dissenting:
Under the terms of the contract here involved, the lease was for a term of ten years, “and as long thereafter as oil, gas or other mineral is produced from said land hereunder. ’ ’ There was no provision for production by operation of law, as might be contemplated from forcible pooling. The only kind of production allowed for was “hereunder,” that is, under this lease contract. Obviously the draining of gas from this land incidental to a well nearby was not within the contemplation of the parties at the time of the execution of the lease. And since no well was drilled on this acreage during the ten-year period, there was no production from this land “hereunder.” Consequently, on December 29, 1949, the expiration date of this lease, Beery’s 15/50ths reversionary interest became complete.
In the case of Koenig v. Calcote, et ux, 199 Miss. 435, 25 So. 2d 763, Calcote and wife, on October 4, 1935, executed a deed to Koenig for an undivided one-half interest in all oil, gas and minerals under 238 acres, subject to an outstanding oil and gas lease held by Sun Oil Company, executed on October 12, 1934, for a primary term of ten years. The land was not in production at the expiration of the primary term. This Court held that Koenig, under his deed, acquired “An undivided one-half interest in the reversionary fee in the minerals in place *703and that upon the forfeiture of the outstanding oil and gas lease in favor of Sun Oil Company, this interest ripened into a fee simple title in a one-half undivided interest in all of the oil, gas and other minerals in place . . .” See also Bailey v. Federal Land Bank, 207 Miss. 764, 43 So. 2d 375; 3 Summers Oil & Gas, Permanent Edition, Section 601, p. 486; Parten v. Webb, 1 So. 2d 76, 197 La. 197; 31A Texas Jurisprudence, Section 158, p. 276; Earp v. Mid-Continent Petroleum Corporation, 27 Pac. 2d 855, 91 A. L. R. 188.
But the majority opinion holds that the State Oil & Gas Board had the power, under Chapter 117, Laws of 1932, and Chapter 305, Laws of 1936, to adopt its orders of August 11, 1947, and September 11, 1947, and thereby integrate and forcibly pool Beery’s interest in this particular drilling unit.
It should be borne in mind that the Constitution of 1890, which, by Section 6, Article 3, thereof, recognizes the police power of the State, also contains a prohibition against the impairment of contracts, for Section 16, Article 3 thereof provides as follows: “Ex post facto laws, or laws impairing the obligation of contracts, shall not be passed.”
It is my view, with the greatest deference, that neither of the foregoing chapters delegated to the Board the power to force owners in a given unit to pool their interests. To this end, an analysis of the applicable provisions of those chapters is in order.
The powers granted to the Board are set out in Section 5 (a), Chapter 117, supra, the applicable part of which is as follows: “The Board hereby created shall have authority to adopt and promulgate such rules and regulations as may be reasonable and proper and as it may deem necessary for the conservation of crude oil or petroleum and/or natural gas produced in the State of Mississippi and to provide such rules and regulations for the drilling, development, sinking, deepening, aban*704donment and operation of oil and gas wells as may be necessary to prevent the waste of such products and to protect the common source of supply.”
In this grant of power, nothing whatever is said about pooling, forced pooling, or integration.
Evidently in an effort to encourage the discovery and production of gas, by Section 38 of said chapter, the percentage of the open flow capacity that gas wells may be allowed to produce, and the sizes of tracts and the volume of flow permitted were fixed for 160, 80, 40, 20, 10, 5, and less than 5, acres. And the twelfth paragraph of said Section 38 provides for the location of the well on a given acreage, and for the drilling of offset wells, and that “such offset well or wells shall be allowed to produce the same percentage of open flow capacity as the well or wells so offset.”
Not only is there no provision in Chapter 117, supra, which authorizes forced pooling, but, on the contrary, the language of Section 40 thereof is at complete variance with the idea of forced pooling, and, in my opinion, is positive proof that forced pooling was not within the contemplation of the Legislature, because that section encourages voluntary agreements between operators and royalty holders and declared that, when such agreements are approved by the Board, they shall not be held to violate the statutes relating to monopolies or contracts and combinations in restraint of trade. This section is as follows: “Agreements made in the interest of conservation of oil and gas, or the prevention of waste, between and among operators owning separate holdings in the same oil and gas pool, or in any area that appears from geological or other data to be underlaid by a common accumulation of oil and gas, or both, or between and among such operators and royalty owners therein for the purpose of bringing about the development and operation of said pool, or area, or any part thereof, as a unit of establishing and carrying out a plan for the cooperative development and operation thereof, when such *705agreements are approved by the Board, are héreby authorized and shall not be held or construed to violate any of the statutes of this State relating to monopolies or contracts and combinations in restraint of trade. ’ ’
Chapter 305, supra, merely amended Section 9, Chapter 117, supra, so as to provide a detailed method for the proration of gas and oil production.
It is true that in California Company v. State Oil & Gas Board, 200 Miss. 824, 27 So. 2d 542, it was held that the Board had the power to prescribe the general rule and regulation as to the spacing of oil and gas wells and to provide for exceptions thereto under given circumstances. In other words, the Board could prescribe the requisite number of acres for a gas unit. The opinion dealt solely with the proposition of spacing, and neither expressed nor implied that the Board could coerce or require the owners in a unit to pool their interests. Compare Dailey v. Railroad Commission, 133 S. W. 2d 219, where the Court of Civil Appeals of Texas said: “If it be assumed that the conservation statutes authorize the Commission to require pooling of acreage and that such pooling is not inhibited by the fundamental laws of both the state and nation, upon which question we do not pass, a complete answer to the pooling contention is that the spacing rule in question does not provide for the pooling of lands. . . . The Commission can not arbitrarily require any pooling of acreage where it has no rule or regulation prescribing and defining pooling ...”
As against the contention that forcible intégration and pooling should be implied, I find myself impressed by the fact that, although amendments to this effect were introduced in the Legislature during the 1940, 1942, 1944 and 1946 Sessions, in each instance, such amendments failed of passage. While there is authority to the contrary, “Courts construing a statute will take judicial notice of an attempted amendment thereof which failed *706of passage, as indicative of legislative policy ...” 31 C. J. S., Evidence, Section 16, pp. 528-9.
Moreover, the first enactment of the Legislature, which expressly authorized forcible pooling and integration, is found in Section 10 (a), Chapter 256, Laws of 1948. It was there provided that when the persons owning the drilling rights and the rights to share in the production from an established drilling unit “have not agreed to integrate their interests, the Board may, for the prevention of waste or to avoid the drilling of unnecessary wells as to a drilling unit of forty acres in area or less, but as to no drilling unit of greater area, require such persons to integrate their interests and to develop their lands as a drilling unit. (Emphasis supplied.) That section not only did not delegate to the Board authority to require integration of drilling units of more than forty acres, but actually prohibited such forced integration. And it was not until the passage of Chapter 220, Laws of 1950, under Section 3 thereof, after the expiration of the lease in this case, that the Legislature delegated to the Board the power to integrate interests without reference to the number of acres in the unit.
Besides, if the Acts of 1932 and 1936, supra, in fact authorized compulsory integration and pooling of interests, then the subsequent Acts of 1948 and 1950, supra, were indeed vain and useless enactments. On the contrary, the very passage of these later Acts, to me, is convincing proof that the Legislature deemed that it had not, by the earlier Acts, delegated to the Board the power to compel owners in a given unit to pool their interests.
Thus, if it can be said that the effect of the August 11, 1947, and September 11, 1947, orders of the Board was to integrate and pool Beery’s interest in this unit, then such orders should be declared ineffectual to accomplish those purposes, because the Board had not theretofore been invested with such power by the Legislature.
*707In Price v. Harley, 142 Miss. 584, 107 So. 673, it was said that: “The obligation of a contract imports, for the most part, its binding force upon the obligor to perform the duty agreed on, according to the nature and effect of the contract . . . The nature, construction, and effect of a contract are governed by the laws existing when and where it was made ...”
The majority opinion advances the proposition that the requirement of 320 acres for a drilling unit prohibited the appellant from carrying out its contract, and, unless the orders of August 11, 1947, and September 11, 1947, pooled these interests, it would be unjustly deprived of its property rights.
One answer to this contention is that the Board could, and did, make exceptions to the spacing pattern. It appears that, in this same field, Gulf Refining Company drilled 22 wells, and 20 of them were exceptions; Humble Oil & Refining Company drilled 32 wells, and six of them were exceptions; and that appellant drilled 17 wells, but that not one of them was an exception. In other words, the appellant, according to this record, made no effort whatsoever to obtain exceptions, and thereby prevent the confiscation of its property rights.
Another answer is that appellant made a solemn contract by which it agreed that, if it did not produce gas and oil from the land under this lease within ten years, its rights therein would cease. See Section 16, Article 3, Constitution of 1890, supra.
In Harmon v. Fleming, 25 Miss. 135, wherein two slaves were hired for a year and both of them died during the year, it was held that, since the parties knew, at the time of making the contract, that the slaves were subject to death before the expiration of the service, in the absence of a stipulation for an abatement of price in the event of death, there was no legal right to demand an abatement. The opinion stated the common law rule as follows: “Where the law casts a duty on a party, the performance shall be excused, if it be rendered im*708possible by the act of God. But where a party, by his own contract, engages to do an act, it is deemed to be his own fault and folly, that he did not thereby expressly provide against contingencies, and exempt himself from liability in certain events; and in such case, therefore, that is, in the instance of an absolute and general contract, the performance is not excused by an inevitable accident or other contingency, although not foreseen by, or within the control of the party.”
In Piaggio v. Somerville, 119 Miss. 6, 80 So. 342, it was held that the risk from unrestricted submarine attacks did not release from the contract to deliver a shipload of lumber, for it was said that: “the rule is that when a party by his own contract creates a duty or charge upon himself he is bound to discharge it, although so to do should subsequently become unexpectedly burdensome or even impossible; the answer to the objection of hardship in all such cases being that it might have been guarded against by a proper stipulation. ’ ’
In Chism, et ux. v. Hollis, et al., 152 Miss. 772, 118 So. 713, as regards the enforcement of contracts, this Court said: “This lease imposes a possible burden on appellants’ land. The parties were legally capacitated to contract. This Court does not make contract for such parties, and, under such circumstances, cannot substitute its opinion of what would be advantageous to the parties for their solemn agreement, and, whether wise or unwise, the parties must remain bound thereby. To hold otherwise would, in a measure, constitute the Court the guardian of the unwise. This step we cannot take.”
In Bradley v. Howell, 161 Miss. 346, 134 So. 843, this Court said: “The province of courts in respect to contracts extends not a single step farther than the enforcement thereof as made by the parties, and courts must be careful that they go no farther. If the court should fail in enforcement, it would be only failure or omission; but, if upon any procedure or pretext the court *709should go farther and make a contract between parties which they themselves never made or agreed upon and thereupon enforce the same as made by the court, this would be oppression.”
In Browne v. Bryan Lumber Company, 188 Miss. 71, 194 So. 296, where the contract for the sale of crossties provided that they were to be shipped by water, it was held that even though it became impossible for the seller to ship by water, such fact did not relieve performance of the contract as regards his liability to a broker for his commission, and cites Harmon v. Fleming, supra, and Piaggio v. Somerville, supra, with approval.
The lease contained no provision for the preservation of the rights of appellant in event of governmental intervention or limitation or frustration whereby the performance of the contract might become impossible of fulfillment. In my opinion, such failure on the part of the appellant so to stipulate does not justify this Court in making for it a contract which it did not see fit to make for itself. Harmon v. Fleming, supra; Piaggio v. Somerville, supra.
The case of Berline v. Waldschmidt, 156 Pac. 2d 865, decided by the Supreme Court of Kansas on March 10, 1945, is directly in point. In that case Berline acquired a lease which had been executed by Waldschmidt on May 27, 1939, for one-half of the minerals on a 5-acre tract. The lease was to run for a period of five years and as long as oil and gas should be produced from-the premises. This lease was also subject to an outstanding oil and gas lease, and Berline had no right to develop under his lease until after the expiration of the prior lease on November 15, 1943. He sought an extension because he was- prevented by governmental rules and regulations from drilling. The opinion of the Court, in applying the doctrine of commercial frustration, said that: “it is predicated upon the fundamental premise of giving relief in a situation where the parties could not reasonably *710protect themselves by the terms of their contract against contingencies which later arose, and that it never applies to give snch relief where the risk of the event that has supervened to cause the alleged frustration was reasonably foreseeable and could and should have been anticipated by. the parties and provision made therefor within the four corners of the agreement which it is contended should be supplemented through operation and application of the doctrine. If the events relied upon as bringing the doctrine into force and effect appear to have been reasonably foreseeable and controllable by the parties they may not invoke its principles as a defense to escape their obligations and the contract is enforceable in accordance with the provisions to be found therein. ’ ’
The opinion further referred to the laws in force in that state at the time of making the contract to-wit: ‘ ‘ On the date of the execution of the mineral deed there was in force and effect (Laws 1939, Ch. 227, now G. S. 1943 Supp. 55-602 to 55-509 (b), inch), regulating the production of oil in Kansas, and giving the Corporation Commission of the State authority to make and enforce rules, regulations and orders, in connection therewith. Prior to that time and as early as 1931 Kansas had recognized the necessity of conservation and elimination of waste and from that time down to 1939 comprehensive legislation had been enacted regulating and insuring the production of crude oil and natural gas without waste. . . . So, at that time, it must be concluded the appellant knew, or if he did not know he was bound to know, that the laws of Kansas permitted the spacing of oil wells in a manner similar to that subsequently provided for by the federal legislation which resulted in the situation described in his petition.” See also Gas Ridge, Inc. v. Suburban Agricultural Properties, Inc., 150 Fed. 2d 363, a Texas case.
*711The difference in the relative positions of the appellant and the appellee is that spacing, under the Acts of 1932 and 1936, supra, was reasonably foreseeable at the time of the execution of the lease. Appellant should have, therefore, anticipated that it would meet with just such a situation as now obtains, and to that end, should have contracted against such eventuality. So, while spacing, or a pattern for drilling, was reasonably foreseeable, there was no provision in either of those Acts whereby the several owners of interests in a drilling unit could be forced to pool their interests. As I see it, no restriction or limitation whatever on their freedom of contract is to be found in those Acts. Thus, the appellee could not reasonably foresee that his contract would be impaired and his interest forcibly pooled, inasmuch as the Legislature, in those Acts, delegated no such power to the Board.
The appellant knew about Beery’s interest prior to, and at the time of, drilling the well, if it made any investigation of the land records. It knew that, in accordance with the contract, he would have a 15/50ths reversionary fee interest on December 29, 1949. It was in the same position in this regard as Hassie Hunt Trust was in Hassie Hunt Trust v. Proctor, 215 Miss. 84, 60 So. 2d 551, namely that the Proctors were claiming a lease on the south ten acres of the forty involved. In that case, this Court held that the Hassie Hunt Trust was liable to the Proctors for a %th interest in the production from the oil well, less %th of the cost of drilling and maintenance thereof. In my opinion, if the Court should follow that case, it would be necessary to affirm this one.
The appellant has changed its position completely since the original hearing before the State Oil & Gas Board, and which was heard by this Court under the style of Superior Oil Company v. Beery, _________Miss.........., 59 So. 2d ‘689. The appellant recognized the necessity of obtaining voluntary pooling agreements, and secured *712such agreements from all interested parties except Beery. Failing in this particular, it then sought forcible integration, under the provisions of Chapter 220, Laws of 1950. In the case now before us, however, it now contends that it was unnecessary to obtain such pooling agreement from Beery, and on the contrary, his interest had theretofore been pooled by operation of law. The majority opinion holds, however, that these positions are not inconsistent.
In Superior Oil Company v. Foote, 214 Miss. 857, 59 So. 2d 85, the Court upheld the validity of Section 10, Chapter 256, Laws of 1948, as amended by Section 3, Chapter 220, Laws of 1950, under which the State Oil & Gas Board was authorized to require the owners in an oil or gas drilling unit to pool and integrate their interests to prevent waste or the drilling of unnecessary wells. In the opinion in that case the Court said this: “The Board’s order integrated the interests of appellees and all other owners, and correctly stated that it did not adjudicate what those interests were, that is, whether the establishment of the drilling units or the order of integration had the effect of extending or reinstating the primary terms of the leases. Hence we do not consider or decide those questions. We review only the order.”
In Green v. Superior Oil Company, .........Miss.........., 59 So. 2d 100, the Court said: “This is essentially a companion case to Superior Oil Company v. Foote, 214 Miss. 857, 59 So. 2d 85. It involves substantially the same issues as were raised in the Foote case, concerning the validity of an order of the State Oil and Gas Board requiring appellants to pool and integrate their interests in two gas drilling units in the Gwinville Field with all of the other owners in the units. We have studied carefully the record in the present case, and for purposes of the decision refer to and adopt the opinion in the Foote case referred to above. A few additional com*713ments concerning the present facts and points argued here are pertinent.
The court there disclaimed any purpose of deciding the issue now presented in the following words: “Appellants also state that Superior should have reasonably foreseen that spacing rules would at some time be adopted by the Board, when Superior obtained its leases in the late 1930’s, and should have incorporated in its leases pooling clauses; that having failed to do this Superior cannot be relieved of its duties as lessee and of the terms of the leases by the compulsory pooling order of the Board; and that impossibility arising subsequent to the making of a contract does not excuse nonperformance of it as to events reasonably foreseeable. 17 C. J. S., Contracts, Section 463; 1 A. L. I., Restatement, Contracts, Sec. 288. Appellants rely upon Berline v. Waldschmidt, 1945, 159 Kan. 585, 156 P. 2d 865. However, this argument presupposes that under the statutes the Board’s actions extended the primary terms of the leases, and we do not consider or express any opinion upon that point in this case. The Board’s order directed the integration of appellants’ interests whether they were unleased, or subject to leases. In the latter event, appellants ’ interest would consist in part of a possibility of reverter.”
In Superior Oil Company v. Griffith, 214 Miss. 891, 59 So. 2d 104, on the authority of Hutchins v. Humble Oil & Refining Company, ......... Miss.........., 59 So. 2d 103, and Superior Oil Company v. Foote, supra, the Court reversed the judgment of the circuit court and upheld the order of the Board and said: “but likewise without adjudicating the effect of such order upon the nature or extent of the rights of the respective owners.”
In Hutchins v. Humble Oil & Refining Company, supra, it was said: “We are therefore without power in this proceeding to adjudicate the effect of the order upon *714the property rights of appellants, regardless of its importance to them.”
In Superior Oil Company v. Beery, supra, in construing the case of Superior Oil Company v. Foote, supra, the Court said: “In that case, the Court did not decide whether the establishment of the drilling units or the order of integration had the effect of extending or reinstating the primary terms of the leases. Neither do we decide that question in this case, but leave the same for consideration and decision, when and if such question may be properly before us. ’ ’
Although this Court, in five decided cases, said that it was not deciding whether the establishment of drilling units or the orders of integration had the effect of extending or reinstating the primary terms of the leases, the majority opinion now says: “In other words, we think that the decision in the Green case (59 So. 2d 100) went a long way toward deciding the issue now before us.”
But even assuming that, under the Green case, supra, the 1932 and 1936 Acts, by necessary implication, authorized the Board to establish drilling units, this is a far cry from the further step of compelling the holders of interests in such drilling units to pool their interests. In other words, although the Board, under such assumption, had the power to designate a certain 320 acres as a gas drilling unit, it still was without power to compel the drilling of a well, and was without power, until the enactment of Chapter 220, Laws of 1950, to require the affected parties to pool their interest. After the designation of the unit, the parties could take it or leave it alone.
While the Legislature, by the Acts of '1932 and 1936, granted to the Board, in my opinion, very limited powers, the effect of the majority opinion is to hold that such powers were, in fact, unlimited, and that the Board, under the guise of preventing waste and avoiding the *715drilling of unnecessary wells, can do just about whatever it desires.
Apr. 27, 1953I am unwilling to approve or justify the impairment and destruction of the rights of citizens, based and founded upon solemn written contracts, by invoking the police power of the State, unless and until the sovereign, through its Legislature, shall make that purpose clear and decisive. In the sincere and earnest belief that the wrong result has been reached in this case, I must, with the greatest deference, respectfully dissent.
ON SUGGESTION OF ERROR
29 Adv. S. 34
64 So. 2d 357
Boberds, J.Appellee again argues that the 1932 and 1936 conservation statutes did not authorize the State Oil & Gas Board to promulgate rules and orders establishing drilling units, and that therefore there was accomplished no pooling of all the mineral interests in Unit No. 39. However, that question in substance had already been decided adversely to this contention in the following cases: Superior Oil Company v. Beery, 59 So. 2d 689 (Miss. 1952); Green v. Superior Oil Company, 59 So. 2d 100 (Miss. 1952); Superior Oil Company v. Foote, 214 Miss. 857, 59 So. 2d 85, 844 (1952); Superior Oil Company v. Griffith, 214 Miss. 891, 59 So. 2d 104 (1952), suggestion of error sustained in part, 214 Miss. 900, 60 So. 2d 505; Hutchins v. Humble Oil & Refining Company, 59 So. 2d 103 (Miss. 1952); Superior Oil Company v. Morgan, 59 So. 2d 105 (Miss. 1952). To the same basic effect are Griffith v. Gulf Refining Company, 215 Miss. 15, 60 So. 2d 518 (Miss. 1952), Hassie Hunt Trust v. Proctor, 3 Adv. S. 5, 60 So. 2d 551 (Miss. 1952), and Humble Oil & Refining Company v. Welborn, 15 Adv. S. 1, 62 So. 2d 211 (Miss. 1953).
Appellee’s contention that the Court has placed an unwarranted construction upon the habendum clause *716in Ms lease ignores the fact that this provision must be read in the light of the statutes, the rules of the Board, and of the acts of the Board and lessees in creating the unit, and that this case is decided by those factors, and not by the terms of the lease. The present decision, holding that the effect of the establishment of the drilling unit is to pool all interests in the unit and thereby to extend the terms of all leases then in effect, is a logical and necessary step in the light of all of the foregoing cases, and is essential in giving practical effect to the establishment of the unit. In brief, production on the unit is the equivalent of production on appellee’s land.
Appellee suggests that we should take judicial notice of the fact that bills to amend the conservation statutes, in order to expressly confer the power of compulsory pooling on the Board, failed of passage in the 1940, 1942, 1944, and 1946 sessions of the Legislature, but this circumstance, if it exists, is not persuasive of legislative intent as to an already existing statute. Sears Roebuck & Company v. State Board of Optometry, 213 Miss. 710, 726, 57 So. 2d 726 (1952).
It is argued that the remedy of compulsory pooling is a judicial or quasi-judicial function, and for a compulsory , order to be constitutionally valid, it must have been granted after notice and hearing to the parties affected by it; ’that no notice was given to appellee prior to the creation of the unit, and that therefore its creation is void as being violative of the due process clause.
Appellee concedes that in making regulations for spacing and for proration of production the Board acts in a legislative capacity, citing California Company v. State Oil & Gas Board, 200 Miss. 824, 27 So. 2d 542 (1947). And in that case the Court also held that in the granting of an exception to the spacing rules the Board was acting in a legislative and not a judicial capacity.
The first Beery case, 59 So. 2d 689, adopted and followed the decision in Superior Oil Company v. Foote, 214 Miss. 857, 59 So. 2d 85, 94 (1952). It held that the *717present Unit No. 39 had been established prior to the 1950 integration order based on the 1950 statute. The Foote opinion then held: “The only answer to that proposition which the appellees seriously argue is that Sec. 9 (b) requires a notice and hearing before the Board before the establishment of a drilling unit for each particular unit on the ground; and that no such notice and hearing was held for the establishment of Units 32 and 33. However, the joint operating agreement of August 4, 1948, designating Unit 33, and the designation of Unit 32 of May 18,1948, were made at a time when appellees’ and other owners’ mineral interests were under admittedly effective leases owned by the parties to those instruments designating the units. Those lessees owned the exclusive right to drill for and produce gas. And in the drilling and spacing of wells, the lessee represents the royalty owners. 31-A, Texas Jur., Oil and Gas, Sec. 426, p. 746.” This decision, applicable to the law and the rules in effect prior to the repeal of the 1932 and 1936 statutes, is res judicata on the question of notice and hearing.
In Griffith v. Gulf Refining Company, 215 Miss. 15, 60 So. 2d 518, 521 (Miss. 1952), it was there also held that where the unit was created without formal notice and hearing, under the laws prior to the 1948 Act, the lessee in the spacing and drilling of wells represented the royalty owners. A similar result was reached in Hassie Hunt Trust v. Proctor, 215 Miss. 84, 60 So. 2d 551 (Miss. 1952).
The foregoing principle established in these cases as to the creation of pooled units under the 1932 and 1936 statutes represents a practical and equitable result. The general rule is that in the drilling and spacing of wells the lessee represents the royalty owners. The Board was authorized to establish rules for spacing and for drilling units, which it did, after notice and hearing prior to the field-wide rules. There are two or more tracts within the unit, and once the unit is established no other well *718could be drilled in it under the rules of the Board. The location of the well was fixed and approved. There was nothing left for the Board to pass upon in ordering integration of the unit. The responsibility for drilling the well and for paying the royalty owner his share of production is on the lessee alone. The royalty owner’s only concern is that he obtain his pro rata portion of the production. Hence under the 1932 and 1936 laws notice and hearing to lessors prior to creation of a particular unit on the ground would serve no useful purpose, after the field-wide rules were made. Gulf Refining Company v. Griffith, 2 Adv. S. 27, 60 So. 2d 525, 526 (Miss. 1952).
Moreover, on this record there would have been no basis for the granting of an exception to the spacing rules, so as to allow the drilling of a well on the 50-acre tract in which appellee had a 15/50th interest subject to lease. An exception could be granted under the statutes and rules prior to the 1948 law only to prevent waste or to avoid confiscation of property. It was not necessary to prevent waste. The Board had already adjudicated that one well would efficiently drain 320 acres, and there is no showing to the contrary. As was held in the first Beery case, and in Superior v. Foote, 214 Miss. 857, 59 So. 2d 85, 95, the 1947 rules “for the Gwinville Field are premised on the finding by the Board that such rules are necessary to prevent waste. ’ ’
The only other basis for an exception would be in order to prevent confiscation of appellee’s property. The Board’s rule for exceptions before the 1948 Act was similar to Buie 37 of the Texas Bailroad Commission. The Supreme Court of Texas, in Gulf Land Company v. Atlantic Befining Company, 131 S. W. 2d 73, said “The term ‘confiscation’ evidently has reference to depriving the owner or lessee of a fair chance to recover the oil and gas in or under his land, or their equivalents in kind. It is evident that the word refers principally to drainage. ” The orders of August and September, 1947, re*719quired appellant and other lessees in the unit to pool all interests. This was done. As the result of this pooling, which was done at the command of the Board, appellant, appellee and others in the unit were able to recover the gas in or under their lands or its equivalent in kind. There was, therefore, no basis for an exception to the Board’s rules, for neither appellant nor appellee could show that the Board’s orders would result in confiscation. It is undisputed that there was substituted for appellee’s right to have a well on his land the right to receive the same amount from the unit well as he would have been allowed to receive under the proration statutes. The. allowable production from a well is apportioned according to the acreage content of the unit on which the well is drilled. In other words, there could not possibly exist any confiscation of appellee’s property because he is receiving in Unit 39 exactly the same amount of gas as he would have been allowed to receive if he had obtained an exception.
Moreover, as the Court observed in the original opinion, the statutes dealing with exceptions to the drilling rules do not contemplate that the owner of an undivided mineral interest, here 15/50ths in a 50-acre tract subject to lease, would be entitled to have an exception granted and a well drilled on the tract for the benefit of his undivided interest only, where all of his co-tenants in the tract are participating in unit production and are not therefore eligible to join in a request for an exception. Appellee seeks in this suit in equity to participate in the production from the unit well located on lands other than his (which he could not do at common law), but he does not want to also assume the responsibilities and duties incurred by those within the unit. This inequitable position in a converse situation was condemned in the Griffith and Hassie Hunt cases.
Appellee next argues that the express repeal of the 1932 and 1936 statutes, by Chapter 256, Laws of 1948, destroyed any pooling of appellee’s interest which may *720have occurred by virtue of the earlier statutes and rules. The 1948 Act, approved by the Governor on April 9th, went into effect thirty days thereafter, on May 9, 1948. Prior to the effective date of the 1948 statute, Unit 39 had been created and established. Superior Oil Company v. Beery, 59 So. 2d 689 (Miss. 1952).
Section 21 of Chapter 256 repeals only the 1932 and 1936 statutes and not established drilling units. Nor is an implication of the latter type of result warranted by the enactment in Section 10 of a compulsory pooling statute for future use. Section 21 does not have the scope imputed to it by appellee. The statute repeals the 1932 and 1936 laws and “all other laws and parts of law in conflict herewith.” It does not repeal completed actions of the Board prior thereto. It is a general repealing statute, and in effect operates as a declaration of what would be the legal effect of the act without that provision. It does not warrant an implication of a more extensive repeal. 50 Am. Jur., Statutes, Section 520. The same text in Section 526 says that the repeal of a statute does not affect rights which have accrued and vested under the repealed statute, and that construction is to be avoided which will give a retrospective operation to a repealing statute.
Unit No. 39 was created and established before the effective date of the 1948 Act. Section 21 has prospective operation only and is not retrospective. It was not designed to cancel accrued or vested rights and to have retrospective operation. Nor do its terms warrant such a reading as would raise that serious constitutional issue. And of equal significance,. the suggested interpretation would result in the cancellation of every unit created and every act done by the Board prior to the 1948 Act. We do not think that this was the legislative intent.
Appellee says finally that the pooling order of the Board of September 20, 1950, made under the 1950 statute, was held valid in Superior Oil Company v. Beery, 59 So. 2d 689, and that such order rendered res judicata *721the matter of when Unit 39 was pooled; and that when the Board in September 1950 integrated Unit 39 under the 1950 statute, this was res judicata that there had been no integration prior to that date.
However, the original decision of this Court on appeal from the 1950 integration order expressly held that Unit 39 had been “legally established” prior to the order of September 1950. That case did not consider or adjudicate whether the effect of the establishment was to extend the lease. That question was expressly pretermitted, and that is the question here. Hence the integration order of September 20, 1950, and this Court’s decision concerning it, in 59 So. 2d 689, is not res judicata of the issue decided here, since the present issue was not considered in the first Beery case. Moreover, the petition of Superior Oil Company in the first Beery case asked the Board for “the establishment or re-establishment, designation or re-designation, approval or re-approval of gas drilling Unit No. 39.” The final order of the State Oil & Gas Board, dated September 20, 1950, which was there affirmed, adjudicated that the lands in question “have been heretofore duly and legally established as gas drilling and producing Unit No. 39”; and that the same was “reapproved”. Hence appellee’s argument that the order of 1950 adjudicated that prior thereto there had been no unit established has no factual basis in the record. The order itself, on the contrary, reflects an adjudication that the unit had previously been legally established as a gas drilling and producing unit.
Suggestion of error overruled.
McGehee, C. J., and Kyle, Holmes, Arrington and Ethridge concur. Hall, J., took no part.