(dissenting).
I cannot agree with my associates that the absence of indispensable parties requires the reversal of this decree. Such an objection does not go to the court’s jurisdiction as a federal court to hear a cause. Elmendorf v. Taylor, 10 Wheat. 152, 6 L. Ed. 289;1 Hazeltine Corp. v. White (C. C. A.) 68 F.(2d) 715; Dyer v. Stauffer (C. C. A.) 19 F.(2d) 922; General Inv. Co. v. N. Y. Central R. Co., 271 U. S. 228, 46 S. Ct. 496, 70 L. Ed. 920; Rose v. Saunders (C. C. A.) 69 F.(2d) 339; Edenbornv. Wigton (C. C. A.) 74 F.(2d) 374. It goes to the equity of its proceeding in it. It operates to. prevent affirmative action which will adversely affect the rights of absent parties. Com. of Pennsylvania v. West Virginia, 262 U. S. 553, 43 S. Ct. 658, 67 L. Ed. 1117, 32 A. L. R. 300; authorities main opinion, supra. It never operates as a technical rule to prevent action which is not to the prejudice of such parties. When, as here, it appears on the face of the record that the making of additional parties will not' mend the fundamental defects of a bill, that, should new parties be made, the jurisdiction invoked will not be exerted against them, a court will not make the empty gesture of réquiring new parties to be made. It will, by an opinion on the merits, bring the litigation to an end.
My associates think the questions presented for decision are so difficult and doubtful that they ought not to be decided except in a case to which all con'cerned 'are parties. I do not think so. It seems to me perfectly plain that the propositions the District Judge advanced in support of the opinion he gave are sound, and well supported by authority. Because I agree in the main with what he said, this opinion will not be greatly extended.
I think that plaintiffs’ arguments, powerful and searching as they are, proceed to incorrect conclusions, because based upon a series of incorrect assumptions. The first is that, apart from legislative provisions, the use defendants are making of their land, by taking the gas from it, is a wasteful one and may be enjoined. This assumption is, I think, contrary to the settled law of Texas regarding the taking of oil and gas. That law is, an owner of oil or gas lands may take oil or gas from them, at least for any beneficial use, and the use here is certainly a beneficial one, in any quantity without being subject to judicial restraint at the suit of other land owners. Texoma Natural Gas Co. v. Terrell (D. C.) 2 F. Supp. 168, 170; Ehlinger v. Clark, 117 Tex. 547, 8 S.W.(2d) 666, 667; Hunt v. State (Tex. Civ. App.) 48 S.W.(2d) 466; Champlin Ref. Co. v. Corp. Comm., 286 U. S. 210, 52 S. Ct. 559, 76 L. Ed. 1062, 86 A. L. R. 403; Henderson, Inc., v. Railroad Comm. (D. C.) 56 F.(2d) 218, unless he takes it by methods which negligently or wantonly damage or destroy adjoining lands or structures. Comanche Duke Oil Co. v. Texas P. Coal & Oil Co. (Tex. Com. App.) 298 S. W. 554, 556.
In the light of this settled rule of law, I think it cannot be maintained that a court of equity will interfere at the suit of one owner, to prevent the beneficial, though it may be uneconomical, use by another owner, of gas or oil drawn from his land by proper drilling and production metJio$s.
' The second erroneous ; assumption on which plaintiffs’ arguments proceed is that the statutes of Texas do now," or ever did, restrain the owner absolutely and at all events from using gas drawn from his wells except for light and fuel., I tfyink this assumption proceeds from an incorrect reading and apprehension of article *7906008. ' What the statute did originally provide, before it was amended to provide for Commission action in • connection with it, was that the owner of “any well producing natural gas, in order to prevent the said gas from wasting by escape” (italics mine) shall within ten days after encountering such gas confine it in the well until such gas shall be utilized for light and fuel. Rev. St. Tex. 1925, art. 6008. As amended by the 42d Legislature at its First Called Session in 1931 (chapter 26, § 2), this article provided, that the Commission, the statutory conservation agent, could permit the use of gas for re-pressuring and for any other purposes which it might find, after hearing, practical and conducive to the public welfare. This statute, in some form or other, has been on the books since 1899 (Acts 1899, c. 49), but so far as I am aware, it has not been contended, until in this case, that it had any other legislative purpose than that defined in so many of the statutes against waste, to prevent the escape of gas into the air. The ideas plaintiffs now advance that it had the purpose or effect of limiting the gas to particular economic uses, and particularly that it operates to confer upon landowners the right to regulate the economic uses to which their neighbors in a gas field could put their gas, is not borne out or sustained, in my opinion, by either the statute itself, the practice under it, or the construction of it. In the Henderson Case this very point was carefully considered, and the whole statute was sustained, against the attack that it delegated legislative power to the Commission, on the ground that the statute did not limit to particular uses, but merely limited against waste, and that having in other sections defined what “waste” is, the Legislature committed to the Commission the matter of determining, in each particular instance of use, whether this was or was not, within statutory definition, wasteful.2 Its third erroneous assumption is that the statutes contain now, as they did when the Henderson Case was decided, a section equivalent to subdivision (j),’art. 6014, as amended by Laws 1931 (1st Called Sess.) c. 26, § 1, on which that case turned, “(j) The escape into the open air of natural gas, except as may be necessary in the drilling or operation of a well.” The 42d Legislature, at its Fourth Called Session (chapter 2, § 1 [Vernon’s Ann. Civ. St. Tex. art. 6014]), amended this subdivision out of the law, as indeed was necessary in accordance with the changed policy of the state in regard to permitting the use of gas for stripping. As the Conservation Statutes now stand, nothing in them declares wasteful the practice plaintiffs seek to enjoin. Nothing in them arbitrarily confines gas to the well until it can be used for light or fuel. Nothing in them gives the owner a right to restrain another owner’s beneficial use of his gas. On the contrary, they specifically authorize the use defendants are making.
But these are not all of plaintiffs’ erroneous assumptions. ,A basic error in their attack upon the provisos is the assumption that they were enacted as mere provisos to an existing statute in such manner that the proviso, if invalid, would fall without taking the statute with it. The legislative history of these enactments does not bear out this view.
As it stood when the Henderson Case was decided, it had already been, by an *791amendment of the whole section, made to carry the Commission’s permit proviso which was construed in that suit. After that case had decided that article 6008 as it stood (as amended by Laws 1931, 1st Called Sess., c. 26, § 2), construed in connection with subdivision (j) of article 6014, prevented the use of gas for stripping, the 43d Legislature, at its Regular Session (chapter 100, § 1), Senate Bill 92, amended article 6008 as amended by the 42d Legislature, 1st Called Sess., c. 26, § 2, to read as originally enacted with the permit proviso left off, and the 300,000-acre proviso added. As appears from the subsequent act of the same Legislature, this permit proviso was left off by mistake. Section 2 of this act provides that if any section, subdivision, paragraph, clause, or word of the article be held invalid, the remaining portions shall be valid, and (section 3) all laws inconsistent with or in conflict with this law shall be repealed. At the First Called Session of the 43d Legislature (chapter 88), House Bill 199 was enacted under the emergency clause. This bill recited that the failure to include the permit proviso in the earlier enactment was by mistake, and it re-enacted article 6008 so as to read as it now stands (Vernon’s Ann. Civ. St. Tex. art. 6008), with the two provisos in it. This act contained no separability provision. Its structure and the circumstances of its enactment make it clear, I think, that it was intended to stand or fall, it does stand or fall, as a whole. If the provisos are not valid, the whole act is invalid, for they so condition and make up the legislative policy of gas conservation, as that it cannot be said that any part of it is separable from the other. If then the provisos, or either of them, are invalid, the statute is. Thus, plaintiffs’ suits based on the statute inevitably fail, for if the provisos are valid, defendants are protected by them. If they are invalid, the whole statute falls.
I am already committed by the Henderson Case, to the proposition .that the permit proviso is valid. I agree with the District Judge that the other proviso is too. I think, however, that over and above all of these, there are larger reasons for denying the injunctions prayed.
Plaintiffs’ argument is directed, as the argument was in the case of Canadian River Gas Co. v. Terrell (D. C.) 4 F. Supp. 222, in regard to the statute under examination there, to maintaining Jjjat the Legislature has undertaken, by "the statute in question, to change the rule of property heretofore existing in Texas so as to take from the landowner the absolute right to his gas in place and give him, in lieu thereof, a qualified title, subject to his adjoin-ers’ approval of the use he intends to make of his gas. We did not then think it likely that the Legislature had intended, by a public conservation statute, to put such new rules in forcé as between private owners. I think the argument no more valid here. I -think it clear that unless its provisions clearly show that this is intended a statute ought not to be construed as an attempt to change the rule that an owner may take his oil, and gas, though in doing so he may appropriate oil or gas underlying his neighbor’s holdings, or may make a beneficial use of his oil or gas which does not coincide with his neighbor’s economic views. When, as here, the statutes in question expressly authorize the use plaintiffs seek to have enjoined, it is quite clear to me that federal equity jurisdiction ought not to be exerted to. establish a new rule of property, by declaring state statutes evidencing state policy to be invalid without a most clear showing of the existence of an undoubted right and a really threatened and irreparable injury which the injunction of the court may prevent. Pape v. St. Lucie Inlet Dist. & Port Authority Drainage Dist. (C. C. A.) 75 F.(2d) 865, and cases cited.
But there is still more against the exertion of federal equity jurisdiction in this case. Even in a direct attack upon a state statute on the ground that it violates a state Constitution, a federal court will not, in advance of a state court decision on the point, grant an injunction against it, unless its unconstitutionality is perfectly plain. Pullman Co. v. Knott, 235 U. S. 23, 35 S. Ct. 2, 59 L. Ed. 105; Kentucky-Tennessee Light & Power Co. v. City of Paris (C. C. A.) 48 F.(2d) 795; Doscher v. Query (D. C.) 21 F.(2d) 521; Utah Power & Light Co. v. Pfost, 286 U. S. 165, 185, 52 S. Ct. 548, 76 L. Ed. 1038. By much the more.will it not, in a controversy of this kind, where in a great gas field like this, one owner seeks to enjoin another owner from using his gas for the purpose the Legislature has declared he may use it for, and for which purpose others are using theirs, restrain that use in a collateral attack upon statutes and permits granted by the Commission under the authority of the statutes, on the ground that the statutes and permits authorizing the use *792are invalid. Especially will it not do this where to restrain the defendants from using their land under authority of the Commission and under direct statutory warrant, will result, according to plaintiffs’ own allegations, in grievously and injuriously depriving defendants, as well as plaintiffs, of gas which, still according to plaintiffs, is .being wasted and dissipated through the wells of others, taken under statutory authority, from the same pool.
I think the bills are plainly without equity. I respectfully dissent from the reversal.
It is said of an objection to the want of parties—
“This objection does not affect the jurisdiction, but addresses itself to tfi.e policy of the court. Courts of equity require, that all the parties concerned in interest shall be brought before them, that the matter in controversy may be finally settled. This equitable rule, however, is framed by the court itself, and is subject ■to its discretion. It is not *' * * an inflexible rule, a failure to observe which turns the party out of .court, because i,t has no jurisdiction over his cause; but being introduced by the court itself, for . the purposes of justice, is susceptible of modification, for. the promotion of those purposes.” Elmendorf v. Taylor, 10 Wheat. 152, 166, 6 L. Ed. 289.
In that ease it is said: “We find in the enactment of article 6008, requiring persons discovering gas in order to prevent its waste by escape, to confine it, and providing for inquiry by the commission into the propriety of an authorization, if found, 'of other uses, neither unreasonable exertion or ‘prohibited delegation of legislative power. This article, a part of an entire program, is of a piece with the balance of the applicable law. It is designed to and its very terms prevent, either the arbitrary shutting down of gas wells, of the wasteful escape of gas into the air. The statute carefully avoids an ' express requirement that the gas shall at all events be confined. It orders it confined in order to, and only in order to, prevent its escape by waste. It provides for an orderly and careful inquiry into and determination of the question of fact whether there are other uses than those of light and fuel, to which the gas may be puf without permitting waste by escape. It delegates to the body charged with the duty, and informed by experience in its discharge, of conserving the oil and gas resources of the state, the fact determination necessary to release a well. Such delegation to an administrative fact finding body like the Railroad Commission is universally recognized as reasonable, valid and appropriate. Armstrong v. Whitten (D.C.) 41 F.(2d) 241; United States v. Grimaud, 220 U. S. 506, 31 S. Ct. 480, 55 L. Ed. 563; Brazeale v. Strength (Tex. Civ. App.) 196 S. W. 247; Trimmier v. Carlton, 116 Tex. 572, 296 S. W. 1070; City of Denison v. Municipal Gas Co., 117 Tex. 291, 3 S.W.(2d) 794.” Henderson, Inc., v. R. R. Comm. (D. C.) 56 F.(2d) 218, 221.