pointed as elsewhere provided in this Constitution, who shall have and exercise such authority and power as may be prescribed by law. The Legislature shall enact all laws necessary to protect, conserve and replenish the natural resources of the state, and to prohibit and prevent the waste or any wasteful use thereof."

Section 2 of Act 91 of 1922 authorizes, directs, and empowers the commissioner of conservation to fix and determine, on the 1st day of October, 1922, and semiannually thereafter, "what percentage of consumption of natural gas produced by each gas well may be used in the manufacture of carbon black, said percentage of consumption to be based upon the potential capacity of such gas well, and which percentage shall not be less than fifteen per cent. and not more than twenty per cent. of the potential capacity of such well, provided that in fixing such basis of consumption the same rule, as far as possible, shall be applied to all gas wells in any producing gas area, and provided further, that the percentage of consumption may be increased in any particular well when the safety of such well may demand such increase."

Section 3 of said act provides "that the commissioner of conservation is authorized, empowered, directed and required to reduce the consumption of natural gas used in the manufacture of carbon black below the minimum fixed in § 2 of this act, after promulgation for sixty days of an order to that effect, whenever it is actually necessary to do so in obtaining an adequate supply of natural gas for domestic heating and lighting purposes in the state of Louisiana, and for manufacturing plants, industries and enterprises located and operated within the state of Louisiana, other than those engaged in the manufacture of carbon black; provided that the conditions set out in this section shall not become effective until such time as the establishment of factories, industrial plants, and enter

prises, the construction of pipe lines in the state of Louisiana, and domestic consumers in Louisiana, or any one of such shall provide a demand which necessitates the enforcement of the same."

Section 5 of said act declares "that the commissioner of conservation is authorized, empowered, and directed to make, adopt and promulgate orders, rules and regulations, which in his judgment may be necessary for the proper carrying out of the provisions of this act."

Section 6 of said act provides "that it shall be the duty of the commissioner of conservation to enforce the provisions of this act and the orders, rules and regulations made, adopted and promulgated by him."

Section 7 declares that "it shall be the duty of the department of justice to represent said commissioner in the enforcement of the provisions of this act, and of the orders, rules and regulations made, adopted and promulgated by said commissioner of conservation."

Section 8 provides that it shall be a misdemeanor for any person, partnership, firm, corporation, or association of persons to violate any of the provisions of this act, or any rule, regulation, or order of the commissioner of conservation prescribed by authority of this act, and fixes the fine at not less than $100 nor more than $500, makes daily violations of this section separate offenses, and for the third conviction subjects the offender to the forfeiture of the right to manufacture natural gas into carbon black, at the suit of the commissioner of conservation.

Does Act 91 of 1922 delegate to the commissioner of conservation the exercise of legislative functions by conferring upon him the authority to fix the percentage of gas to be used in the manufacture of carbon black? The members of the Legislature were advised of the fact that it was necessary to test and regauge gas wells every six months, in order to ascertain their potential capacity. Such wells, in the very nature of

things, fall off in production after months of constant activity.

Is the General Assembly of this state to be called into extra session every six months? Are special committees to be appointed at these semiannual sessions to test and regauge every gas well in the state? Are such committees to make a report to the committee on the whole as to whether the percentage of the potential capacity of each gas well should be increased or diminished? And, then, is a special act to be passed to continue in force the percentage of consumption from each gas well for the next six months?

Constitutions and laws are intended to be practical and sensible. They cannot well be impossible; nor should they be construed to defeat their evident purpose and intent.

The framers of the present Constitution were well aware of the fact that the commissioner of conservation is an officer in the executive branch of the state government. They were fully cognizant of the limitations placed upon each department of the state government by the organic law; yet, in face of all this, it is ordained that "the natural resources of the state shall be protected, conserved and replenished," and "the Legislature shall enact all laws necessary to protect, conserve and replenish the natural resources of the state, and to prohibit and prevent waste or any wasteful use thereof."

The Legislature has been careful not to leave the fixing of the percentage of gas to be used from wells to the mere arbitrary discretion of the commissioner of conservation.

The limits of the percentage have been established by the Legislature itself, in § 2 of Act 91 of 1922, at not less than 15 nor more than 20 per cent., as a general rule to guide the commissioner under ordinary circumstances.

Defendant company today is receiving the maximum limit of 20 per cent.

Every condition under which this percentage may be increased or di

minished has been specifically prescribed in §§ 2 and 3 of that act, and it has been expressly provided, in order to prevent discrimination, that, "in fixing such basis of consumption the same rule, as far as possible, shall be applied to all gas wells in any producing gas area."

In determining the minimum and maximum limits of the percentage of gas to be used, the Legislature realized that producing wells gradually change in flow and condition, and that it was impossible, therefore, for the state to prescribe any fixed rule as a basis for a fixed percentage of the gas to be consumed.

The acts which must be performed in the conservation of the oil and gas of the state, in order to protect these natural resources against waste and wasteful use, are multitudinous.

It is not possible for the state itself to be present at each time the open flow capacity of a well is tested, in order to ascertain whether the percentage of the gas to be taken should be increased or decreased, according to the condition of the well or its production. Should the state attempt to exercise such authority, the whole time of the Legislature would be thus consumed; its acts would be endless; the thing would be utterly impracticable.

Oil or gas in the common reservoir is not susceptible of private ownership, but falls within the domain of the natural resources of the state, until severed from the soil and reduced to possession in accordance with the conservation laws of the state and the rules and regulations of the department of conservation. Frost-Johnson Lumber Co. v. Salling, 150 La. 756, 91 So. 207.

The right of the state to protect, conserve, and replenish its natural resources is derived from the ownership of such resources.

In exercising its authority in the conservation of its natural resources, the state is not dealing with the property of private individuals, nor attempting to regulate the own

er's use of private property, but is acting directly with reference to the administration of property held by it under its sovereignty.

The owner of the soil is powerless to exploit beneath its surface for minerals in such manner as he may will. He must take of those natural resources, if at all, only in the way and to the extent and under the conditions prescribed by the sovereign.

He may not drill a well for gas, except under a permit from the department of conservation, and in the manner prescribed by conservation acts and the rules and regulations of the conservation department. Act 252 of 1924.

The state's ownership of oil and gas and forests cannot be severed from the soil, except by the permission of the state, and only then upon the payment of a royalty or excise tax for the privilege. Gulf Ref. Co. v. McFarland, 154 La. 251, 97 So. 433; Const. 1921, art. 10, § 21; Act 140 of 1922.

The case at bar is therefore analogous to the cases of United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480, and Light v. United States, 220 U. S. 523, 55 L. ed. 570, 31 Sup. Ct. Rep. 485.

The act complained of in the Grimaud Case was a departmental regulation of the secretary of agriculture forbidding stock grazing on a forest reservation without a permit from the department, and providing a penalty.

In passing on this question, the Supreme Court of the United States said: "In refusing permits to use a forest reservation for stock grazing, except upon stated terms or in stated ways, the secretary of agriculture merely asserts and enforces the proprietary right of the United States over land which it owns. The regulation of the Secretary, therefore, is not an exercise of legislative, or even of administrative, power; but is an ordinary and legitimate refusal of the landowner's authorized agent to allow persons having no

right in the land to use it as they will." (Italics ours.)

In the Grimaud Case, the court held that "legislative power was not unconstitutionally delegated to the secretary of agriculture by the provisions of the forest reserve acts of June 4, 1897, . making criminal the violation of the rules and regulations covering forest reservations, made and promulgated by him under authority of those statutes."

A corporation may use the natural resources owned by the state for manufacturing purposes, it is true, but such right is a mere privilege granted by the state, which may be revoked for repeated violations of the conservation acts or of the rules and regulations of the department of conservation. Act 252, 1924, 8; Act 91, 1922, § 8.

It is clear, therefore, that when the commissioner of conservation fixes the percentage of the gas to be taken from each well in the manufacture of carbon black, he is merely exercising the proprietary rights of the state in its natural resources by limiting the use of such resources to the end that they may be conserved.

The delegation by Act 91 of 1922 to the commissioner of conservation of such authority, as a restriction upon the use of natural gas by carbon black industries, is not, therefore, unconstitutional, as, manifestly, it is not the exercise of a legislative function by the state's agent.

The case of State v. Billot, 154 La. 402, 97 So. 589, relied upon by defendant, is in direct conflict with the views of the Supreme Court of the United States as expressed in the Grimaud and Light Cases.

The Billot Case holds that Act 204 of 1912, § 4, permitting the conservation commission to fix the open season during which wild deer may be killed and to vary it to suit conditions in various parishes, grants legislative power to the commission, a branch of the executive department, and therefore violates article 2, §§ 1 and 2, and article 6, § 1, of

the Constitution of 1921. Act 204 of 1912 is an "act to conserve the natural resources of the state of Louisiana, including the natural wild life on land and in the waters of the state," etc.

Section 1 of said act expressly declares "that the ownership and title to all fish, birds, and wild quadrupeds found in the state of Louisiana, or in the waters under the jurisdiction of the state not held by private ownership legally acquired, is hereby declared to be in the state."

It follows, therefore, that the state, in vesting the conservation commission with authority to fix the open season during which wild deer may be killed in the various parishes of the state, was dealing directly with the administration of its own property, unaffected by any private right or interest therein. It was the assertion and enforcement by the state, through its authorized agent of rights purely proprietary, and not the exercise by such agent of any legislative function or power.

Animals feræ naturæ belong to no one. Rev. Civ. Code, arts. 3412, 3415.

Game laws do not affect the private ownership of property, or its use. The right of a citizen of this state to take or kill game arises solely from the privilege or license which may be granted to him by the state, which has the authority to protect its natural wild life by prohibiting the taking or killing of birds and animals altogether for fixed periods, as well as by the establishment of closed seasons for that purpose. A citizen may take or kill game only at the times prescribed by the sovereign.

2. Defendant corporation contends that Act 252 of 1924 is unreasonable, discriminatory, and denies to it the equal protection of the law, contrary to the provisions of the Constitution of Louisiana, and of article 1 of the 14th Amendment to the Constitution of the United States, in that § 12 of said Act 252 of 1924 provides a method of pros

ecuting one class of persons, corporations, different from that applied to all other persons, firms, partnerships, and associations of persons, and in that it provides a method for the prosecution of corporations for the violation of provisions of this act different from that for the violation of all other laws.

Section 12 of Act 252 of 1924 provides that "any corporation violating the provisions of this act, or any order of the commissioner of conservation promulgated by authority of this act, may be prosecuted by indictment, or information, the same as a natural person, and, in addition to and cumulative of any way now existing for bringing a corporation into court in criminal prosecutions, may be brought into court to answer such prosecutions by service of a certified copy of such indictments or information served in the same manner as a civil suit would be served with notice to appear and answer such charge within ten days. In the event of failure to appear and answer such charge within the said ten days judgment by default may be entered as in civil cases, which judgment by default shall constitute a joining of issues and be treated as a plea of not guilty, and on the third day thereafter if no appearance has been made in the meantime evidence may be introduced on the part of the state and the trial judge may render such judgment and sentence as the law and evidence warrant. The amount that such defendants are sentenced to pay may be collected as sentences in other criminal cases, and in addition thereto may be collected in the same manner and same way as judgments in civil cases."

In § 13 of Act 252 of 1924 it is declared that:

"The following definitions and constructions are made a part of and shall be used in construing the meaning and purposes of this act:

'Person' means a natural person, a partnership, an association of persons or a corporation."

In declaring, therefore, in § 12 of said act, that "any corporation violating the provisions of this act, or any order of the commissioner of conservation promulgated by authority of this act, may be prosecuted by indictment, or information, the same as a natural person," the Legislature, in view of the definition given of "person" in § 13 of said act, has provided that a corporation may be prosecuted under § 12 of said act "the same as" a partnership, or association of persons, which are expressly included in the definition of "person."

Civil or additional process is provided for as to all corporations, firms, and associations of persons, as § 10 of Act 252 of 1924 provides that "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."

Additional civil process was necessarily provided for in § 12 of said act, as ideal persons can neither be arrested nor can they personally appear in court to plead to an indictment or information.

The laws of the state, prior to the adoption of § 12 of Act 252 of 1924, were inoperative as far as the prosecution of a corporation, or partnership, or association of persons, was concerned because they could not be enforced for lack of proper process compelling the defendant to appear.

It is not an unreasonable classification to provide a different or rather an additional process, as to ideal persons, who can be brought into court effectively only by civil process, in aid of a criminal prosecution.

3. Defendant corporation also attacks § 3 of Act 252 of 1924 as unreasonable, discriminatory, and as denying to it the equal protection of the law, with relation to gas wells referred to in said act and the percentage of gas as established therein which may be drawn from such wells.

Section 3 provides that, "where the percentages hereinabove provided applied to any well reduces

the amount allowed below one million cubic feet, 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."

Defendant corporation, in attempting to evade the process and penalties provided for in § 12 of Act 252 of 1924, alleged in its exception to the service and citation herein, that "appearer further shows that the gas well, styled in said bill of information as Parks No. 2, was drilled and completed prior to June 24, 1924, and prior to the passage of Act 252 of 1924; that the provisions of said Act No. 252 of 1924 do not apply to the production of gas from said gas well, in fact, are specially excluded therefrom by the recitals of said act; that the penalties prescribed therein and the mode of procedure thereunder are limited to the violations of the provisions of said Act of 1924; that there is no authority for the procedure taken herein, save for violations of said Act No. 252 of 1924; and that no valid verdict or judgment may be rendered against appearer herein." Tr. 6 and 7.

This plea is not made in the alternative. Defendant corporation stood upon its plea, and went to judgment on it. The trial judge held in his opinion in the case that "it is evident to this court that in so far as gas wells drilled prior to June 24, 1924, Act 252 of 1924, provides that the percentage of open flow capacity as fixed in Act 91 of 1922 shall continue as the basis of the owner's right of use, because it is expressly so stated in Act 252 of 1924."

Defendant corporation cannot be permitted to attack § 3 of said act upon the grounds alleged, in total disregard of its pleading, and of the judgment of the lower court, rendered and based upon the same. The opinion of the lower court as to this issue is correct.

4. In defendant's plea of unconstitutionality and motion to quash Act 252 of 1924 is attacked as un