closed [back] pressure is." Section 4.
From which it is clear that no gas at all may be taken from a well when the closed (back) pressure falls below 200 pounds; but that as long as any gas at all may be taken from a well, then at least 1,000,000 feet may be taken therefrom (under the conditions above stated) regardless of the acreage on which the well is drilled.
III. All this is clear enough as to wells governed by the provisions of the Act of 1924. But the Parks well No. 2 was built before the passage of that act, and it is claimed both by the state and by the defendant that it is not governed by the provisions of that act, and both sides rely *Page 192 (though for widely differing purposes) upon the same proviso of the Act of 1924, to wit:
"Provided that the percentage of the open flow capacity of each well as fixed in this section, depending on location [acreage], shall not apply to any well or wells heretofore drilled, * * * [which] shall be allowed to produce the same percentage of the open flow capacity that such wells could produce under Act91 of 1922." Section 3.
IV. The state relies on the first clause of said proviso, that "the percentage * * * as fixed in this section * * * shall not apply to any well or wells heretofore drilled," seeking thereby to have it declared that wells drilled before the act of 1924 are not entitled to the exemption which allows them (under the conditions hereinabove mentioned) to take at least 1,000,000 cubic feet per day, because that exemption (it is contended) applies only to the percentages "hereinabove provided" — i.e., those provided by the act of 1924.
But this contention is unsound, for the next clause of the proviso relied upon distinctly says that such wells "shall beallowed to produce the same percentage of the open-flow capacity that such wells could produce under Act 91 of 1922." And the manifest purpose of this allowance was to secure to wells drilled prior to the act of 1924 all the advantages enjoyed under the prior act, and not to place upon them additional restrictions beyond those placed upon wells drilled after the act of 1924, for which there are two reasons: (1) The allowance was to inure not only to wells drilled, but also to wells drilling, and even to wells only contracted for, before the passage of the act; and it is not reasonable to suppose that the Legislature believed that a well merely contracted for would be completed under circumstances more unfavorable than if the old contract were abandoned and a new contract entered upon; and (2) the Legislature is presumed to have contemplated a constitutional rather than an unconstitutional statute; but a statute which favors already existing *Page 193 establishments is reasonable and constitutional, whilst a statute which discriminates against such already existing establishments is unreasonable and unconstitutional. For instance, in regulating any profession or occupation, it is customary to discriminate to some degree in favor of those already engaged therein; and no one doubts that such discrimination does not deny any one the equal protection of the law. Cf. Watson v. State, 105 Md. 650,66 A. 635; Watson v. Maryland, 218 U.S. 173, 30 S. Ct. 644,54 L. Ed. 987.
V. The defendant also claims, under the foregoing proviso, that its well is not governed by the provisions of the Act of 1924, but exclusively by the Act of 1922.
Its purpose in seeking to have it declared that its well is governed exclusively by the former act is to escape the process provided in section 12 of the later act, by which corporations may be brought to the bar by a mere summons or citation, instead of by an impossible capias; for, as we said at the beginning, the former act provides no process for bringing to the bar anycorporation violating its provisions.
But this contention is untenable. The act of 1924 was intended to be, and is, the paramount statute regulating the production of natural gas in this state. "This act shall be cumulative of and in addition to all the laws of this state which are not in direct conflict with the provisions hereof." Section 10. Hence all laws on the same subject-matter, and not in conflict with this act, are by this clause incorporated into this statute and made part thereof as fully as if set forth in full therein. So that Act 91 of 1922 is, as it were, a mere section of the act of 1924, just as section 33 of the Act of May 4, 1805, became merged into the Revised Statutes of 1870 by virtue of section 3990 thereof, for manifestly the crimes to be punished under (certain sections of) those Revised Statutes *Page 194 are the crimes defined by the act of 1805, which must therefore be read into each several section which punishes one of those crimes.
Hence the sum and substance of this case is, that there is but one statute regulating the amount of natural gas which may be taken from a well, and that statute is the Act of 1924, with aproviso therein incorporated to the effect that a well drilled before the passage of said act may still take at least the same percentage of gas as it might have taken under the Act of 1922.
VI. From the foregoing it follows: (1) That defendant's demurrer to the form of process issued against it under the Act of 1924, is not well founded; (2) that defendant has no interest in attacking the constitutionality of the act of 1922, since its provisions can operate only in its favor and never against it; and (3) that under the provisions of the act of 1924 defendant was entitled to take at least 1,000,000 cubic feet of gas from its Parks well No. 2, regardless both of the act of 1922 and of the acreage on which said well is drilled, if in doing so the working pressure of said well was not reduced below 200 pounds or below one-half the back pressure of said well, and if said back pressure itself remained constantly above 200 pounds.
VII. Hence: (1) The trial judge correctly overruled defendant's demurrer to the form of process; (2) the question of the constitutionality of Act 91 of 1922 is not involved, since defendant has no interest in that question; and (3) the trial judge erred when he refused to charge himself, as requested (in substance) by defendant, that defendant was entitled to take at least 1,000,000 cubic feet of gas per day from its Parks well No. 2, if in doing so the working pressure of said well was not reduced below 200 pounds or below one-half the back pressure of said well, and if *Page 195 said back pressure itself remained constantly above 200 pounds.
Decree. For the reasons assigned, the sentence and verdict herein are reversed and set aside, and the case is now remanded for a new trial in accordance with the views hereinabove expressed. The right of the state to apply for a rehearing is reserved.
OVERTON, J., concurs in decree.
LAND, J., dissents and hands down reasons.