Two important questions are presented in the case at bar. The first, which I consider, is a matter of procedure. Should petitioner be permitted to dismiss his action? It is my view that this court's order denying petitioner's motion to dismiss is in excess of authority and an abuse of discretion.
2 R. C. L. 144, states the rule, par. 144:
"According to the great weight of authority an appellant or plaintiff in error may dismiss his appeal or writ of error without regard to the consent of the appellee or defendant in error. * * * The appellant has even been allowed to dismiss his appeal after the delivery of its opinion by the appellate court, but before judgment was rendered."
Dismissal, whether in original action or in appeal, is governed by the same general principle. It signifies the ending of a suit (18 C. J. 1145); it is in fact a nonsuit. While it is a true rule that a petitioner has no absolute right at all times and under all circumstances to dismiss — for such right is dependent upon the effect it has on the rights of the respondent — and in this regard the matter of dismissal rests within the discretion of the court, but subject to the restriction as affecting the movant's adversary. The movant cannot be compelled to prosecute the action against his will. Valentine v. Valentine, 119 N.Y. S. 426. 18 C. J. 1148:
"But, ordinarily, he has the legal right, which in some cases is said to amount to an absolute right to discontinue or dismiss his suit upon such terms and under such conditions as he sees fit, or upon such terms as the court may impose, and his reasons for so doing are of no concern to the court."
Nebraska so holds in Banks v. Uhl, 6 Neb. 145, under the view that a plaintiff is entitled to dismiss an action voluntarily without prejudice to another action, although his object in procuring dismissal is to enable him to proceed with another action concerning the same subject-matter.
Herein there can be no substantial ill effect upon the adverse party by permitting petitioner to dismiss, for proration will continue, the law will be presumed to be constitutional, and in fact the only gain to the adversary and all that can be hoped for by a decision of this subject-matter is a favorable judicial determination of the constitutionality of the statute, which seems to be a question about which they are very qualmy and in doubt.
"Under ordinary circumstances," says Corpus Juris, "it is almost a matter of course to grant a dismissal or nonsuit, before verdict, upon payment of costs." Veazie v. Waldleigh, 11 Pet. (U.S.) 55, 9 L.Ed. 630. Herein cost was paid in advance.
Section 664, C. O. S. 1921, provides that an action may be dismissed by plaintiff before final submission of the case.
In New H. Baking Co. v. Ball, 57 Kan. 812, 48 P. 137, it was held that the right to dismiss without prejudice before final submission is absolute and the denial of an application so to do is prejudicial error. Our statute is identical with that of Kansas. There it was said:
"The plaintiff is entitled to control the disposition of the action, where the application is seasonably made, and until the final submission of the cause. It was a common law right and in this state the statute expressly provides that the plaintiff may dismiss without prejudice to a future action before final submission of the case to the jury, or to the court, where the trial is by the court. * * * Until that time the right is absolute, to be exercised by the plaintiff at its option and without the consent of the defendants."
In Pugsley v. C., R.I. P. Ry. Co., 69 Kan. 599, 77 P. 579, when the court was giving reasons for sustaining a demurrer to, plaintiff's evidence, the plaintiff dismissed his action.
Of course safeguards protect a plaintiff where a dismissal is secured by fraud (Harjo v. Black, 49 Okla. 566, 153 P. 1137; Mullen v. Noah, 64 Okla. 181, 166 P. 742), or in the event plaintiff is of unsound mind. 2 R. C. L. 168, par. 144.
What constitutes final submission in this case? My view is that the cause is not closed until the physical handing down of decision on the merits, which as yet has not occurred. "Final submission" is not made until all questions of law have been disposed of by the court, says the Kentucky court. Doss v. Ill. Cent. R. Co., 198 Ky. 222, 249 S.W. 346. "Final submission" means a submission which is equivalent of the return of the verdict, says the court of Montana. Samuel v. Montana R. Col. Co., 69 Mont. 111, 220 P. 1093.
In Avery v. Jayhawker Gasoline Co., 101 Okla. 286,225 P. 544, the provisions of section 604, supra, were construed in accord herewith, and in Naylor v. Eastman Natl. Bk.,107 Okla. 208, 232 P. 73, this court held that a "plaintiff may, without leave of court, dismiss before final submission to juryor rendition of judgment by filing signed statement," by virtue of section 605, C. O. S. *Page 257 1921. We there held: "Section 665, C. O. S. 1921, grants unto a plaintiff a right of dismissal in addition to the right given him by section 664," and that
"It is not necessary to determine here whether the submission to the court of defendant's motion for judgment upon the pleadings was such final submission of the case' as bars the plaintiff from their dismissing of his action under section 665, supra. This is true because under section 665, supra, the plaintiff may so dismiss upon payment of cost at any time before his adversary has filed a pleading in the action asking affirmative relief. He may in the absence of such pleading, therefore, do so until the case has been terminated by the judgment of the court, if the same has not been finally submitted to a jury."
Such is the situation before this court, there is no pleading for affirmative relief by responents, the costs are paid, the petitioner has filed his written and signed statement that he does so dismiss and under the adjudicated cases as recited in the Naylor Case, therefore, "Such dismissal is immediately effective without any order of dismissal being made by the court." Consequently I hold that under the decided cases we have no authority to deny dismissal as herein presented. But, if I be wrong in that conclusion, I maintain that this court abused its discretion by the order as made.
The statement attached to petitioner's motion to dismiss mentioned in the supplemental opinion set out the following:
"In view of the opinion of the federal court that before invoking an extraordinary remedy a party should first exhaust his remedy before the Corporation Commission, we have decided to dismiss the action in the Supreme Court. While we may obtain no relief whatsoever before the Corporation Commission, yet if this preliminary step be necessary, we will take it as we expect to comply with all the law."
The petitioner contends its federal rights are involved in the subject of the litigation. No doubt it desires to appeal eventually to the Supreme Court of the United States. Here the federal court, concerning this very subject-matter, has advised, according to the statement, that there should be an exhaustion of remedy by application to the Corporation Commission. Petitioner seeks to so proceed, the better to protect his rights, the better to present his case, not only for the benefit of this court, but also in view of appeal to the federal court from any adverse decision of this court, yet we by our order deny petitioner what I consider his absolute right under our adjudicated cases. At any rate it is an abuse of discretion to render such judgment as will conclude the parties to the action.
"In a case of doubtful solution, involving a question of conflict between a statute of the state and of the United States, this court will so decide as that the judgment may come in review before the highest judicial tribunal, the Supreme Court of the United States, without the expression of their own opinion, which might conclude the party." Hopkins v. Stockton, 2 Watts Sergeant (Pa.) 163.
The plain wording of the statute is:
"A plaintiff may, on the payment of costs, and without an order of court, dismiss any civil action brought by him at any time before a petition of intervention or answer praying for affirmative relief against him is filed in the action." Section 665.
No petition of intervention or answer praying for affirmative relief is filed in this cause.
By a long line of decisions the statute, supra, has heretofore meant exactly what it says. Davis v. Mimey,60 Okla. 244, 159 P. 1112; Okla. Coal Co. v. Corrigan, 67 Okla. 90,168 P. 1024; Stuart v. Hicks, 52 Okla. 665, 153 P. 143, and two early cases cited therein; Mullen v. Noah, supra; Interstate Crude Oil Co. v. Young, 29 Okla. 465, 118 P. 257; Long v. Bagwell, 38 Okla. 312, 133 P. 50; Kolp v. Parsons,50 Okla. 372, 150 P. 1043; Brown v. Massey, 19 Okla. 482,92 P. 246; Oberlander et al. v. Confrey, 38 Kan. 462, 17 P. 88; McIntosh v. Lynch, 78 Okla. 85, 188 P. 1079.
From a consideration of cases relied upon by the supplemental opinion it is obvious the only one of the two cited from this jurisdiction touching dismissal on motion of plaintiff is Taylor v. Green, 119 Okla. 297, 249 P. 393. The other cases quoted from deal with situations and cases where the subject-matter has become moot. The Taylor Case construes only section 664. It does not deal with section 665, and concerns a matter adversely affecting the substantial rights of movant's adversary in clouding his title to real estate.
In the Dove Case, 114 Okla. 144, 244 P. 798, there was no motion on the part of any one to dismiss. The only question considered in the connection here was whether the matter should be decided at all, since the subject-matter involved had become moot, and upon the subject of academic or moot questions the cases: Memphis St. Ry. Co. v. Rapid Transit Co. (Tenn.) 179 S.W. 635; State ex rel. R. R. Com'rs v. Southern Tel. *Page 258 Const. Co., 65 Fla. 67; In re Fairchild (N.Y.) 45 N.E. 943; Commonwealth of Mass. v. Klaus, 130 N.Y. S. 713; Giles. v. Harris, 189 U.S. 484 — all upon the moot question, were cited in the opinion by Mr. Justice Harrison and concern only that question. They constitute no logical basis for the supplemental opinion, for there is no motion by plaintiff to dismiss the actions in any of them.
It is my firm and fixed opinion that the Supreme Court should itself stand for regularity of procedure as above all other things.
My next protest goes to the decision of the majority on the subject-matter of the cause presented. Therein is presented the paramount issue as to, whether the state in the exercise of its police power can anticipate waste of petroleum, when no actual physical waste occurs, build about such conjecture a scheme of proration so as to deprive or restrict a private person or private business in the enjoyment and use of valuable property rights; this in an effort to control the economic law of supply and demand by preventing overproduction of crude oil, and thus afford protection to an industry. I hold not. I would analyze the proposition stated and solve the issue before us in the following manner:
1. The Constitution of this state does not warrant the orders made, but the exercise of such powers by the Corporation Commission in the making and execution of such orders as presented is contrary to the express provisions of the Constitution.
(a) The majority opinion falls into error when it concludes and holds that article 9 of the Constitution authorized the proceedings of the Corporation Commission resulting in the orders of proration, or the delegation of that power by the Legislature to the Corporation Commission under chapter 25, S. L. 1915.
(b) The power and authority of this state to conserve natural resources by preventing actual present waste thereof flows solely from the police power of the state.
2. "Economic waste" and "waste in excess of market demands" as used in the orders of proration presented, and as used in the statute (chapter 25, S. L. 1915) purporting to be authority for the orders, is fictitious, anticipatory and in contemplation of sale in the marts of trade. These words deal with value and price standards. The defined object word of the act "waste" eliminates private, lawful use of petroleum such as that to which the petitioner herein seeks to put his property. Herein the petitioner seeks to use its own petroleum in its own refinery, where it commits no waste as the word is defined in dictionaries and commonly understood.
3. Price fixing is evidenced by section 2 of the act (chapter 25, S. L. 1915), and that. section is admittedly unconstitutional by proponents in their briefs and so held unconstitutional by the majority opinion, wherein it is said that it cannot be assumed that we would sustain that section were it presented to us, for: (a) The presumption is that a law is constitutional. Since it cannot be assumed that if that section were before us we would sustain it, the result is that section 2 is held to be unconstitutional. (b) Section 2 being unconstitutional as a price fixing statute, the other provisions of the act are unconstitutional unless they are severable. They are not so severable because all sections are dependent upon the definition of the word "waste," which definition by the terms of the act, as disclosed by section 3 thereof, is extended beyond the ordinary meaning and common acceptation, and provides that the same "shall includeeconomic waste. * * * and waste * * * in excess of transportation or marketing facilities or reasonable marketdemands." Which phrase denotes the true object of the whole act not to be conservation of the natural resources, but a mere subterfuge by which control of prices is sought to be reached through an arbitrary and unreasonable infringement on property rights in an effort to influence the economic law of supply and demand. (e) "Protection of the industry" is shown in the briefs of proponent to be the true object of proration and not protection of the public in its enjoyment of natural resources through true conservation.
4. All provisions of the act are unconstitutional with the possible exception of section 1, which simply prohibits waste in its common meaning, and since fictitious and anticipated waste as defined must be eliminated, there remains two subjects embraced in the act as reflected in the title, foreign to each other and in contravention of section 57, art. 5, Constitution, ordaining that "every Act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title," which provision has been held by this court to be mandatory.
(a) The two subjects as contained in the act, supra, are: First, the definition and prohibition of waste of crude oil. Its background is a valid application of police *Page 259 power when applied to the prohibition of actual waste of natural resources. The second is provision for the equitable taking of crude oil from a common source. It is the declaration of a new public policy in lieu of existing public policy evidenced by a long line of judicial decisions wherein it is held that ownership of oil and gas becomes fixed only when reduced to possession based upon the principle that oil and gas like wild animals is "a sort of subterranean ferae naturae" and belongs only to him who reduces same to possession. In Re I. T. I. O. Co., 43 Okla. 307, 142 P. 997; Rich v. Doneghey,71 Okla. 204, 177 P. 86. The second subject-matter has to do with a private right or obligation attaching to a property or contract. It is judicial in character and not sufficiently correlated to the former as to be incidental. In re County Commissioners, 22 Okla. 435, 98 P. 557.
5. The respondent Corporation Commission herein pleads that in the promulgation of the orders of proration it was exercising "legislative power." There is no authority for the exercise of legislative power by the Corporation Commission except that provided by article 9 of the Constitution, which article deals solely with transportation and transmission companies and public service corporations, but not with private business or enterprises such as that of producing oil.
I have thus endeavored to merely outline my view upon this novel question. I shall now consider some of my objections to the majority opinion.
Cooley on Constitutional Limitations is relied upon and quoted from in a paragraph enclosed by parenthesis, p. 1319. A more applicable citation is contained on p. 1228, vol. 2 (8th Ed.) in reference to police power:
"But the power is subject to limitations imposed by the federal and state Constitutions upon every power of government, and it will not be suffered to invade or impair the fundamental liberties of the citizen"
— as well as notes thereto. As stated in State v. Ashbrook, 154 Mo. 375, 48 L. R. A. 265, "If no such object," it says in reference to prevention of some offense or manifest evil or preservation of public health, morals, safety or welfare, "is discernible, but the mere guise and masquerade of public control under the name of 'an act to regulate business and trade,' etc., is adopted, that the liberty and property rights of the citizens may be invaded, the courts will strike down the act as unwarranted. Mere legislative assumption of the right to direct and indicate the channel and course into which the private energies of the citizens shall flow, or the attempt to abridge or hamper his rights to pursue any lawful calling or avocation which he may choose without unreasonable regulation or molestation have ever been condemned in all free government." Chicago v. Netcher (Ill.) 48 L. R. A. 261; People ex rel. v. Coolidge (Mich.) 50 L. R. A. 499; Jackson v. Mass.,197 U.S. 11.
And likewise the following:
"A law which assumes to be a police regulation, but deprives the citizen of the use of his property under the pretense of preserving the public health, safety, comfort or welfare, when it is manifest that such is not the real object and purpose of the regulation, will be set aside as a clear and direct invasion of the right of property without any compensating advantages." Spann v. Dallas, 111 Tex. 350, 19 A. L. R. 1387.
And:
"The police power is not unlimited." Goldman v. Crowther,147 Md. 282, 38 A. L. R. 1455.
As well as:
"Police regulations cannot be purely arbitrary nor purely for the promotion of private interests." State v. Chicago, M. St. P. R. Co., 68 Minn. 381, 38 L. R. A. 672; Janesville v. Carpenter, 77 Wis. 288, 8 L. R. A. 808; Gaines Co. v. Holmes,154 Ga. 344, 27 A. L. R. 98.
And on page 1232 of the text:
"Neither the police power itself, nor the discretion to exercise it as need may require, can be bargained away by the state."
Here the Corporation Commission specifically pleaded that in the promulgation of the orders of proration it was exercising legislative power. It has no such power except in rate making cases, which exists by virtue of the provisions of article 9, supra, when dealing with transportation, transmission and "business clothed with a public nature such as a "public service enterprise." But when the Corporation Commission makes rules and regulations restricting the use of private property as here, it is, as it pleads, exercising legislative power, but in my judgment so doing without sanction of constitutional authority, for that power is by section 1, art. 4, and sec. 1, art. 5 (with specific exceptions, such as the right of the public to initiate a measure and the right of the Corporation Commission to deal with public service enterprises) limited to the Legislature.
Article 9, Constitution, does not provide for *Page 260 the extension of legislative power to the Corporation Commission as applied to a private enterprise or business. Section 19 thereof limits the conferring of additional power and imposition of additional duties to subject-matters "not inconsistent with this Constitution" and "in connection with the visitation, regulation or control of corporations or with the prescribing and enforcing of rates and charges to be observed in the conduct of any business where the state has theright to prescribe rates and charges in connection therewith orwith the assessment of the property of corporations or theappraisement of their franchises for taxation," etc. None of which provisions have anything to do with a private business enterprise such as that of an oil producer.
The Tindall Case cited in the majority opinion dealt with a common carrier for hire, a motor bus, and as therein stated it was a "public service business operating over public highways" and therein it was held: "Sections 18 and 19 of art. 9, Constitution, specifically confer upon the Corporation Commission authority to supervise, regulate and eontrol 'public sorvice corporations'." The majority opinion falls into error when it holds article 9 of the Constitution authorizes such power as exercised by the Corporation Commission.
The Tindall Case, supra, said:
"Bearing in mind that the business of petitioner is that of a transportation company' for hire, and therefore a 'public service enterprise,' and subject to state control, keeping in mind, also, that the state may exercise control over the public highways, * * * there is no merit in the contention that the state within the sphere of its police power cannot exercise a reasonable centrol over such business."
Which was tantamount to saying: Since the business is clothed with a public nature, control of which is specifically vested by the Constitution, article 9, in the Corporation Commission, the contention that there is no control by virtue of the police power is unworthy of consideration, however, such a business may be so controlled under the police power.
Since police power is the sole source of authority warranting the act under which the proration orders are made, it is my opinion that, while the legislative branch of government could exercise such power so as to prevent a physical waste of natural resources, it is without authority to, delegate such legislative power to an administrative agency such as the Corporation Commission.
"The Corporation Commission, as created by article 9 of the Constitution, is a body with, so far as the regulation ofpublic service corporations is concerned, executive, judicial and legislative powers, but those powers are limited, and it has such jurisdiction and authority only as is expressly or by necessary implication conferred upon it." Smith v. Corp. Comm.,101 Okla. 254, 225 P. 708; A., T. S. F. Ry. Co. v. Corp. Comm., 68 Okla. 1, 170 P. 1156; Okla. City v. Corp. Comm.,80 Okla. 194, 195 P. 498.
The power to restrict, regulate or control is a legislative function. The promulgation of a rule by which an oil well belonging to private individuals is allowed to produce only 8 1/3 per cent. of its potential is a legislative act, as is the rule ordaining that use of such property shall be restricted to 12 days out of 100.
Section 1, art. 4, Constitution, enumerates the three departments of government, declares they shall be separate and distinct and inhibits the exercise of the powers belonging to any one by the other, except as provided in the Constitution. In re County Comm., 22 Okla. 436, 98 P. 557; Williams v. City of Norman, 85 Okla. 230, 205 P. 144.
Chief Justice Williams in the first cited case quoted from Smith v. Strother, 68 Cal. 194, 8 P. 852, pointing out that a legislative act establishes a rule regulating and governing in matters or transactions occurring after its passage and defining rights and wrongs by a rule laid down. Such are the orders in the case at bar. It was there remarked that the distribution of powers of government into the three separate departments is the basic principle of our constitutional system. How important is that principle of our government when we view the intricate problems dealt with in this age of regulation and control as distinguished from the ancient principle embodied in the phrase "competition is the life of trade," and Jefferson's assertion that, "The least governed is the best governed." And while considering the policy embedded in our Constitution we may observe the dissertation of Montesquie on the Spirit of the Law:
"When the legislative and executive powers are united in one body or person there call be no liberty because apprehension may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner. * * * Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control for the judge would be the Legislature. Were it joined in the executive the judge *Page 261 might behave with all the violence of an oppressor."
Now notice the provisions for the exercise of judicial power contained in section 6 of the act, the rule making power in section 3, and bear in mind the general executive power possessed by the Corporation Commission. Can the conclusion be other than herein one agency, by act, without sanction of the Constitution, but in direct violation of both its spirit and letter, is sought to be vested legislative, executive and judicial powers, all inclusive of powers of government, which is to say that as applied to this private business, and as applied to these property rights, this agency is possessed with the power of an oriental despot.
When Madison said: 'The entire Legislature again can exercise no executive prerogative," he expounded a principle wherein the reverse ought to be true, which is that an executive department or agency should exercise no legislative function. But by the act which is by its definition all inclusive of physical waste, economic waste, waste actual and waste anticipated, the Legislature says in effect, "All is prohibited and power is conferred upon this agency to determine when and where the law to be made by this agency shall be applied."
It is my view that such act is not a valid exercise of police power, for this power to legislate is a nondelegable power.
The Ohio Oil Co. v. Indiana, 177 U. 190, cited and relied upon, concerned a physical waste of gas. It must be remembered that gas is by its nature very different from petroleum; it cannot be stored, its migratory propensities are infinitely more pronounced than those of oil, when discovered it must be confined or put to immediate use and upon the presence of gas depends to a large extent the reach and production of oil. There is no doubt that a police statute designed to prevent the escape of gas into the air or even its physical "wasteful utilization," as in the Carbon Black Cases, is sound. Quinton O. G. Co. v. Corp. Comm., 101 Okla. 164, 224 P. 156; Walls v. Midland Carbon Co., 254 U.S. 300; Lindsley v. Natl. Carbonic Gas Co., 220 U.S. 61; State v. Ohio Oil Co. (Ind.) 49 N.E. 809; Commonwealth v. Trent. (Ky.) 77 S.W. 390. Contra: See: Gas Products Co. v. Rankin (Mont.) 207 P. 998. And likewise cases construing statutes for safety of people. Winkler v. Anderson, 104 Kan. 1, 177 P. 521, the case involving a gas well within 100 feet of the electric railway, as in town lot cases, Marrs v. City of Oxford,24 F.2d 541. But those cases having nothing to do with waste in excess of market demands, and anticipated waste as a basis for price fixing.
Article 5, sec. 36, Constitution, relied upon by the majority, relative to the authority of the Legislature extending to all rightful subjects of legislation its a basis for the delegation of such legislative power to the Corporation Commission, is a stretch of that constitutional provision never dreamed of by the framers of the document, and certainly such provision does not strike down safeguards contained in the fundamental law such as article 1, sec. 4, supra, nor that contained in section 2, art. 2: "All persons have the inherent right to * * * the enjoyment of the gains of their own industry."
I am convinced that restrictions on the use of petitioner's valuable property works a taking and damage of that property for a merely purported public use, without just compensation in contravention of section 24, art. 2, Constitution of Oklahoma, if not in violation of the due process provision of the federal Constitution, for as Mr. Justice Holmes said in Pennsylvania v. Mahon, 260 U.S. 393:
"To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it."
And further:
"The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."
I hold that the circumstances here work a taking and damage to petitioner's private property, for a private use, to wit, benefit of industry in contravention of the provisions of section 23, of art. 2, Constitution.
The very essence of the petitioner's property right in its lease is the privilege of producing oil therefrom. It has expended thereon more than $100,000 in a well, expecting to take all that would flow therefrom, and indeed the royalty owner may exact, under penalty of forfeiture of the lease, a full production. Calor Oil Gas Co. v. Franzell (Ky.) 109 S.W. 328 and cases too numerous to cite from this court.
One phase of the question is whether the regulations under the police power offends against constitutional guaranties concerning property rights. Block v. Hirsh, 256 U.S. 135. It is my opinion that it does and is an infringement upon vested property rights. *Page 262
The majority opinion relies upon a departmental construction where it says:
"That portion of the Oil Conservation Act involved in this proceeding has been in effect and has been administered by the Corporation, Commission for many years and was before this court in the case of Love v. Boyle, 72 Okla. 300, 180 P. 705, as early as 1918."
Such is not the case. The state has never before attempted the enforcement of the act, No doubt for the reason that heretofore it has been considered plainly unconstitutional. The cited case considered merely the divesting of powers, generally, from the Chief Mine Inspector and the vesting of such conservation powers generally in the Corporation Commission. The various laws were mentioned but not construed.
There can be no acquiescence in a regulatory statute unenforced and hence no departmental construction relative to such a statute.
The majority opinion concludes that section 2 of the act, is unconstitutional for it says:
"Section 7955, C. O. S. 1921, which is section 2, of the Oil Conservation Law of 1915, is not involved in this action, and it is not to be assumed that if the Corporation Commission were attempting to fix the market value of oil under that section, we would sustain same."
I agree with that conclusion, but the presumption of law is that a statute is constitutional; since the reverse is here true, section 2 is unconstitutional. Moreover, in the case at bar the Corporation Commission finds in the order of proration:
"That there is a grave condition of overproduction of crude oil or petroleum in the state of Oklahoma, and a consequent actual and threatened condition of waste of such petroleum, and that said condition would continue through July, August, and September, 1930."
Wherefore, proration is ordered to "prevent economic waste, underground waste, surface waste and waste incident to the production of crude oil or petroleum in excess of transportation or market facilities or reasonable marketdemands."
There is no actual waste according to issues joined and so "actual waste," as used in the orders, must be in view of economic waste. Mark you, here is a petitioner who alleges without denial by his adversary that it commits to actual physical waste. It has its own market facilities, and therefore 1 conclude that the only restriction imposed upon it in these orders is by reason of "waste" calculated or contemplated in view of market demands and economic waste, which have to do with price standards and over-production, and may as well be applied to the agricultural situation as to the oil business under a paternalistic, discriminative tendency leading to the utter destruction of property guaranties of the federal and state Constitutions.
On page 18 of the brief of the Attorney Geheral and C.B. Ames, it is said as a basis for the law:
"Balancing supply and demand is necessary to preserve the industry."
And on page 4:
"For a long time Oklahoma stood alone in this type of legislation."
Which statements show both departure from conservation statutes of other states and the inapplicability of decisions upon the scope of the act now presented.
The object of the orders and the statute purporting to authorize them are said to be by the brief of the Mid-Continent and sundry producers, on p. 65:
"Furthermore, when production is had under such conditions as those stated, the supply of oil becomes so excessive ascompared to the demand that the price paid therefor is reduced to such figure that even those who are able to dispose of their oil must do so at an irretrievable loss on their investment."
That statement evidences the known purpose of the act to be the control of the economic condition without regard to physical waste and is a reasonable and logical conclusion to draw from the words of the act. It is my opinion that our system of government is not patterned to function in such paternalistic manner so as to fix price for the betterment of the industry to the cost of the consuming public. The business of producing and selling oil is not clothed with public interest. Tyson v. Banton, 71 L.Ed. (U.S.) 718; Wolff acking Co. v. Court of Ind. Relations, 262 U.S. 522.
In the former case Mr. Justice Sutherland said:
"A business is not affected with a public interest merely because it is large or because the public is warranted in having a feeling of concern in respect to its maintenance. Nor is the interest meant such as arises from the mere fact that the public derives benefit, accommodation, ease or enjoyment from the existence or operation of the business."
The rule is settled that a price-fixing statute *Page 263 will be upheld only when it deals with a business affected with public Interest. Dorchey v. Kansas, 264 U.S. 286.
Here the petitioner has a legitimate use for its oil, and production is had without actual waste, nor is petitioner's operations injuring producing formations. It is my opinion that such a producer should be permitted, and has the right, to produce petroleum to capacity and at will.
In West v. Kan. Natl. Gas Co., 221 U.S. 229., it was held that the Oklahoma conservation statute violated the due process clause of the federal Constitution. It seems to me that the statute now presented is equally destructive of property rights guaranteed by both state and federal Constitutions.
For these reasons, I decline to concur in the decision of the majority.
Note. — See under (1) 25 R. C. L. p. 847, et seq., R. C. L. Perm. Supp. p. 5617; R. C. L. Continuing Perm. Supp. p. 1015.