1. As applied to the facts of this case, the statute of Wyoming
which prohibits, as wasteful, the burning and consumption of
natural gas for its products without fully and actually applying
and utilizing its heat for other manufacturing or domestic
purposes, and which forbids owners or lessees of gas wells to sell
or dispose of such gas for the manufacture of carbon or other
resultant products in the making of which its heat is not so
utilized for other manufacturing or domestic purposes, and which
limits the prohibition to cases where the gas wells or sources of
supply are within ten miles of any incorporated town or industrial
plant, and penalizes infractions as misdemeanors, is a legitimate
exercise of the police power, and is not constitutionally
objectionable as taking property without due process or as an
unreasonable or arbitrary discrimination. Pp.
254 U. S. 313
et seq.
2. So
held where it was objected that enforcement of
the statute would destroy a heavy investment in a plant for the
manufacture of carbon black, a substance of great utility, the
value of which, with that of the gasoline also produced in the
process, was claimed to exceed any other value obtainable from a
like quantity of gas, and the manufacture of which, it was claimed,
would be impracticable if the heat from the gas must be utilized as
the statute prescribed.
Id.
3. The statute seeks merely to prevent the selection of products
the
Page 254 U. S. 301
production of which will tend to the rapid exhaustion of the gas
supply, and it is not to be construed a demanding that the heat be
utilized further than natural laws and existing instrumentalities
allow. P.
254 U. S. 325.
4. Owing to the fact that natural gas has no fixed
situs in the earth, but moves from place to place,
possession of land is not possession of the gas within it, and the
landowner does not gain an absolute property in the gas until he
has captures it. P.
254 U. S.
316.
5. From this also it result that a state may interpose it police
power to prevent a waste or disproportionate use of the gas by a
particular landowner in order to protect the equal right of other
owners and to conserve the gas as a resource of the state. Pp.
254 U. S.
316-319, 323.
Ohio Oil Co. v. Indiana,
177 U. S. 190.
6. In confining its application to cases where the source of the
gas is within ten mile of an incorporated town or industrial plant,
the Wyoming statute is within the limits of classification
permissible under the equal protection clause of the Fourteenth
Amendment. Pp.
254 U. S. 314,
254 U. S. 324.
Bacon v. Walker, 204 U. S. 311.
7. The validity of the regulation cannot depend upon the
relative values or importance of the industries favorably and
unfavorably affected by it, or their relations to the welfare of
the state, these being matters for the judgment of the state
legislature. P.
254 U. S.
322.
8. The fact that plaintiffs' products -- carbon black and
gasoline -- may be sold for more than the gas consumed in making
them would bring for fuel purposes is not a ground for denying the
state the power to prevent the disproportionate use and rapid
depletion of the natural gas supply involved in the process.
Id.
Reversed.
The case is stated in the opinion.
Page 254 U. S. 309
MR. JUSTICE McKENNA delivered the opinion of the Court.
The complainants are corporations of Delaware, and have their
places of business in that state.
The defendants are officers of Wyoming, being, respectively, its
Attorney General, prosecuting officer of Big Horn County, and the
Governor of the state.
It is alleged that jurisdiction of the district court depends
upon diversity of citizenship and the Constitution of the United
States, the Constitution being violated by an act of the
legislature of the state. Chapter 125 of the Session Laws of
1919.
The object of the suit is to restrain defendants, and each of
them, from enforcing or attempting to enforce the legislation.
It is declared by the act which is attacked that its purpose is
"the conservation of natural gas." The first section is as
follows:
"The use, consumption, or burning of natural gas taken or drawn
from any natural gas well or wells or borings from which natural
gas is produced for the products where such natural gas is burned,
consumed, or otherwise wasted without the heat therein contained
being fully and actually applied and utilized for other
manufacturing purposes or domestic purposes is hereby declared to
be a wasteful and extravagant use of natural gas, and shall be
unlawful when such gas well or source of supply is located within
ten miles of any incorporated town or industrial plant."
Section 2 prohibits the use, sale, or other distribution of
Page 254 U. S. 310
natural gas, the product of any well owned, leased, or managed
by any person for the purpose of manufacturing or producing carbon
or other resultant products from the burning or consumption of such
gas, without the heat therein being fully and actually utilized for
other manufacturing purposes or domestic purposes. Violations are
made misdemeanors.
The grounds of contention against the act are set forth in very
voluminous pleadings, supplemented by a number of affidavits. But
only a brief summary of them is necessary to present the question
involved, which is, stated broadly, that the act transcends the
police power of the state, its purpose and effect being not to
regulate and conserve natural gas, but to prohibit its use and make
a discrimination between owners having equal rights, and thereby
violates Article I, ยง 10, of the Constitution, and the Fourteenth
Amendment thereof.
Prior to the enactment of the statute, the Midland Company had
erected a factory for the manufacture of carbon black, which
factory is located about 1 1/2 miles from the Town of Cowley, Big
Horn County, at an expenditure of $375,000. It is equipped for the
manufacture of such carbon black, and can be used for no other
purpose, and there is produced from it approximately 13,000 pounds
of that article daily, which is sufficient for the manufacture of
117,000 pounds of printing ink. From the gas consumed to make the
carbon black, there is first extracted approximately 1,600 gallons
per day of high-gravity gasoline.
The uses of carbon black are enumerated, and it is alleged that
no form of it possessing the same properties and the wide variety
of uses can be commercially manufactured from any material or
substance other than natural gas.
The origin of the industry and the uses of its product are
variously detailed, and it is alleged that the company's
Page 254 U. S. 311
factory is so conducted as to permit no waste, that the best
known processes and appliances are employed, and that the operation
of the gasoline absorption plant and the recovery of gasoline from
the gas supplied by the wells would be impossible if the carbon
plant should cease to be operated, for the reason that the gas
cannot be sold to other users in that locality in sufficient
quantities to render the extraction of gasoline therefrom
commercially profitable.
The Occidental Oil & Gas Company owns the land upon which
are located the gas wells constituting the principal source of
supply to the plant and carbon factory of the Midland Company. It,
the Occidental Oil & Gas Company, also constructed, owns, and
operates the pipeline by which the gas is conveyed to the factory,
and delivers it to the factory, receiving from the Eastern Fuel
Company, which owns and operates the gasoline extraction plant, a
royalty of one-half of the gasoline extracted therefrom. The Oil
Company also owns mineral leases covering 1,200 acres of proved gas
territory within 10 miles of Cowley. Its business is an integral
and inseparable part of that of the Midland Carbon Company, and all
of its investments have been made in view of the carbon
business.
In the construction of its pipeline, it expended $65,000, and in
the purchase of lands upon which the wells are located, a sum
exceeding $30,000. Other gas lands are alleged to have been
purchased and leased prior to the enactment of the law.
There are other allegations asserting the use of the gas and its
products, and that such use is not a waste of the gas. Various ways
in which the law violates complainants' rights under the
Constitution of the United States are detailed; that, under the
guise of regulation, the restrictions of the act are so framed as
to abolish, ruin, and destroy complainants' business while leaving
it open to others to engage in carbon manufacture, without saving
the gasoline;
Page 254 U. S. 312
that the penalties imposed by the act are harsh, unreasonable,
and confiscatory, and that a dispute of its legality would impose a
penalty of $1,000 for each separate daily violation of it. Other
injuries are alleged.
As already said, affidavits made by representatives of various
trades and industries, displaying the qualities of carbon black and
its uses, are attached to the bill. Other affidavits express the
detriment, in the opinion of the affiants, of any restriction or
regulation of the production of it, and others, from asserted
experts, exhibit the source of the gas and the process of
manufacture from it of carbon black, and that, in its manufacture,
heat is necessarily evolved, but that, as soon as any attempt is
made to transform the heat into any other form of energy, such as
light or mechanical power, an enormous, but inevitable, loss of
heat results.
An injunction is prayed, interlocutory and permanent,
restraining defendants from enforcing the act.
Upon the bill (it is verified), exhibits, and affidavits, it was
ordered that the application for interlocutory injunction be heard
by three judges, and that, in the meanwhile, a temporary
restraining order be granted upon filing a bond in the sum of
$1,000.
The answer, in its admissions, denials, and independent
averments, asserts waste of the gas by complainants' gas factory
and processes, the depletion of the wells and their product, from
which it is estimated that, within three years, all of the wells
will have been utterly and completely depleted, and the depletion
will relate not only to the wells furnishing gas for the
manufacture of carbon black, but will likewise relate to the entire
region and vicinity.
And it is alleged that, by preventing the use of the gas for the
manufacture of carbon black, the Towns of Lovell and Cowley and all
industrial plants therein will be afforded a supply of gas for all
domestic and industrial purposes for a period of 30 years.
Page 254 U. S. 313
The vice attributed to the act by complainants is denied, and a
benefit and virtue asserted for it.
It is prayed that the bill be dismissed, and the restraining
order be dissolved. The answer is verified.
A motion to dissolve the temporary restraining order was made,
which was supported by affidavits, and opposed by others.
The affidavits are too long to quote. Those on the part of
defendants represent the interest of the City of Lovell and other
towns, and the necessity to their industries, if there are to be
any, of a natural gas from the wells with which this case is
concerned, and represent a depletion of the gas supply by the use
made of the gas by complainants. Figures are given. Particulars are
stated in one affidavit, and, for a review of what are deemed the
important tests and elements of judgment of the conditions which
existed and would succeed the present practice, it is said:
"In conclusion, assuming that the present consumption of gas
from this sand is 15,000,000 cubic feet per day (as I have been
reliably informed), and that the decrease in pressure for the last
year has been 150 pounds, and knowing that the present pressure is
approximately 200 pounds, it is a simple problem in mathematics to
ascertain the future life of the field. In other words, at the
present rate of decrease in pressure, the field will be exhausted
in 16 months, and there will be no pressure to force the gas out of
the sand. On the same basis of reasoning, there are approximately
1,200,000,000 cubic feet left in the sand, and the present
consumption is 5,500,000,000 cubic feet per year."
The court sustained the application for temporary
injunction.
The question in the case is, as we have said, whether the
legislation of Wyoming is a valid exercise of the police power of
the state, and brings into comparison the limits of the power as
against the asserted rights of property,
Page 254 U. S. 314
whether it, the legislation, is a legal conservation of the
natural resources of the state or an arbitrary interference with
private rights. Contentions of this kind have been before this
Court in other cases, and their discussions and decisions have
materiality here. We mean not discussions or decisions on the
police power in the abstract or generality, but discussions and
decisions involving conditions and principles pertinent to the
present case.
It will be observed that the act under review does not prohibit
the use of natural gas absolutely. It prohibits, or, to use its
words, declares it to be a
"wasteful and extravagant use of the gas when it is burned or
consumed without the heat therein contained being fully and
actually applied and utilized for either manufacturing or domestic
purposes."
But, not even that unlimitedly, but only when the "gas well or
source of supply is located within 10 miles of any incorporated
town or industrial plant." Such is the prohibition upon the user or
consumer. There is a prohibition upon the owner or lessee of wells
within the designated distance from a town or industrial plant to
sell or dispose of the gas, except under the specified conditions,
"for the purpose of manufacturing carbon or other resultant
products."
There are two elements, therefore, to be considered: (1) the
distance of the wells from an incorporated town or industrial
plant; (2) the element of heat utilization for manufacturing or
domestic purposes. These elements are the determining ones in the
accusations against the law. The first is the basis of the
discrimination charged against it; the second is the basis of the
charge that the law deprives the companies of their property by the
ruin of their business and capital investments, and impairs the
obligations of preexisting contracts.
In
Bacon v. Walker, 204 U. S. 314,
a statute of Idaho was considered which made it unlawful, with
consequent liability to damages,
"for any person owning or having
Page 254 U. S. 315
charge of sheep to herd the same, or permit them to be herded on
the land or possessory claims of other persons, or to herd the same
or permit them to graze within two miles of the dwelling house of
the owner or owners of said possessory claim."
The statute was sustained as a lawful exercise of the police
power of the state against the assertion of the right of one
citizen to use the public domain as much as another citizen, and
that to impose damages upon him for the exercise of the right
deprived him of his property without due process of law, and
besides arbitrarily discriminated between sheep grazing and the
grazing of other kinds of stock. We there said in substance that,
the power of regulation existing, the imposition of some limit to a
right, when its exercise would impinge upon the equal right of
another, was the exercise of legislative power, and that the
circumstances which induced it could not be pronounced illegal "on
surmise or on the barren letter of the statute." And we said
further that, where equal rights existed, the state has an interest
in their accommodation. Pertinent cases were cited, and the
exclusion from grazing within two miles of the possessory claim of
another was decided to be legal, that "the selection of some limit
is a legislative power," and that it was "only against the abuse of
the power, if at all, that the courts could interpose." The mere
distance expressed nothing.
The case, and those it cites, are authority for the position
that a state may consider the relation of rights and accommodate
their coexistence, and, in the interest of the community, limit one
that others may be enjoyed. Of this,
Ohio Oil Co. v.
Indiana, 177 U. S. 190, is
especially illustrative and pertinent, and conducts naturally to
the consideration of the second proposition -- that is, to the
element of heat utilization.
The suit was by the state, and was based upon a statute which
was directed against and prohibited one having
Page 254 U. S. 316
possession or control of any natural gas or oil well to permit
the flow of gas or oil from any such well to escape into the open
air for a longer period than two days after the gas or oil had been
struck. From the standpoint of the law, to do so was a waste of
gas. A right against the statute was set up, based upon the
asserted or implied postulate that the owner of the land owned all
beneath the surface and all that could be brought to the surface
within the lines of the land. The postulate was rejected upon the
ground of the nature of the gas, the capability of its flow from
place to place, the common right to domestic and industrial use of
it, and the power of the state to regulate and conserve such
right.
The Oil Company contended, as owner of the land (it was the
lessee) and producer of the oil, that it had expended many
thousands of dollars in purchasing and equipping machinery for the
sole purpose of raising and producing oil, it not being engaged in
producing or transporting natural gas, and that it used the gas as
"power, force, and agency" to raise the oil to the surface of the
ground, and that such was "the usual, natural, and ordinary method
of saving oil in such cases," and further, that no machinery or
process of any kind had been devised by which the oil could be
produced and saved otherwise, and by forbidding it, the company's
business would be destroyed and the state deprived of the use and
profits of the oil which was of vastly more value than the gas, and
it was asserted that no more gas was permitted to escape than was
consistent with the due operation of the well with the highest
skill. It was hence urged against the act that it deprived of
property without due process of law and denied to the Oil Company
the equal protection of the laws. The answer was adjudged by the
supreme court of the state not to constitute a defense. The
adjudication was sustained by this Court. We said, citing a case,
"possession of the land is not necessarily possession
Page 254 U. S. 317
of the gas," and again, on the authority of cases, "that the
property of the owner of lands in oil and gas is not absolute until
it is actually in his grasp, and brought to the surface." It was
decided, however, that before that event occurs, indeed in
prevention of it, the state may interpose its power to prevent a
waste or disproportionate use of either oil or gas by a particular
owner, in order to conserve the equal right of other owners and
advance the public interest, and in support of this power of
regulation, a similarity between natural gas and other subsurface
minerals was rejected. "True it is," it was said,
"oil and gas, like other minerals, are situated beneath the
surface of the earth; but, except for this point of similarity, in
many other respects, they greatly differ. They have no fixed situs
under a particular portion of the earth's surface within the area
where they obtain. They have the power, as it were, of
self-transmission."
Necessarily, therefore, it was adjudged that their use by one
owner of the surface affected the use of other owners, and an
excessive use by one diminished the use by others, and a similarity
of other minerals, as we have seen, was rejected, and the analogy
between oil and gas and animals
ferae naturae was
declared. It was hence decided that the power of the state
"can be manifested for the purpose of protecting all the
collective owners, by securing a just distribution to arise from
the enjoyment by them of their privilege to reduce to possession,
and to reach the like end by preventing waste."
To the contention that oil could not be taken at a profit by one
who made no use of the gas, it was replied that such fact "went not
to the power to make regulations, but to their wisdom." And this
can be said of the contention, in the case at bar, that one element
is more valuable than another; that carbon black is more valuable
than the gas from which it is extracted.
It will be observed that the basic principle of the Indiana
statute is the same as the basic principle of the
Page 254 U. S. 318
Wyoming statute -- that is, the power of regulation dependent
upon the natures of oil and gas, and that the absolute dominion of
the surface of the land is not an unlimited dominion over them.
The case was cited in
Lindsley v. Natural Carbonic Gas
Co., 220 U. S. 61, to
defeat a suit brought to restrain the officers of the State of New
York from enforcing against the gas company a statute which made it
unlawful to pump from wells or otherwise draw by artificial
appliances that class of mineral waters holding in solution
carbonic acid gas, or producing an unnatural flow of such gas
"for the purpose of extracting, collecting, compressing,
liquefying, or vending such gas as a commodity otherwise than in
conjunction with the mineral water and the other mineral
ingredients with which it was associated."
The company alleged that the gas could be lifted to the surface
only by means of pumps or other artificial appliances, and that
many other landowners in Saratoga Springs had like wells which were
operated in a like way with a like purpose. The utility of the gas
was alleged, and a property right asserted, which the statute, it
was further alleged, deprived of in violation of the Constitution
of the United States.
A demurrer was sustained to the bill; therefore its averments
were admitted. The basis of the contention of the offense of the
statute against the Constitution of the United States explicitly
was that the company, being the owner of the land owned, had power
and authority over all beneath the land's surface that it could
reduce to possession. This was the same postulate, it will be
observed, that was asserted in
Oil Co. v. Indiana. It was
rejected upon the authority of that case. We, however, said: "Were
the question an open one, we should still solve it in the same
way."
May the principle and its justification be extended to the
Wyoming statute? The statute of Wyoming (we
Page 254 U. S. 319
repeat it to have it immediately before our eyes) declares it to
be a "wasteful and extravagant use of natural gas" to use, consume,
or burn it when taken or drawn from any gas well or wells or
borings,
"for the products, where such natural gas is burned without the
heat therein contained being fully and actually applied and
utilized for other manufacturing purposes or domestic
purposes."
The declaration of illegality, however, only applies when the
"gas or source of supply is located within ten miles of any
incorporated town or industrial plant." Section 2 explicitly
mentions carbon black as within the illegality of the law, and as
this case concerns its production, we may accept its production as
a test of the companies' case.
Of the range of the utility of carbon black there can be no
controversy, and to this fact the companies give an especial
emphasis in their averments, supplementary affidavits, and
argument. The fact, however, is but of incidental importance. The
determining consideration is the power of the state over, and its
regulation of, a property in which others besides the companies may
have rights, and in which the state has an interest to adjust and
preserve, natural gas being one of the resources of the state. And,
in this consideration, it is more important to consider not for
what a particular owner uses the gas, but the proportion of his use
to that of others, or, it may be, the prevention of use by others,
and the striking fact is presented by the companies' averments
that, by the processes and devices employed by them, there is only
obtained from each 1,000 cubic feet of natural gas consumed 1 3/4
pounds of carbon black and 2/10 of a gallon of high-gravity
gasoline. To this averment, the defendants add that every 1,000
cubic feet of gas contains from 33 to 40 pounds of carbon, and
therefore "that the inefficiency of the process used by the
complainants is very high, ranging only from 2.8% to 4.6%." It is
the further assertion
Page 254 U. S. 320
of defendants that the companies are utilizing and withdrawing
from the earth gas at the rate of approximately 10,000,000 cubic
feet per day, and that the same can never be replaced or
restored.
To these averments we may add the affidavits. There is something
in them, but not enough to reduce the importance of the facts
averred. Those on the part of the companies are directed to a great
extent to the value of carbon black and its use, and the detriment
or disaster of the discontinuance or even reduction of its
manufacture, and the explicit assertion is that it is absolutely
impossible to utilize the heat generated as an incident to its
manufacture. A comparison is made with other fuels, and the
affidavits are explicit in statement that the requirement that the
heat contained in them must be "fully and actually applied and
utilized" (to use the words of the Wyoming statute) is not only
unreasonable, but impossible. Figures are given not only of gas
engines, but of oil, air, and steam engines. This is dwelt on at
great length, and it is declared that it is absolutely impossible
to utilize heat generated as an incident to the manufacture of
carbon black, and it is said:
"If the true test of the waste of gas or any other fuel is
whether or not the heat therein contained is fully utilized, it
would follow that practically every industrial use of fuel must be
characterized as wasteful."
There is also testimony, from those familiar with the geological
formations and the production of natural gas in Wyoming, that there
are very extensive deposits underlying ten counties, and that their
development has scarcely more than commenced, and that their
potential capacity far exceeds the capacity of the wells now
drilled. Further, that the aggregate capacity of the existing wells
exceeds 650,000,000 cubic feet per day, and that this production
could be largely augmented if the demands for natural gas in the
state warranted.
Page 254 U. S. 321
Opposing affidavits set forth the needs of the towns, present
and prospective, and of industries other than carbon black, and
that the wells of the companies are drilled into the same sand in
which the wells of the Lovell Gas & Electric Company, an
industry which furnishes gas and electricity to the town of Lovell,
are drilled. The sand is a free, flowing sand -- that is, one in
which the gas has free access from one part of the field to the
other. Consequently the gas pressure would be approximately the
same at all the wells drilled into it. With the operation of the
wells of the companies came a diminution of pressure, and
"if the present consumption of gas continues for another year,
there will not be sufficient gas in this field in the particular
sand in question to supply even the domestic uses of the Town of
Lovell."
And it is affirmed that the plant of the Midland Gas Company
consists of about 90 separate buildings constructed of sheet iron
and steel, in such a way that they can be moved more readily than
almost any other character of construction, and were evidently
designed with the idea of portability in mind, and at the present
rate of consumption of the gas they will have to be moved, in any
event, within a year. Corroborating figures of the supply and
consumption are given, and it is said that, if the wells now driven
be allowed to flow at their full capacity, they will be entirely
exhausted in 90 days. The proof of this is said to be that the use
of 15,000,000 cubic feet per day of gas produced within the last 18
months has caused a loss of 57% of the available gas in the
producing sand. In contrast, it is estimated that, if the gas
consumed at the carbon plant was conserved, the supply available
for domestic and industrial use in the towns of Lovell and Cowley
would last for a period of ten years.
There is speculation as to other basins of deposits of gas and
its utility for industries, but which cannot be undertaken against
the depletion by the production of carbon
Page 254 U. S. 322
black. The process to make the latter is said to be simple, and
is similar to holding a cold plate over an old-fashioned gas jet.
In fact, it is said, the process used by the Midland Carbon Company
is merely an incomplete combustion of gases in an insufficient
amount of air, the flames from the different jets practically
touching cast iron channel plates, which are suspended over the
flames and are moved backward and forward at a very slow rate of
speed. The carbon is scraped off the plates into hoppers and
carried to the packing houses by conveyors. All of this is
mechanical.
It is testified (by an engineer of the Bureau of Mines in the
Interior Department, who had made a study of the making of carbon
black) that the efficiency of the carbon black industry is very
low; that the largest yield of which affiant had any knowledge did
not exceed 1 1/2 pounds per 1,000 cubic feet of natural gas, though
it is a well known and chemically ascertained fact that 1,000 cubic
feet of natural gas contains approximately from 33 to 45 pounds of
carbon.
The companies replied with affidavits of opposing tendency, and
made comparisons of the money value of carbon black with the money
value of natural gas; the former being the more valuable. And there
is contradiction of the asserted lower pressure of the wells and
the tendency to the depletion of the gas, and assertion that other
forms of industry can well use coal for fuel.
The affidavits (which we have presented necessarily in barest
outline), whether they may be regarded as presenting issues of fact
or of judgment, exhibit the conditions which may have moved the
policy and legislation of the state. Manifestly, conceding a power
to the state of regulation, a comparison of the value of the
industries and a judgment upon them as affecting the state was for
it to make. Such comparison may therefore be put aside. It may be,
as it is deposed, that 1,000 cubic feet of natural gas converted
into gasoline and carbon black may
Page 254 U. S. 323
be sold much higher than can be obtained from the same amount of
gas sold for fuel purposes, but it does not follow from that fact
that the state may not consider, and direct its legislation by the
consideration that (and we take the averment of the companies)
1,000 cubic feet of natural gas is consumed to produce 1 3/4 pounds
of carbon black and about two-tenths of a gallon of gasoline. That
it may so consider depends upon the question whether its statute is
within the principle of the statutes passed on in
Oil Co. v.
Indiana and
Lindsley v. Natural Carbonic Gas Co. By
reverting to these cases, it will be immediately observed that the
power of regulation over natural gas is possessed by a state, and
in the first case (
Oil Co. v. Indiana) it was exercised to
prohibit the employment of the gas as a means or agency in the
production of oil against an asserted right of property in the
ownership of the land upon which the oil was produced, and
therefore of the oil and gas as incidents of such ownership, and
which could be used in such manner and quantity as the landowner
might choose.
In the
Lindsley case, the power of the state was
exerted to prohibit the owner of the surface from pumping, on his
own land, water charged with gas. This was but an exertion, it was
said, to preserve from depletion the subterranean supply common to
him and other owners, and that the statute therefore was not
unconstitutional as depriving owners of their property without due
process of law.
Oil Co. v. Indiana, as we have pointed
out, was cited as a precedent, and its principle applied. The case
at bar is, we think, within that principle -- in other words, the
power is exerted to prohibit an extravagant or wasteful or
disproportionate use of the natural gas of the state.
We have seen that the method of production by natural gas is
like holding a cold plate over a candle, or, as it is expressed by
a witness, it can only be produced "by combustion and the impinging
of the flame on the metallic surface."
Page 254 U. S. 324
And there is great disproportion between the gas and the
product, and necessarily there was presented to the judgment and
policy of the state a comparison of utilities, which involved as
well the preservation of the natural resources of the state and the
equal participation in them by the people of the state, and the
duration of this utility was for the consideration of the state,
and we do not think that the state was required by the Constitution
of the United States to stand idly by while these resources were
disproportionately used, or used in such way that tended to their
depletion, having no power of interference.
The cited cases determine otherwise, and that, as the State of
Indiana could prevent the exhaustive use of gas in the production
of oil, and as the State of New York could prevent the owner of
land from using artificial means to obtain the carbonated waters
under his land, the State of Wyoming has the same power to prevent
the use of natural gas in the production of carbon black, the
tendency of which is (it may be the inevitable effect of which is)
the exhaustion of the supply of natural gas and the consequent
detriment of other uses.
It may be said, however, indeed, is said, that the purpose of
the act or its effect is a discrimination between producers of
carbon black; those ten miles from a town or industrial plant not
being within its provisions. We think the classification is
justified by the case of
Bacon v. Walker, supra, and
indeed by the principles which determine classification.
To the contention that the statute is not one of conservation,
because carbon black factories are permitted if ten miles distant
from a town or industrial plant, the immediate answer is that it is
for the state to determine not only if any conservation be
necessary, but the degree of it, and certainly the companies cannot
complain if the state has not exerted its full power.
As we have seen, many affidavits were addressed to the
Page 254 U. S. 325
impossibility of complying with the statute -- that is, of
utilizing the heat of natural gas to the extent of the words of the
statute. We say to the extent of the words of the statute because
we think the statute must be construed with reference to the facts
of nature and their possibilities, and that all that was intended
by the words employed was to require a practical and possible use
of the heat, as in other fuels, and by the existing
instrumentalities, and if this should be done, it was a legal use
of the gas -- was an application and utilization of the heat
contained in it. The statute was only intended to prevent the
selection of a product whose production tended, and according to
some of the affidavits, whose inevitable effect was, to exhaust the
supply of gas in a very little while.
The decree granting the interlocutory injunction is reversed,
and the case remanded to the district court for further proceedings
in conformity to this opinion.
THE CHIEF JUSTICE, MR. JUSTICE VAN DEVANTER, and MR. JUSTICE
McREYNOLDS dissent.