this act, there is no provision in said act requiring any particular method of such promulgation. was left by the Legislature to the discretion of the conservation department as to the manner in which it would promulgate its rules and regulations.

These rules are usually published in booklets and distributed to owners of gas wells and the public generally.

Defendant corporation's Parks No. 2 well is rated as an "old well" in the order of the department of conservation in this case fixing the open-flow capacity of this well and its daily quota based upon 20 per cent. of the capacity. Defendart company received this order as its authority for taking gas from its well; in fact, took the gas as soon as the well was tested and its capacity was ascertained, and before the order was issued. Necessarily, defendant corporation, being engaged in operating old gas wells, must be presumed to have notice of the rules and regulations adopted by the department of conservation fixing the percentage of gas to be used from such wells. It had special notice of the order in this case fixing that percentage, and, moreover, acquiesced therein.

11. The motion in arrest of judgment filed in the case is but a repetition of the matters set out in the motion to quash and in the exception to the service of citation and process. It is stated in said exception, however, that a copy of the bill of information herein and citation were served on defendant corporation in the parish of Ouachita by the sheriff of Union parish, beyond the confines of his territorial jurisdiction and without authority of law. We find no citation in the record, and consequently no proof of the matter complained of, by defendant corporation.

12. The motion for new trial is based largely upon the contention that the state has failed to make out the case by sufficient proof. In the In the face of the admission made by the

51 A.L.R.-18.

manager of defendant company that it overdrew 44,000 cubic feet of gas under the new test of openflow capacity of Parks well No. 2, made by the department of conservation on October 7, 1924, the contention of defendant company does not seem to be well founded.

It was not necessary for the state to prove that defendant company had drawn in excess of 1,000,000 cubic feet of gas per day, as permitted by § 3 of Act 252 of 1924, as the percentage of said well is not controlled by that section, but by § 5 of said act limiting said well to the percentage fixed in Act 91 of 1922, as the well was drilled prior to June 24, 1924, and prior to the passage of said act.

Nor was it necessary for the state to prove that the gas drawn was used in the manufacture of "carbon black," for the reasons already assigned.

We agree with the trial judge that the evidence shows that the overdraft of gas was "willful" in this case, and was made after previous warning as to other overdrafts.

It is conceded that § 8 of Act 252 of 1924 applies only to any person partnership, firm, corporation, or association of persons "willfully" violating the provisions of said section.

The complaint made in the motion for new trial as to the process used in this case has already been passed upon.

It is therefore ordered that the conviction and sentence appealed from be affirmed.

St. Paul, J., dissents.

O'Niell, Ch. J., dissenting:

My opinion is that the proviso in § 3 of the Act 252 of 1924, allowing wells theretofore drilled or commenced before the 24th of June of that year to produce the same proportion of the open flow capacity that they were allowed to produce under the Act 91 of 1922, was intended merely to reserve to such wells the production allowed them

by the Act 91 of 1922, where it would otherwise have been reduced by the Act of 1924, and did not withhold from them the privilege granted by the tenth paragraph of § 3 of the Act of 1924, of producing 1,000,000 cubic feet under a working pressure exceeding half of the closed pressure and exceeding 200 pounds per square inch when the proportions allowed in the preceding paragraphs of § 3 of the Act of 1924 would otherwise have reduced the allowance of such wells below 1,000,000 cubic feet.

I respectfully dissent from the opinion and decree submitted in this case.

A petition for rehearing having been granted, St. Paul, J., on October 5, 1926, handed down the following opinion:

The defendant corporation was charged with wasting natural gas contrary to law, to wit, that "during the seven-day period beginning November 13, 1924, and ending November 20, 1924, [the defendant] at its Parks well No. 2, having a maximum flow of gas allowed by law of 4,790,000 cubic feet, willfully, etc. [did] draw from said well during said seven-day period the sum of 6,551,000 cubic feet, an overdraft of 1,757,000 cubic feet, It was convicted, and

now appeals.

Defendant has raised several issues, but since it would not be possible to state them clearly without first stating the laws applicable to the consumption of natural gas, we will first set forth those laws and thereafter proceed to consider the issues raised so far as may be necessary for the decision of this case.

I.

Act 91 of 1922, p. 170, is entitled: "An act to regulate and control the use of natural gas in the manufacture of carbon black, and to prescribe penalties for the violation of this act."

It provides, inter alia, that the commissioner of conservation shall

fix and determine the percentage of natural gas which may be used in the manufacture of carbon black, which percentage shall be not less than 15 nor more than 20 per cent. of the potential capacity of any well. It further provides that any person, firm, association, or corporation, who shall violate such regulation shall be guilty of a misdemeanor, etc.; but it provides no process for bringing into court any corporation charged with a violation of its provisions. There are also other minor features to the act, but they are not material here.

thereof, index to con

tents.

not at all necessary to its validity. Cf. State v. Fobbs, 160 La. 237, 106 So. 840.

The act provides numerous regulations for the drilling and operating of gas wells (§ 2). It also provides that the percentage of gas to be taken from a well for any purpose shall depend upon the acreage on which the well is drilled, that percentage being based on the open flow (potential) capacity of the well, and being as high as 24 per cent. for a well on 160 acres and as low as 7 per cent. for a well drilled on less than 5 acres; provided however, that, "where the percentages hereinabove provided [when] applied to any well reduces the amount allowed below one million cubic feet [per day], there may be taken from such well a total of one million cubic feet, provided the back pressure as elsewhere herein provided for, shall be maintained." Section 3.

Now the back pressure is provided for as follows: "It shall be unlawful for any person, firm, corporation, or association of persons

to take any gas whatever from any gas well when the working pressure of such well is less than one-half the closed [back] pressure of such well, and provided that the working pressure of any well cannot be reduced below 200 pounds regardless of what the closed [back] pressure is." Section 4.

From which it is clear that no gas at all may be taken from a well when the closed (back) pressure falls below 200 pounds; but that as long as any gas at all may be taken from a well, then at least 1,000,000 feet may be taken therefrom (under the conditions above stated) regardless of the acreage on which the well is drilled.

III.

All this is clear enough as to wells governed by the provisions of the Act of 1924. But the Parks well No. 2 was built before the passage of that act, and it is claimed both by the estate and by the defendant that it is not governed by the provisions of that act, and both sides rely (though for widely differing purposes) upon the same proviso of the Act of 1924, to wit: "Provided that the percentage of the open flow capacity of each well as fixed in this section, depending on location [acreage], shall not apply to any well or wells heretofore drilled,

.. [which] shall be allowed to produce the same percentage of the open flow capacity that such wells could produce under Act 91 of 1922." Section 3.

take at least 1,000,000 cubic feet per day, because that exemption (it is contended) applies only to the percentages "hereinabove provided"-i. e., those provided by the act of 1924.

But this contention is unsound, for the next clause of the proviso relied upon distinctly says that such wells "shall be allowed to produce the same percentage of the openflow capacity that such wells could produce under Act 91 of 1922." And the manifest purpose of this allowance was to secure to wells drilled prior to the

Mines-statutes

act of 1924 all the regulating gas advantages enjoyed wells-conunder the prior act,

reasons:

struction.

and not to place upon them additional restrictions beyond those placed upon wells drilled after the act of 1924, for which there are two (1) The allowance was to inure not only to wells drilled, but also to wells drilling, and even to wells only contracted for, before the passage of the act; and it is not reasonable to suppose that the Legislature believed that a well merely contracted for would be completed under circumstances more unfavorable than if the old contract were abandoned and a new contract entered upon; and (2) the Legislature is presumed to have contemplated a constitutional rather than an unconstitutional statute; but a statute which favors already existing estab

Constitutional

lishments is reasonable and constitutional, whilst a statute which discrimi- law-discriminates against such nation-existing gas wells. already existing establishments is unreasonable and unconstitutional. For instance, in regulating any profession or occupation, it is customary to discriminate to some degree in favor of those already engaged therein; and no one doubts that such discrimination does not deny any one the equal protection of the law. Cf. Watson v. State, 105 Md. 650, 66 Atl. 635; Watson v. Maryland, 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644.

ས.

The defendant also claims, under the foregoing proviso, that its well is not governed by the provisions of the Act of 1924, but exclusively by the Act of 1922.

Its purpose in seeking to have it declared that its well is governed exclusively by the former act is to escape the process provided in § 12 of the later act, by which corporations may be brought to the bar by a mere summons or citation, instead of by an impossible capias; for, as we said at the beginning, the former act provides no process for bringing to the bar any corporation violating its provisions.

But this contention is untenable. The act of 1924 was intended to be,

Writ and process-statutory

ice-availability.

and is, the paramount statute regumethod of serv lating the production of natural gas in this state. "This act shall be cumulative of and in addition to all the laws of this state which are not in direct conflict with the provisions hereof." Section 10. Hence all laws on the same subjectmatter, and not in conflict with this act, are by this clause incorporated into this statute and made part thereof as fully as if set forth in full therein. So that Act 91 of 1922 is, as it were, a mere section of the act of 1924, just as § 33 of the Act of May 4, 1805, became merged into the Revised Statutes of 1870 by virtue of § 3990 thereof, for manifestly the crimes to be punished under (certain sections of) those Revised Statutes are the crimes defined by the act of 1805, which must therefore be read into each several section which punishes one of those crimes.

Hence the sum and substance of this case is, that there is but one statute regulating the amount of natural gas which may be taken from a well, and that statute is the Act of 1924, with a proviso therein incorporated to the effect that a well drilled before the passage of said act may still take at least the same

Hence: (1) The trial judge correctly overruled defendant's demurrer to the form of process; (2) the question of the constitutionality of Act 91 of 1922 is not involved, since defendant has no interest in that question; and (3) the trial judge erred when he refused to charge himself, as requested (in substance) by defendant, that defendant was

entitled to take at least 1,000,000 cubic feet of gas per day from its Parks well No. 2, if in doing SO the working pressure of

Mines-quantity of gas to be

taken from well.

said well was not reduced below 200 pounds or below one-half the back pressure of said well, and if said back pressure itself remained constantly above 200 pounds.

For the reasons assigned, the sentence and verdict herein are reversed and set aside, and the case is now remanded for a new trial in accordance with the views hereinabove expressed. The right of the

state to apply for a rehearing is reserved.

Overton, J., concurs in decree.

Land, J., dissents and hands down

reasons.

Land, J., dissenting:

Section 3 of Act 252 of 1924, “An Act to conserve the natural gas resources of the state of Louisiana,' provides that "the percentage of the open-flow capacity that gas wells may be allowed to produce or that may be drawn from each gas well shall depend upon the acreage upon which the well is drilled."

A schedule of percentages is fixed in this section of the act ranging from 24 per cent. of the open-flow capacity of a well drilled on a tract of 160 acres or more to less than 7 per cent. of the open-flow capacity of a well drilled on a 5-acre tract.

It is declared in this section 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"i. e.," provided that the working pressure of any well cannot be reduced below 200 pounds regardless of what the closed pressure is." Paragraph 2, § 4, Act 252 of 1924, p. 657.

It is expressly provided in § 3 of said act "that the percentage of the open-flow capacity of each well as fixed in this section depending on location, shall not apply to any well or wells heretofore drilled."

It is conceded that defendant company's well was completed before the passage of Act 252 of 1924. The testimony in the case shows that at no time have the acreage percentages fixed by the act of 1924 been applied to the well of defendant company, which has been operated all the time under the percentages of Act 91 of 1922 of not less than 15 nor more than 20 per cent. of the open-flow capacity of the well.

It is not possible to apply the acreage percentages of Act 252 of 1924 to any well that has been drilled prior to the adoption of that act. As defendant company's well is not one that has been reduced by the application of the acreage percentages of Act 252 of 1924, this company is clearly debarred from claiming under that act the benefit of the million cubic feet of gas, which it claims in the present prosecution. If it were necessary to make the case plainer, a mere citation of § 5 of Act 252 of 1924 is all that is needed. Section 5 of the act of 1924 provides in clear and unmistakable terms that "the commissioner of conservation may grant permits for the building of plants to burn natural gas into carbon black under the conditions and provisions of Act No. 91 of 1922, except that the percentage of the open-flow capacity of gas wells that may be utilized in burning carbon black shall be controlled by this act [Act 252 of 1924], when the production of such well is controlled by this act [Act 252 of 1924], and by Act No. 91 of 1922 when the percentage that such wells may produce is controlled by said Act 91 of 1922."

Section 2 of Act 91 of 1922 declares "that the commissioner of conservation is authorized, directed, and empowered 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