Republic Nat. Gas Co. v. Oklahoma
334 U.S. 62 (1948)

Annotate this Case

U.S. Supreme Court

Republic Nat. Gas Co. v. Oklahoma, 334 U.S. 62 (1948)

Republic Natural Gas Co. v. Oklahoma

No. 134

Argued January 6, 1948

Decided May 3, 1948

334 U.S. 62



One of two producers of natural gas in the same Oklahoma field was ordered by the State Commission to take gas "ratably" from, and to connect its pipeline with the well of, the other, on terms and conditions to be agreed upon by the parties or to be fixed by the Commission if the parties were unable to agree. The validity under the Federal Constitution of the order and of the state law which authorized it were sustained by the State Supreme Court, which interpreted the order as giving the respondent the choice of taking and paying for the gas, marketing the gas and accounting therefor, or shutting down its own wells.

Held: the judgment of the State Supreme Court was not "final" within the meaning of § 237 of the Judicial Code, and this Court is therefore without jurisdiction of an appeal therefrom. Pp. 334 U. S. 62-72.

198 Okla. 350, 180 P.2d 1009, appeal dismissed.

An order of the State Corporation Commission of Oklahoma, directing the appellant to take gas ratably from another producer in the same field, was sustained by the State Supreme Court. 198 Okla. 350, 180 P.2d 1009. An appeal to this Court is here dismissed for the want of a "final" judgment p. 334 U. S. 72.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

This is an appeal from a decision of the Supreme Court of Oklahoma, arising from an order of the State

Page 334 U. S. 63

Corporation Commission which concerned the correlative rights of owners of natural gas drawn from a common source.

Since 1913, Oklahoma has regulated the extraction of natural gas, partly to prevent waste and partly to avoid excessive drainage as between producers sharing the same pool. The legislation provided that owners might take from a common source amounts of gas proportionate to the natural flow of their respective wells, but not more than 25% of that natural flow without the consent of the Corporation Commission; that any person taking gas away from a gas field, except for certain specified purposes, "shall take ratably from each owner of the gas in proportion to his interest in said gas;" and that such ratable taking was to be upon terms agreed upon by the various well owners, or, in the event of failure to agree, upon terms fixed by the Corporation Commission. [Footnote 1]

The Hugoton Gas Field is one of the largest in the United States, covering a vast area in several States, including Oklahoma. It was discovered in 1924 or 1925,

Page 334 U. S. 64

but the Oklahoma portion was not developed until 1937. Republic, a Delaware corporation, obtained permission to do business in Oklahoma in 1938, purchased gas leases in this field, and drilled wells, removing the gas in its own pipelines. In 1944, the Peerless Oil and Gas Company completed a well in a portion of the gas field otherwise tapped only by Republic. It had no market for the gas obtained from this well, nor means of transporting such gas to any market. It offered to sell the gas to Republic, which refused it. Peerless then applied to the

Page 334 U. S. 65

Corporation Commission for an order requiring Republic to take such gas from it "ratably" -- that is, to take the same proportion of the natural flow of Peerless' well as Republic took of the natural flow of its own wells. After a hearing, the Commission found that the production of natural gas in the Hugoton field was in excess of the market demand; that Republic had qualified to do business in Oklahoma with full knowledge of the existing legislation requiring the ratable taking of natural gas, and that Republic was taking more than its ratable share

Page 334 U. S. 66

of gas from that portion of the field tapped both by its wells and that belonging to Peerless, thereby draining gas away from Peerless' tract and, in effect, taking property belonging to Peerless. The Commission ordered Republic:

"1. . . . to take gas ratably from applicant's [Peerless'] well . . and to make necessary connection as soon as applicant lays a line connecting said well with respondent's [Republic's] line, and to continue to do so until the further order of this Commission; provided that, applicant shall lay its line from its well to the lines of respondent at some point designated by the respondent, but in said Section 14 in which said well of Peerless Oil and Gas Company has been drilled, and said respondent is required to make said designation immediately and without unreasonable delay, and in event of failure of respondent so to do, respondent shall no longer be permitted to produce any of its wells located in the Hugoton Oklahoma Gas Field."

"2. The terms and conditions of such taking of natural gas by Republic Natural Gas Company from said Peerless Oil and Gas Company's well shall be determined and agreed upon by and between applicant and respondent, and in the event said parties are unable to agree, applicant and respondent are hereby granted the right to make further application to the Commission for an order fixing such terms and conditions, and the Commission retains jurisdiction hereof for said purpose."

On appeal, the Oklahoma Supreme Court affirmed, holding that Republic, having been given leave to enter the State on the basis of the legislation governing natural gas production, might not challenge its validity, and that neither the order nor the legislation on which it is based

Page 334 U. S. 67

runs counter to asserted constitutional rights. 198 Okl. 350, 180 P.2d 1009. The court interpreted the Commission's order as giving Republic

"a choice between taking the gas from Peerless and paying therefor direct, or marketing the gas and accounting to Peerless therefor, or to shut in its own production from the same common source of supply."

198 Okl. at 356, 180 P.2d at 1016. Invoking both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment, Republic appealed to this Court.

This case raises thorny questions concerning the regulation of fugacious minerals of moment both to States whose economy is especially involved and to the private enterprises which develop these natural resources. Cf. Thompson v. Consolidated Gas Utilities Corp.,300 U. S. 55; Railroad Commission of Texas v. Rowan & Nichols Oil Co.,310 U. S. 573, 311 U. S. 311 U.S. 570. Before reaching these constitutional issues, we must determine whether or not we have jurisdiction to do so.

Ever since 1789, Congress has granted this Court the power of review in State litigation only after "the highest court of a State in which a decision in a suit could be had" has rendered a "final judgment or decree." § 237 of the Judicial Code, 28 U.S.C. § 344, rephrasing § 25 of the Act of September 24, 1789, 1 Stat. 73, 85. Designed to avoid the evils of piecemeal review, this reflects a marked characteristic of the federal judicial system, unlike that of some of the States. This prerequisite for the exercise of the appellate powers of this Court is especially pertinent when a constitutional barrier is asserted against a State court's decision on matters peculiarly of local concern. Close observance of this limitation upon the Court is not regard for a strangling technicality. History bears ample testimony that it is an important factor in securing harmonious State-federal relations.

No self-enforcing formula defining when a judgment is "final" can be devised. Tests have been indicated

Page 334 U. S. 68

which are helpful in giving direction and emphasis to decision from case to case. Thus, the requirement of finality has not been met merely because the major issues in a case have been decided and only a few loose ends remain to be tied up -- for example, where liability has been determined and all that needs to be adjudicated is the amount of damages. Bruce v. Tobin,245 U. S. 18; Martinez v. International Banking Corp.,220 U. S. 214, 220 U. S. 223; Mississippi Central R. Co. v. Smith, 295 U.S. 718. On the other hand, if nothing more than a ministerial act remains to be done, such as the entry of a judgment upon a mandate, the decree is regarded as concluding the case, and is immediately reviewable. Board of Commissioners v. Lucas,93 U. S. 108; Mower v. Fletcher,114 U. S. 127.

There have been instances where the Court has entertained an appeal of an order that otherwise might be deemed interlocutory, because the controversy had proceeded to a point where a losing party would be irreparably injured if review were unavailing. Cf. Clark v. Williard,294 U. S. 211; Gumbel v. Pitkin,113 U. S. 545, and compare 47 U. S. Conrad, 6 How. 201, 47 U. S. 204, with 48 U. S. Gibson, 7 How. 650, 48 U. S. 657. For related reasons, an order decreeing immediate transfer of possession of physical property is final for purposes of review even though an accounting for profits is to follow. In such cases, the accounting is deemed a severed controversy, and not part of the main case. Forgay v. Conrad, supra; Carondelet Canal & Navigation Co. v. Louisiana,233 U. S. 362; Radio Station WOW v. Johnson,326 U. S. 120. But a decision that a taking by eminent domain is for a public use, where the amount of compensation has not been determined, is not deemed final, certainly where the property will not change hands until after the award of compensation. Grays Harbor Logging Co. v. Coats-Fordney Logging Co.,243 U. S. 251;

Page 334 U. S. 69

cf. Luxton v. North River Bridge Co.,147 U. S. 337; Catlin v. United States,324 U. S. 229. [Footnote 2] One thing is clear. The considerations that determine finality are not abstractions, but have reference to very real interests -- not merely those of the immediate parties, but, more particularly, those that pertain to the smooth functioning of our judicial system.

On which side of the line, however faint and faltering at times, dividing judgments that were deemed "final" from those found not to be so does the judgment before us fall? The order of the Oklahoma Corporation Commission, as affirmed below, terminates some, but not all, issues in this proceeding. Republic is required to take ratably from Peerless, but it may do so in any one of three ways. If, as is most probable, Republic would choose not to close down its own wells, under the Commission's order, it must allow Peerless to connect its well to Republic's pipeline. But there has been left open for later determination, in event of failure to reach agreement, the terms upon which Republic must take the gas, the rates which it must pay on purchase, or may charge if it sells as agent of Peerless. Does either its alternative character or the fact that it leaves matters still open for determination so qualify the order as to make it short of "final" for present review?

We turn first to the latter point. Certainly what remains to be done cannot be characterized as merely "ministerial." Whether or not the amount of gas to be taken by Republic from Peerless can be ascertained through application of a formula, the determination of the

Page 334 U. S. 70

price to be paid for the gas if purchased, or the fees to be paid to Republic for marketing it if sold on behalf of Peerless, clearly requires the exercise of judgment. [Footnote 3] Nor is there any immediate threat of irreparable damage to Republic, rendering postponed review so illusory as to make the decree "final" now or never. The Commission's order requires Republic to designate a point on its pipeline at which Peerless might attach a line, and, after Peerless had done so, to connect it immediately. But it does not appear that the order requires Republic to commence taking Peerless' gas before the terms of taking have either been agreed upon or ordered by the Commission. Nor does it appear that Republic would have to bear the expense of connecting the pipeline, nor that such expense would be substantial. Indeed, the incurring of some loss, before a process preliminary to review here is exhausted, is not, in itself, sufficient to authorize our intervention. Cf. Myers v. Bethlehem Shipbuilding Corp.,303 U. S. 41, 303 U. S. 50-52. But even if the Commission's order were construed to require Republic to take and dispose of Peerless' gas immediately -- and we are not so advised by the State Court -- there is no ground for assuming that any loss that Republic might incur could not be recovered should the completed direction of the Oklahoma Commission, on affirmance by that State's Supreme Court, ultimately be found to be unconstitutional. Merely because a party to a litigation may be temporarily out of pocket is not sufficient to warrant immediate review of an incomplete State judgment. Appellant, of course, has the burden of

Page 334 U. S. 71

affirmatively establishing this Court's jurisdiction. Memphis Natural Gas Co. v. Beeler,315 U. S. 649, 315 U. S. 651. The policy against premature constitutional adjudications demands that any doubts in maintaining this burden be resolved against jurisdiction. See citation of cases in the concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority,297 U. S. 288, 297 U. S. 341, 297 U. S. 345, 297 U. S. 348.

The condemnation precedents attract this case more persuasively than do the accounting cases. Where it is claimed that a decree transferring property overrides an asserted federal right, as in Forgay v. Conrad, supra, and Radio Station WOW v. Johnson, supra, no disposition of the subsequent accounting proceeding can possibly make up for the defeated party's loss, since the party who has lost the property must also pay to his opponent what the accounting decrees. Hence, his desire to appeal the issue of the right to the property will almost certainly persist. On the other hand, in an eminent domain case, as in a case like this, the fate of the whole litigation may well be affected by the fate of the unresolved contingencies of the litigation. An adequate award in an eminent domain case or a profitable rate in the case before us might well satisfy the losing party to acquiesce in the disposition of the earlier issue. It is, of course, not our province to discourage appeals. But, for the soundest of reasons, we ought not to pass on constitutional issues before they have reached a definitive stop. Another similarity between this case and the condemnation cases calls for abstention until what is organically one litigation has been concluded in the State. It is that the matters left open may generate additional federal questions. This brings into vivid relevance the policy against fragmentary review. In accounting cases, that which still remains to be litigated can scarcely give rise to new federal questions.

Page 334 U. S. 72

The policy against fragmentary review has therefore little bearing. But contests over valuation in eminent domain cases, as price-fixing in this type of case, are inherently provocative of constitutional claims. This potentiality of additional federal questions arising out of the same controversy has led this Court to find want of the necessary finality of adjudicated constitutional issues in condemnation decrees before valuation has been made. Like considerations are relevant here.

In short, the guiding considerations for determining whether the decree of the court below possesses requisite finality lead to the conclusion that this case must await its culmination in the judicial process of the State before we can assume jurisdiction. "Only one branch of the case has been finally disposed of below; therefore, none of it is ripe for review by this court." Collins v. Miller,252 U. S. 364, 252 U. S. 371. This makes it unnecessary to consider whether the mere fact that the decree gave alternative commands precluded it from being final. Cf. Paducah v. East Tennessee Tel.Co.,229 U. S. 476; Jones' Adm'r v. Craig,127 U. S. 213; Note, 48 Harv.L.Rev. 302, 305-306. Since the judgment now appealed from lacks the necessary finality, we cannot consider the merits. All of Republic's constitutional objections are, of course, saved.

Appeal dismissed.

[Footnote 1]

L.1913, c.198, §§ 1-3, Okl.Stat. 1941, tit. 52, §§ 231-33:

"Section 1. All natural gas under the surface of any land in this state is hereby declared to be and is the property of the owners, or gas lessees, of the surface under which gas is located in its original state."

"Section 2. Any owner or oil and gas lessee, of the surface, having the right to drill for gas, shall have the right to sink a well to the natural gas underneath the same and to take gas therefrom until the gas under such surface is exhausted. In case other parties, having the right to drill into the common reservoir of gas, drill a well or wells into the same, then the amount of gas each owner may take therefrom shall be proportionate to the natural flow of his well or wells to the natural flow of the well or wells of such other owners of the same common source of supply of gas, such natural flow to be determined by any standard measurement at the beginning of each calendar month; provided that not more than twenty-five percent of the natural flow of any well shall be taken, unless for good cause shown, and upon notice and hearing the Corporation Commission may, by proper order, permit the taking of a greater amount. The drilling of a gas well or wells by any owner or lessee of the surface shall be regarded as reducing to possession his share of such gas as is shown by his well."

"Section 3. Any person, firm or corporation, taking gas from a gas field, except for purposes of developing a gas or oil field, and operating oil wells, and for the purpose of his own domestic use, shall take ratably from each owner of the gas in proportion to his interest in said gas, upon such terms as may be agreed upon between said owners and the party taking such, or in case they cannot agree at such a price and upon such terms as may be fixed by the Corporation Commission after notice and hearing; provided, that each owner shall be required to deliver his gas to a common point of delivery on or adjacent to the surface overlying such gas. . . ."

See also L.1915, c.197, §§ 4, 5, Okl.Stat. 1941, tit. 52, §§ 239, 240:

"Section 4. That whenever the full production from any common source of supply of natural gas in this state is in excess of the market demands, then any person, firm, or corporation having the right to drill into and produce gas from any such common source of supply may take therefrom only such proportion of the natural gas that may be marketed without waste, as the natural flow of the well or wells owned or controlled by any such person, firm or corporation bears to the total natural flow of such common source of supply having due regard to the acreage drained by each well, so as to prevent any such person, firm or corporation securing any unfair proportion of the gas therefrom; provided, that the Corporation Commission may, by proper order, permit the taking of a greater amount whenever it shall deem such taking reasonable or equitable. The said commission is authorized and directed to prescribe rules and regulations for the determination of the natural flow of any such well or wells, and to regulate the taking of natural gas from any or all such common sources of supply within the state, so as to prevent waste, protect the interests of the public, and of all those having a right to produce therefrom, and to prevent unreasonable discrimination in favor of any one such common source of supply as against another."

"Section 5. That every person, firm or corporation now or hereafter engaged in the business of purchasing and selling natural gas in this state shall be a common purchaser thereof, and shall purchase all of the natural gas which may be offered for sale, and which may reasonably be reached by its trunk lines or gathering lines without discrimination in favor of one producer as against another, or in favor of any one source of supply as against another save as authorized by the Corporation Commission after due notice and hearing; but if any such person, firm or corporation, shall be unable to purchase all the gas so offered, then it shall purchase natural gas from each producer ratably. It shall be unlawful for any such common purchaser to discriminate between like grades and pressures of natural gas, or in favor of its own production, or of production in which it may be directly or indirectly interested, either in whole or in part, but for the purpose of prorating the natural gas to be marketed, such production shall be treated in like manner as that of any other producer or person, and shall be taken only in the ratable proportion that such production bears to the total production available for marketing. The Corporation Commission shall have authority to make regulations for the delivery, metering, and equitable purchasing and taking of all such gas, and shall have authority to relieve any such common purchaser, after due notice and hearing, from the duty of purchasing gas of an inferior quality or grade."

[Footnote 2]

In the Catlin case, our decision was based on the general rule that condemnation orders prior to determination of just compensation are not appealable. The wartime statutes there involved were urged by the claimants as a reason for not applying the general rule. We rejected this contention.

[Footnote 3]

This case is unlike those in which a rate had been fixed, subject to a continuing jurisdiction to modify it later. Cf. Market Street R. Co. v. Railroad Commission,324 U. S. 548; St. Louis, Iron Mountain & Southern R. Co. v. Southern Express Co.,108 U. S. 24. Here, no rates have been set, and their future establishment has been left open.

MR. JUSTICE DOUGLAS, concurring.

The judgment of the Oklahoma court is not "final" merely because it establishes that Republic has no right to drain away the Peerless gas without paying for it. I think it would be conceded that, even so, the judgment would not be "final" if it offered appellant three alternative ways to comply and there were doubts as to the constitutionality of any one of them. Then we would wait

Page 334 U. S. 73

to see which of the alternatives was ultimately selected or imposed before reviewing the constitutionality of any of them. But there would be no more reason to defer decision on the merits in that case than in this. For the constitutional questions would be isolated in each, and we would be as uncertain in one as in the other which of the alternatives would actually apply to appellant. And the principle seems to me to be the same even when a majority of us would sustain the order whatever alternative was chosen as its sanction.

There is, of course, in the one case, the chance of saving the order only if one remedy rather than another is chosen, while, in the other, the order would survive whichever was chosen. But, in each, we would be giving needless constitutional dissertations on some points. That is nonetheless true in a case where the constitutional questions seem to a majority of us simple, uncomplicated, and of no great dignity. For the single constitutional question necessary for decision will not be isolated until the precise pinch of the order on the appellant is known. It will not be known in the present case at least until appellant elects or is required (1) to shut down, (2) to become a carrier of the Peerless gas, or (3) to purchase it.

The legal, as well as the economic, relationship which Republic will bear to Peerless will vary as one or another choice is made. To make Republic a "carrier" is to submit it to different business risks than to make it a "purchaser." The fact that each would raise only questions of "due process" under the Fourteenth Amendment does not mean that the questions are identical. Even when reasonableness is the test, judges have developed great contrariety of opinions. The point is that, today, the variables are presented only in the abstract. Tomorrow, the facts will be known, when the precise impact of the order on appellant will be determined. Thus, to me, the

Page 334 U. S. 74

policy against premature constitutional adjudication precludes us from saying the judgment in the present case is "final."


I think the Oklahoma Supreme Court's judgment is final for the purposes of § 237 of the Judicial Code, 28 U.S.C. § 344, that the state commission's order is valid, and that deferring decision on the merits to some indefinite future time will only prolong an already lengthy litigation unnecessarily, and with possible irreparable harm to one party or the other.

Appellant, Republic Natural Gas Company, has operated gas wells in the Hugoton Gas Field for many years. It was the first major producer to exploit the Oklahoma portion of the field, [Footnote 2/1] having constructed its own gathering system and pipelines extending from Oklahoma into Kansas. With only minor exceptions, Republic has never carried any but its own gas in its pipelines. [Footnote 2/2] 198 Okl. at 352, 180 P.2d 1009.

In 1944 appellee, Peerless Company, completed its only well in Oklahoma, in the Hugoton field. This well is not connected to any pipeline. It therefore presently lies dormant. Surrounding Republic wells drilled into the same reservoir concededly are draining gas constantly from under the Peerless land. [Footnote 2/3] Except for the part of

Page 334 U. S. 75

Republic's gathering system which runs across the Peerless land, no market outlet that would take sufficient gas to justify production of the Peerless well is close enough to make it financially practical for Peerless to construct its own pipeline. It is undisputed that the only feasible method of producing the well is to require Republic to take Peerless gas into its gathering system. [Footnote 2/4]

For this reason, Peerless applied to the Oklahoma Corporate Commission for an order compelling Republic to connect its pipeline to the Peerless well and to purchase gas from Peerless at a price to be fixed by the commission. After hearing, the commission concluded that the applicable Oklahoma statutes [Footnote 2/5] required it to enforce ratable taking and ratable production of gas as between Republic and Peerless.

The commission recognized alternative methods of protecting Peerless from loss due to drainage, first by ordering

Page 334 U. S. 76

all wells in the area to shut down completely, and second by ordering Republic to purchase from Peerless. Since the first method was considered harsh, the second was preferred. Accordingly, the commission issued an order requiring Republic to take gas ratably from the Peerless well as soon as the necessary connection could be made, allowing it, however, the alternative of closing down all of its wells in the Oklahoma portion of the field if it preferred this to taking the Peerless gas. The terms and conditions of the taking were to be determined by the parties, but, in the event of failure to agree, they were "granted the right to make further application to the Commission for an order fixing such terms and conditions. . . ." [Footnote 2/6] The taking, however, was not to await this agreement or further order; it was to begin at once. [Footnote 2/7]

Page 334 U. S. 77

Affirming the order, the Supreme Court of Oklahoma construed the state statutes to authorize the administrative action. 198 Okl. 350, 180 P.2d 1009. The case thus presents on the merits the question whether a state, as a means of adjusting private correlative rights in a common reservoir, has the power in such circumstances as these to compel one private producer to share his market with another when otherwise his production would drain off that other's ratable share of the gas in place, and thus appropriate it to himself.


The majority consider that the proceedings in the state tribunals have not terminated in a final judgment from which appeal to this Court lies, and therefore refuse to adjudicate this question.

In the strictest sense, the state proceedings will not be completed until the parties have agreed upon the terms and conditions of Republic's taking of gas from Peerless or, if they do not agree, until the commission has issued an additional order fixing those terms. Since it is not certain that the parties will agree, the possibility remains that a further order may be required before all phases of the controversy are disposed of. It is this possibility, as I think, a remote one, which furnishes one of the grounds for concluding that the Oklahoma court's judgment is not final within the meaning and policy of § 237.

The fact that all phases of the litigation are not concluded does not necessarily defeat our jurisdiction. This is true although, as recently as Gospel Army v. Los Angeles,331 U. S. 543, we reiterated that, for a judgment to be final and reviewable under § 237,

"it must end the litigation by fully determining the rights of the parties, so that nothing remains to be done by the trial court 'except the ministerial act of entering the judgment which the

Page 334 U. S. 78

appellate court . . . directed.'"

331 U.S. at 331 U. S. 546. This is the general rule, grounded in a variety of considerations reflected in the statutory command [Footnote 2/8] and coming down to the sum that, in exercising the jurisdiction conferred by § 237, this Court is not to be concerned with reviewing inconclusive, piecemeal, or repetitious determinations. The Gospel Army case represents a typical instance for applying the terms and the policy of § 237. [Footnote 2/9] But not every decision by a state court of last resort leaving the controversy open to further proceedings and orders is either inconclusive of the issues or premature for purposes of review under § 237. This appears most recently from the decision in Radio Station WOW v. Johnson,326 U. S. 120, which applied a settled line of authorities to that effect. Cf. Richfield Oil Corp. v. State Board of Equalization,329 U. S. 69.

In such cases, the formulation of the test of finality made in the Gospel Army and like decisions has not been followed. Instead, that question, in the special circumstances, has been treated as posing essentially a practical problem, not one to be determined either by the label attached to the state court judgment by local law, Richfield Oil Corp. v. State Board of Equalization, supra, or by the merely mechanical inquiry whether some further order or proceeding beyond "the ministerial act of entering the judgment" may be had or necessary after our decision is rendered. Radio Station WOW v. Johnson, supra, at 326 U. S. 125.

The WOW opinion noted that the typical case for applying the broader, less mechanical approach to the

Page 334 U. S. 79

question of finality had involved judgments directing the immediate delivery of property, to be followed by an accounting decreed in the same order. It stated, with reference to these and like situations:

"In effect, such a controversy is a multiple litigation allowing review of the adjudication which is concluded because it is independent of, and unaffected by, another litigation with which it happens to be entangled."

326 U.S. at 326 U. S. 126. Accordingly, since the two phases of the controversy were separate and distinct, we exercised our jurisdiction to determine the federal questions involved in the phase concluded by the state court's decision. This was done although the judgment required further and possibly extensive judicial proceedings before the other and separable phase of the accounting could reach a final determination. [Footnote 2/10] Those further proceedings involved very much more than "ministerial acts;" indeed, the determination of a complicated accounting requires the highest order of judicial discretion.

Notwithstanding this, and despite the want of strict finality, jurisdiction was sustained because a number of factors were felt to require that action in order to give effect to the policy of § 237 providing for review, rather than to a merely mechanical application of its terms for denying review.

There was nothing tentative or inconclusive about the Nebraska court's judgment for immediate delivery of the property. Nor was it necessary to execution of that phase of the judgment to have contemporaneous conclusion

Page 334 U. S. 80

of the accounting phase. Except for the latter, the judgment was ripe for review. Indeed, immediate execution without review of the federal questions affecting the delivery phase until after the accounting had been completed, offered the possibility of irreparable harm to one or possibly both of the parties. This factor obviously tended to make later full review partly or wholly futile. Moreover, until the delivery phase had been settled, it could not be known whether the accounting would be necessary, for that need was consequentially incident to, and dependent upon, determination of the core of the litigation, which was the right to delivery.

In these circumstances, it was rightly considered more consistent with the intent and purpose of § 237 to allow immediate review, notwithstanding the possibility of a later further review in the accounting phase, than to deny review with the chance that a later one might not fully save the parties' rights. The section's policy to furnish full, adequate, and prompt review outweighed any design to secure absolute and literal "finality."

In all these respects, this case presents a parallel to the WOW case too close, in my opinion, for distinguishing between them. Republic is not directed to negotiate terms and, on completing the negotiation, to make its facilities available to Peerless. It is ordered to make a connection with Peerless and to begin carrying gas at once. That phase of the order, like the delivery phase in the accounting cases, does not await the fixing of the terms whether by agreement or by further order. [Footnote 2/11] It is a present obligation, effective immediately and without qualification. [Footnote 2/12] See Knox Loan Assn. v. Phillips,300 U. S. 194, 300 U. S. 198.

Page 334 U. S. 81

Moreover, there is nothing tentative or inconclusive about this phase of the order or the state judgment sustaining it. That phase not only is separable from the matter of fixing the terms; like the order for delivery in the WOW case, it is the main core of the controversy to which the aspect of fixing terms is both consequential and incidental. The WOW order required immediate delivery of property, with consequent possibility of irreparable harm. Here, the order required immediate acceptance of delivery, with similar possibility of injury for one party or the other. [Footnote 2/13]

Neither is there greater likelihood of piecemeal consideration of constitutional and other questions than in the WOW case. Cf. 326 U.S. at 326 U. S. 127. The matter of fixing terms here hardly can be more difficult practically or more complex legally than making the accounting in the WOW case. [Footnote 2/14] It is hard also to see how one would be either more or less likely to throw up new constitutional issues than

Page 334 U. S. 82

the other. Nor can the WOW case be taken to rule that this Court could not or would not consider constitutional issues arising on the accounting phase, unlikely though the necessity for its doing so may have been. There is thus a substantially complete parallel between the situation now presented and that in the WOW line of cases.

In one respect, this case is stronger for finding appealable finality. For here, no further order may be necessary or made, since present resolution of the basic constitutional problem in all probability will end the entire controversy. That certainly would be the result if the decision should go against Peerless, or if Republic should elect to shut down production. And if the decision should be in Peerless' favor, it is hardly likely that the parties will be unable to agree upon terms since, in case of failure to agree, the commission will prescribe them. [Footnote 2/15] The case, indeed, is not basically a controversy over terms at all. They present only a contingent, collateral matter. What is fundamentally at stake is the right of Republic to take the gas from beneath Peerless' land and market it without paying Peerless for it. Once that question is finally determined, as it can be only by this Court's decision of the constitutional question, the need for a further order will become highly improbable.

This case, therefore, is one in which the need for further proceedings may never arise, and almost certainly would not do so if the constitutional question were now determined. Indeed, in a closer factual application that the WOW case, it presents in the jurisdictional aspect an almost exact parallel to the order reviewed in Pierce Oil Corp. v. Phoenix Refining Co.,259 U. S. 125, where the Oklahoma commission required the appellant to carry oil for the appellee at unspecified rates. Cf. 269 U. S. S. 83

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