the safety of such well may demand such increase."

It is manifest that it is only where the acreage percentages provided for in Act 252 of 1924 are applied to wells drilled under that act and reduce the amount allowed below 1,000,000 cubic feet that there may be taken from such wells a total of 1,000,000 cubic feet, provided the back or working pressure of any well is not reduced below 200 pounds regardless of what the closed pressure is.

Section 3 of Act 252 of 1924 has expressly so declared, and the language of this section cannot be construed logically into meaning that this million cubic feet of gas may be allowed when the percentages provided for in Act 91 of 1922 are applied to wells drilled under that act, as under § 2 of Act 91 of 1922 the increase in any particular well may be made only when the safety of such well demands it. It cannot be seriously argued that § 2 of Act 91 of 1922 has been repealed by Act 252 of 1924, when this section as to percentages has been written into § 5 of the Act of 1924 and thereby retained in the later act.

It is clear that there can be no practical classification whatever under the police power of the state based upon mere capacity of gas wells, as this varies in each well when brought in, as well as at different periods of production in the same well. Necessarily, a fixed percentage of the capacity of each well must be made the basis of regulation as to the quantity to be taken.

This is what the Legislature has done under Act 91 of 1922 and Act 252 of 1924.

The percentage of gas to be pulled under Act 91 of 1922 is fixed at not less than 15 per cent. nor more than 20 per cent. of the potential, or open flow, capacity of the well; and an increase is allowed under that act only when the safety of the well requires it.

Under Act 252 of 1924 an entirely different basis of percentage is adopted, as it is predicated upon

acreage, or proportionate ownership of the surface, as to all new wells to be drilled under that act. It is therefore impossible to substitute the percentages of production provided for in Act 91 of 1922 for those provided for in Act 252 of 1924.

It is plain that the owner of a 5-acre tract, or less, may exhaust the gas under an adjoining tract of 160 acres or more. The right of the owner of a small tract to take gas from the common reservoir would be, therefore, out of all proportion to the extent of his ownership, unless restricted.

That acreage, or proportionate ownership of the surface, is a fair and reasonable basis for the computation of the percentage of gas to be taken must be admitted.

Under § 3 of Act 252 of 1924 the owners of 5, 10, 20, 40, 80, and 160 acre tracts are entitled respectively to 9, 12, 15, 18, 21, and 24 per cent. of the open-flow capacity of the well. Ownership of the surface is based under the act upon governmental subdivisions of a section of land and parts thereof. Thus far it is seen that there is no discrimination between members of the same class as to percentage, whether they be owners of old wells under Act 91 of 1922, or owners of new wells under Act 252 of 1924.

The equal protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable

basis, but is essentially arbitrary. Lindsley v. Natural Carbonic Gas Co. 220 U. S. 78, 55 L. ed. 377, 31 Sup. Ct. Rep. 337, Ann. Cas. 1912C, 160; State ex rel. Civello v. New Orleans, 154 La. 271, 33 A.L.R. 260, 97 So. 440.

This burden has not been discharged by defendant company in the case at bar. Defendant company's well was drilled prior to Act 252 of 1924, and is classified as an old well by the state conservation department.

It must be assumed that the Legislature was aware of the average capacity of old gas wells at the time of the passage of Act 252 of 1924. A most natural and excellent reason for excluding such wells from the provision in § 3 of that act as to the 1,000,000 cubic feet is that such provision would not be applicable, as a general rule or regulation, to old gas wells, because of diminution of production caused by long operation.

The impracticability, if not impossibility, of adjusting old gas wells to the same condition as that of new wells is apparent, and must have been well known to the General Assembly of this state at the date of the adoption of Act 252 of 1924. Assuming that the Legislature acted with full knowledge as to the aver

age condition of the production of old gas wells, and for this reason, among others, did not include these wells within the provision in § 3 of Act 252 of 1924 as to 1,000,000 cubic feet of gas, it is unimportant that the old well of defendant company may prove to be an exception in the matter of production, and may be capable of producing 1,000,000 cubic feet of gas, without reducing the back or working pressure of the well below 200 pounds, as the classification made in § 5 of Act 252 of 1924 of old wells and new wells rests upon a reasonable basis, and is not essentially an arbitrary discrimination against defendant company, a member of the old well class. Due process of law and equal protection of the laws are had when laws affect alike all persons similarly situated.

For these reasons, I respectfully dissent from the opinion of the majority of the court as to the holding that defendant company is entitled to claim the 1,000,000 cubic feet of gas in this case, and therefore is not guilty of violating Act 252 of 1924, because said company did not overpull its well to that extent.

I adhere, therefore, to our original decree affirming the conviction of'defendant company in the lower court.

The present annotation is supplemental to that in 24 A.L.R. 307, where the earlier cases may be found.

For constitutionality and construction of statutes for prevention of waste of food products, see annotation in 38 A.L.R. 1196 [Food, § 2]. Constitutionality generally. (Supplementing annotation in 24 A.L.R. 307.)

The police powers of the state extend to the conservation of its natural resources. Quinton Relief Oil & Gas

Co. v. Corporation Commission (1924) 101 Okla. 164, 224 Pac. 156. See also Herkness v. Irion (1926; D. C. E. D. La.) 11 F. (2d) 386; STATE V. THRIFT OIL & GAS Co. (reported herewith) ante, 261; and State v. Consumers' Gas Co. (1926) 162 La. 200, 110 So. 200; State v. Carson Carbon Co. (1926) 162 La. 781, 111 So. 162.

It has been held that no one can acquire a vested right to waste water in any form, since he can acquire no absolute title to water; that the state,

therefore, in its governmental capacity, has a right to regulate, within reasonable bounds, the use of water, although the right to the use may have been adjudicated; and that no constitutional rights are invaded by such inconveniences as necessarily result in administering the law for the protection of all and for the public good. Eden Irrig. Co. v. District Co. (1922) 61 Utah, 103, 211 Pac. 957 (upholding constitutionality of water rights act, as against attacks upon several different grounds).

Wisdom of act providing that any watershed of the state may be created into a river-regulating district is for the legislature, and not for the court. Board of Hudson River Regulating Dist. v. Fonda, J. & G. R. Co. (1926) 127 Misc. 866, 217 N. Y. Supp. 781.

And it has been said that the control of fresh-water streams resides in the state in its sovereign capacity as representative of and for the benefit of the people in common; and that the legislature may, as it sees fit, permit or prohibit the abstraction of such water, except to the extent that it is appropriated to riparian uses. East Jersey Water Co. v. Public Utility Comrs. (1923) 98 N. J. L. 449, 119 Atl. 679, citing McCarter v. Hudson County Water Co. (1905) 70 N. J. Eq. 695, 14 L.R.A. (N.S.) 197, 118 Am. St. Rep. 754, 65 Atl. 489, 10 Ann. Cas. 116.

In Stone v. Kendall (1925) Tex. Civ. App. 268 S. W. 759, wherein motive or purpose of ordinance is not disclosed, an ordinance prohibiting excavation within the municipality for the purpose of removing dirt, gravel, or any natural substance in the soil thereof, was held an arbitrary and unwarranted limitation upon the lawful use and enjoyment of private property, inhibited by due process clause of state Constitution. Application of rules gas and oil. (Supplementing annotation in 24 A.L.R. 312.)

Under the rule that oil and gas under land 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, it has been held that its extraction and use are subject to regulation, or even complete restriction or suppression, by the state. Herkness v. Irion (1926; D. C. E. D. La.) 11 F. (2d) 386. See also Gulf Ref. Co. v. McFarland (1923) 154 La. 251, 97 So. 433 (involving constitutionality of severance tax); State v. THRIFT OIL & GAS Co. (reported herewith) ante, 261, in which constitutionality of particular statute was attacked upon several grounds; and State v. Consumers' Gas Co. (1926) 162 La. 200, 110 So. 200, wherein it was said that the issues were substantially the same; State v. Carson Carbon Co. (1926) 162 La. 781, 111 So. 162, wherein the constitutionality of Louisiana statute providing for the conservation of the natural gas resources of the state was sustained, as against numerous objections, some new and some previously considered.

And see Oxford Oil Co. v. Atlantic Oil & Producing Co. (1926; D. C. N. D. Tex.) 16 F. (2d) 639.

Where the facts show that the use of natural gas for the purpose of manufacturing carbon black constitutes a "wasteful utilization" thereof, the state, whose police powers extend to the conservation of its natural resources, may, through its regularly constituted agencies, prohibit the use of the gas in such manner, in the interest of the public welfare. Quinton Relief Oil & Gas Co. v. Corporation Commission (1924) 101 Okla. 164, 224 Pac. 156 (in which it was further held that statute conferring upon the corporation commission the power to make rules and regulations to prevent the "wasteful utilization" of natural gas, and leaving to that body the power to define what uses are within the scope of that term, is not such a delegation of power to the commission as to render the said act unconstitutional for uncertainty). L. S. E.

corporations operating coal mines in Union county. They each applied to the sheriff of that county before September 1, 1926, and tendered to him their respective taxes, less 2 per cent, which he declined to accept, and these two actions were instituted against him in the Union circuit court, seeking a mandatory order compelling him to do so.

By an amendment, plaintiffs averred that, after the tax commissioner had assessed their property, they discovered that he had mistakenly listed certain articles as personal property when they were fixtures attached to the realty and should have been classified and listed as real estate, upon which the rate of taxation was 30 cents on each $100 valuation, whereas personal property bore a rate of 50 cents on the same valuation. They further alleged that, after making that discovery, they applied to the county court of Union county in the manner provided by § 4250 of the Statutes, and it, after a hearing, transferred such wrongfully or mistakenly listed articles from the class of personal property to that of real property, and such finding was certified by the county court as provided in that section. Plaintiffs, therefore, prayed that defendant be ordered to collect taxes from them only on the total valuation as so corrected by the county court, less 2 per cent.

The sheriff, and the county, and the state tax commissioners, who had intervened, demurred to the petitions as amended, and the court overruled them as to the original petitions, seeking a discount of 2 per cent, but sustained them to the amendments seeking credit by the corrections made by the county court, upon the ground that the wrongful classification of the assessed property by the tax commissioner, if any, was not a "clerical error," and, therefore, the county court had no jurisdiction, under the provisions of § 4250, to make the corrections. Appellants appealed from those judgments and filed com

plete transcripts in this court, and defendants moved for and obtained a cross-appeal in which they complain of the court's ruling in sustaining a demurrer to their amended petitions. The case was tried upon an agreed statement of facts, one of which was: "It is admitted by all parties that on September 1, 1926, the tax bills for Union county had not come to the hands of the appellant Jess Buchanan, sheriff of Union county, said bills not having been made out and completed by the clerk of the county, as provided by law, and that before that date a tender of the amount of the tax bill was made to said sheriff by the appellees, West Kentucky Coal Company and Madison Coal Corporation, and which tender was refused by said appellant." (Our italics.)

Counsel for appellants seriously contend that under the agreed facts the court erred in adjudging plaintiffs entitled to 2 per cent discount, because of the provisions of § 4067 of the 1922 edition of the Statutes, saying: "No sheriff shall receive or receipt for any taxes until a copy of the assessor's books, as approved by the board of supervisors, has been delivered to him by the county clerk, or the list filed in the county clerk's office has been certified to him by the said clerk. For a violation of this section the sheriff shall be fined one hundred dollars ($100) for each offense." (Our italics.)

Their argument is, that under the inserted agreed facts appellant, as sheriff, was forbidden by the lastquoted section to accept the taxes tendered to him when made, and that it was not only illegal for him to do so, but, if done, subjected him to a fine of $100 in each case. The contention, it will be observed (conceding that § 4067 is applicable to the agreed fact), is upon the theory that the neglect of the proper officials to perform their duties will operate to deprive a taxpayer of the benefits to which he is entitled under express statutory provisions as a payer of taxes, but the correctness of which theory we seriously doubt.