author: HINCKS, District Judge.

text:
    In re GUILD, BLOOMFIELD & JENSEN, Inc.
    No. 11778.
    District Court, D. Connecticut.
    July 28, 1931.

      Williamson, Willis, Lister & Foster, of Bridgeport, Conn. (Lorin W. Willis, of Bridgeport, Conn., of counsel), for petitioners.
    Sydney C. Perell, of Stamford, Conn., for trustee.
   HINCKS, District Judge.

This matter comes before the court upon the certificate of the. referee, issued upon the petitioners’ request for a review of an order by the referee, filed May 12, 1931, requiring the petitioners herein to surrender to the trustee of the above-named bankrupt a certain Ford automobile now in their possession.

From the referee’s certificate, it further appears that the automobile in question was sold by these petitioners to the bankrupt on August 28, 1930, upon a conditional bill of sale, which was recorded on September 30, 1930. The adjudication in bankruptcy was entered on March 23, 1931, and thereafter these petitioners repossessed the automobile in question and still hold the same.

It appears further from the certificate that the vendee, now the bankrupt, was insolvent on or before the date the contract of conditional sale was executed, and remained insolvent until the petition was filed.

Section 4697 of the General Statutes of Connecticut reads as follows:

“Sec. 4697. Conditional Scales to be Recorded. Except as otherwise provided in this chapter, all contracts for the sale of personal property, conditioned that the title thereto shall remain in the vendor after delivery, shall be in writing, describing the property and all conditions of such sale, and shall be acknowledged before some competent authority and filed within a reasonable time in the town clerk’s office in the town where the vendee resides; but the provisions of this section shall not apply to household furniture,, musical instruments, phonographs, phonograph supplies, radios, bicycles or property exempt from attachment and execution.”

Section 4699 of the General Statutes of Connecticut reads as follows:

“See. 4699. When Sales Held to be Absolute. All conditional sales of personal property not made in conformity with the provisions of section 4697, and all conditional sales of personal property which, at the time of such sale or thereafter, shall be so attached to any real estate as to appear to be a fixture, or to form a part of such real estate, shall be held to be absolute sales except as between the vendor and the vendee and their personal representatives, and all such property shall be liable to be taken by attachment and execution for the debts of the vendee in the same manner as any other property not exempted by law from attachment and execution.”

For all purposes of this statute, it is clear that a trustee in bankruptcy is not a “personal representative” within the meaning of the statute. In re Sternberg (D. C.) 300 F. 881; American Clay Machinery Co., v. New England Brick Co., 87 Conn. 369, 87 A. 731, 733; In re Wilcox & Howe Co., 70 Conn. 220, 39 A. 163. The ruling of the referee to that effect is therefore confirmed.

Whether the delay of a month in filing the contract of conditional sale operated to make the sale an absolute one in favor of the trustee in bankruptcy is a more difficult question, and one which must be determined in accordance with the law of Connecticut. Collier on Bankruptcy, vol. 2, p. 1701.

It is clearly established by the Connecticut eases that, under the statute quoted, the conditional vendor is estopped “from claiming title to the subject of such sale against a bona fide purchaser or attaching creditor or others who have acquired some lien or other beneficial interest in the property through .the vendee while the property was in his possession,” if the contract of conditiohal sale in question was not made and filed in all respeets in accordance with the statute. American Clay Machinery Co. v. New England Brick Co., supra. No ease, however, goes so far as to hold that a vendor under a contract of conditional sale irrevocably forfeits his title in the event of delay, even unreasonable delay, of the filing of his contract, or failure to comply with all the technical provisions of the statute. Indeed, in the American Clay Machinery Case, the original contract which was filed contained no acknowledgment. Thereafter a completed contract was filed, bearing a sufficient acknowledgment. The court held that the corrected contract failed to satisfy the statute, but only because it was not filed within a reasonable time, in view of the fact that new obligations to creditors had intervened. And in the case of Camp v. Thatcher, 75 Conn. 165, 52 A. 953, a decision holding a conditional sale to be an absolute one as against the plaintiff because of the delay of a month in filing the contract was predicated, not upon the proposition that a belated filing is wholly nugatory, but rather upon the fact that in that case an adverse right had intervened, without notice, actual or constructive, of the vendor’s title.

And so it seems to be the rule in Connecticut that, in determining whether or not a conditional sale shall be treated as an absolute sale in favor of intervening creditors, “the controlling test is obviously that of an actual or constructive reliance upon apparent ownership of the property involved when credit was given.” Jester v. Naples, 94 Conn. 567, 109 A. 894, 895. Of course, if there were properly on record a contract fully satisfying the statute, the element of an “actual or constructive reliance” upon the apparent ownership of the property would be wholly lacking.

To be sure, there seems to be some difficulty in reconciling the language just quoted from the opinion in the J ester Case with the facts involved, in that there the plaintiff vendor’s claim arose before the subject of sale ever came into the vendee’s possession. The contract there was defective for lack of acknowledgment and record, yet the court said that, by reason of this infirmity, the vendee’s creditor had “the right to enforce the appropriation of the property to the payment of his claim against Calabretta [the vendee] so long as it remained in the latter’s possession under the defective instrument.” In other words, the court treats the condition-, al sale as an absolute sale in favor of the vendee’s creditor whose claim antedated the sale. Such a ruling, it will be observed, involves no inherent conflict with the test quoted above; i. e., reliance on the vendee’s title when credit is given; for in the usual case a creditor who forbears to collect his debt “gives credit” as much as one who makes a new loan. Each has an equal interest in the financial ability and property of the debtor, and each is equally entitled to the notice provided by the statute of the existence of contracts reserving to others title to property in the apparent ownership of the debtor vendee.

It thus appears that the statute, in providing for the filing of the contract “within a reasonable time,” must be construed to mean that the filing is within a reasonable time as to any given creditor if such creditor gave or extended no credit in the broad sense discussed above prior to the actual time of the filing of the contract.

Indeed, it is hard to see how other factors could affect the determination of the question. The mere filing of a document seems to raise none of the considerations encountered in the other classes of eases in which reasonableness of time is an issue.

The Connecticut courts have repeatedly held that the primary purpose of the conditional sales statute was the protection of creditors and bona fide purchasers of the vendee from undisclosed contracts reserving title to others. It is in no whit inconsistent with this legislative intent that a filing which might be within a reasonable time with respect to one creditor would not be so with respect to another. In each case the test must be whether a sufficient contract had been filed “when credit was given.” Consequently, as to creditors whose claims originated prior to the filing 'of the contract, the sale must be deemed absolute. As to creditors whose claims originated subsequent to the filing of the contract, and who had a reasonable time by reference to the records to ascertain the existence of the contract, the conditional vendors are free to assert their title.

The test, it will be observed, is equitable, in that it protects all creditors who consult the records of the town clerk from unfiled and secret agreements, thus accomplishing to the full the primary object of the statute. On the other hand, it guards the vendor from an unconscionable advantage at the hands of a creditor who extended credit with knowledge, actual or constructive, of the vendor’s claim. And it tends to hold the property in the hands of the vendee available to any creditor who gave credit in reliance thereon to the exclusion of all those who did not.

Furthermore, the test is a practical one. It is easy of application in a contest between a single creditor and the vendee; it being necessary to ascertain only when the creditor’s claim originated. In ease of bankruptcy, however, further considerations are involved. For, obviously, if one out of the many creditors was in a position when the petition was filed to treat the sale as an absolute one, the trustee is subrogated to his (rights. Consequently, it results that the vendor seeking repossession must establish in every case where bankruptcy intervenes that not a single creditor had a claim which originated before the contract was filed. The repossessing vendor is clearly in the position of a plaintiff, and the burden of proof therefore rests on him. In re Master Knitting Corporation (C. C. A.) 7 F.(2d) 11. True, the difficulty of sustaining the burden may at times be insurmountable. But the burden is not inequitable, in that its difficulty varies in proportion to the neglect of the vendor in recording his contract. If he records promptly, there is no difficulty at all. The longer he waits the more difficult the burden becomes.

It will be observed that the foregoing opinion in no way conflicts with the opinion of Judge Thomas in In re Sternberg (D. C.) 300 F. 881. In that case the matter had been referred to a special master, who, on the facts of that ease, which are not fully reported, found that the contract in question had not been filed within a reasonable time. The court merely confirmed the master’s decision, pointing out at the same time that the question of reasonable time necessarily depends upon the facts of each separate case.

In this matter it appears that the bankrupt was in possession of the automobile in question when the petition was filed. How the vendors thereafter acquired possession is not disclosed. Presumably not by legal proceedings, or that fact would appear on the certificate for review. And so, if the vendors repossessed without authority of law from the custody of this court, they must stand subject to the same burden of proof as if the property were still in possession of the estate. Subject to that limitation, they are entitled to further hearing, if desired.

Accordingly the matter may be referred to the referee as special master for hearing and determination not inconsistent with this opinion.


source: Caselaw Access Project

author: LINDLEY, District Judge.

license: Public Domain

text:
    SWERN v. LIGGETT. In re LIGGETT.
    No. 260-D.
    District Court, E. D. Illinois.
    Aug. 11, 1931.
    Lewman & Carter, of Danville, Ill., and H. R. Snavely, of Marshall, Ill., for plaintiff.
    Fred Rhoads, of Paris, Ill., for defendant.
   LINDLEY, District Judge.

Plaintiff, as trustee in bankruptcy of J. R. Liggett, bankrupt, seeks to have set aside a mortgage upon farm land, securing $3,000, executed and delivered to the latter’s daughter, defendant, Edna Mae Liggett, four months and fifteen days prior to the bankrupt’s adjudication in bankruptcy, upon his voluntary petition, on the ground that said transfer was made with intent to defraud, delay, or hinder the bankrupt’s creditors. Plaintiff also seeks to avoid an. asserted transfer of personal property to the same daughter, three days after the recording of the mortgage and claimed to have been paid for by a credit of $929 indorsed upon the mortgage note by the daughter made at that time, on the ground that such alleged sale is invalid under the daw of Illinois governing transfers of personal property in general and also because in fraud of the Bulk Sales Law of Illinois.

Liggett was a dairy farmer, owning 129 acres of land and an unassigned dower interest in 49 acres adjoining his own land. He operated the farm and produced and sold dairy products thereon. He lived on the farm with two daughters, twins, who became of age eight and one-half years prior to the execution of the mortgage in question. These daughters continued to .reside with their father after they reached maturity and rendered necessary housekeeping services and substantial labor in the fields.

On January 18, 1930, Liggett had prepared and recorded the mortgage in question and then delivered it to his daughter Edna Mae, whereby he mortgaged part of his real estate to secure $3,099. Shortly thereafter. he executed a similar mortgage to his other daughter covering the remainder of his real estate; but with this document the court is not concerned except so far as it contributes light upon the fact that, after making the incumbrances mentioned, Liggett remained the owner of an equity in the farm land of no value and of the personal property on the farm.

Three days after delivering the mortgage to his daughter Edna Mae, Liggett claims to have sold to her five cows, four calves, three horses, thirteen hogs, and three sows for a consideration of $929. This, under the evidence, was the fair value of the said personal property. Liggett received no money or property and executed no document of transfer, but his daughter testifies that she thereupon credited him upon his mortgage note with the purchase price. The personal property claimed to have been sold remained on the farm without any sign or indication of change of ownership.

Liggett claims to have retained fifty marketable capons of the alleged value of $99, 499 bushels of com then worth about 95 cents per bushel or $389, some hay, chickens, and two cream separators. The hay and corn were thereafter consumed by the live stock sold to his daughter, without recompense to Liggett and with his knowledge and approval. The two cream separators, he testified, he sold to his daughter Edna for $199, but whether he received aetual credit therefor does not appear. Consequently, when Liggett became a voluntary bankrupt, he owned nothing of value except personal property of the value of $245 which he claimed as exempt.

The bankrupt and his two daughters testified that, when the latter reached the age of 18 years, an agreement was entered into between them and their father that, so long as they remained at home on the farm with him, did the housework, and helped him generally in his work, he would pay them $5 per week; that eight and one-half years had expired; that he paid them no cash; that in 1924 they demanded and received notes from him for what he owed them under said agreement; that new notes were executed in 1929 and renewed at the time of the execution of the mortgages; that he left the calculation of the amount due to them; that included in the indebtedness owed was rental on the 49 acres owned by them in which he had a dower interest, and that during the years in question he paid the family expenses. The circumstances imply that the daughters were to be charged nothing for board and lodging. At the time of the execution of the mortgages, the bankrupt was hopelessly insolvent and that fact was known to the moidgagees.

Though conveyances to near relatives when the conveyor is insolvent are to be closely scrutinized, are presumptively fraudulent, and should be sustained only when there is satisfactory proof of adequacy of consideration (Prosser v. Chapman [C. C. A.] 2 F.(2d) 134; In re Thorsen [D. C.] 282 F. 888; Clark v. Harper, 215 Ill. 24, 74 N. E. 61; Schuberth v. Schillo, 177 Ill. 346, 52 N. E. 319), the facts here sustain the transfer. The girls were of age and were free to earn a livelihood elsewhere. There was nothing improper in their employment by their father, and they proved to be faithful and industrious employees. There is no fact or circumstance impeaching the testimony of the three parties directly interested, other than their intimate relation, their personal interest, and the fact that Liggett told other creditors he owed no debts other than those to commercial houses and the banks. This latter proof indicates concealment and a desire to defeat his other creditors, but it'involves in no way the two mortgagees. The direct testimony must prevail and the mortgages upheld in the absence of evidence showing participation in any fraud by the daughters. Weld v. McKay, 218 F. 807 (C. C. A. 7).

Were this transfer within four months of the filing of the petition in bankruptcy, it would, under the evidence of knowledge of insolvency, be void as a preference. But such is not the case. Preferences by failing persons prior to the statutory four months’ period are valid. Weld v. McKay, supra. It may be unfortunate that Congress has seen fit to forbid involuntary petitions against farmers, and thus make it impossible for other creditors to attack preferences made valid by the elapse of more than four months prior to the filing of a voluntary petition, but relief from such inequality must come from Congress; it may not emanate from the court.

As to the alleged transfer of personal property a different situation exists. In view of the fact that the bankrupt sold all of his personal property to his daughter, outside of the usual course of business, and retained only hay and com which he later gave to her to feed to the horses, cows, and hogs so transferred, the transaction is void under the Illinois statute forbidding sales in bulk, without notice to creditors (Smith-Hurd Rev. St. 1929, c. 1211/2, § 78). Main v. Hall, 41 F.(2d) 715 (C. C. A. 7).

Furthermore, since the early ease of Ketchum v. Watson, 24 Ill. 591, and prior thereto, it has been the law of Illinois that, in order to pass title to personal property as regards third persons, there must be a change of possession, so that others may not be deceived. Here there was no visible change of possession. The chattels claimed to have been transferred remained upon the bankrupt’s farm; they were used and eared for by him and his helpers as previously, and to the live stock 'his grain was fed. To all intents and purposes, the property, so far as the world could ascertain by an examination thereof, was still in the possession of the bankrupt. It follows that the attempted transfer of personal property was in fraud of creditors.

There will be a decree dismissing the bill of complaint as to the real estate mortgage but directing that the alleged transfer of personal property is void, as defrauding, delaying, and hindering other creditors. The defendant shall be directed to pay to trustee the sum of $920, plus $100 for cream separators, with interest from the date of the attempted transfer at the rate of 5 per cent, per annum within thirty days from the date of the decree. In default of such payment, there will be a cancellation of the real estate mortgage, a sale of the land, and payment to the trustee from the proceeds of such sale of the amount of this decree and expenses of administration and of the balance to defendant herein.

The foregoing shall constitute the findings of fact and conclusions of law of the court herein.


author: COTTERAL and PHILLIPS, Circuit Judges. KENNAMER, District Judge KENNAMER, District Judge

text:
    CHAMPLIN REFINING CO. v. CORPORATION COMMISSION OF STATE OF OKLAHOMA et al.
    No. 1156.
    District Court, W. D. Oklahoma.
    Aug. 5, 1931.
    Dissenting Opinion Aug. 11, 1931.

      KENNAMER, District Judge, dissenting.
    Harry O. Glasser and H. G. McKeever, both of Enid, Okl., and Geo. Ramsey and Edgar A. Demeules, both of Tulsa, OH., for complainant.
    J. H. Miley, of Oklahoma City, Okl., W. P. Z. German, of Tulsa, Okl., Jess L. Ballard, Asst. Atty. Gen., and E. S. Ratliff, Atty. for OHahoma Corporation Commission, and Chas. West, for Governor of Oklahoma, both of Oklahoma City, Okl., for defendants.
    Before COTTERAL and PHILLIPS, Circuit Judges, and KENNAMER, District Judge.
   COTTERAL and PHILLIPS, Circuit Judges.

This is a suit brought by Champlin Refining- Company, a corporation, to enjoin the enforcement of certain oil proration orders made by tbe corporation commission of tbe state of Oklahoma. Tbe case bas been finally beard and submitted on tbe merits'; tba facts appear from the special findings of fact filed herewith and need not be reiterated here.

Tbe orders in question are predicated on the provisions of the Act of February 11, 1915, S. L. 1915, page 35, sections 7964-7963, inclusive, C. O. S. 1921, which is set out in footnote.

Counsel for plaintiff contend: First, that the statute on which the orders are predicated is unconstitutional; and, second, if the statute is valid that the orders themselves violate the constitutional rights of plaintiff and are void.

The Validity of the Statute.

We observe at the outset that the burden rests upon the plaintiff to establish that the statute infringes the constitutional guaranties whieh it invokes, and if the statute is susceptible of a construction which conforms to constitutional requirements, doubts must be resolved in favor of and not against the state. Toombs v. Citizens Bank of Waynesboro, 281 U. S. 643, 647, 50 S. Ct. 434, 74 L. Ed. 1088; United States Airways v. Shaw (D. C.) 43 F.(2d) 148, 150.

The statute has a dual aspect: First, as a penal statute to prevent waste and to protect the coequal rights of the several owners of land situate over a common pool of oil and gas to take from the common source of supply; and, second, a regulatory statute to be supplemented by rules, regulations, and orders of the commission to accomplish the same ends.

The penalties provided are for violations of the statute and no penalties are provided for violations of the rules and' regulations promulgated by the commission.

We are of the opinion that the statute is too indefinite and uncertain to be sustained as a penal statute. Smith v. Cahoon, Sheriff, 283 U. S. 553, 51 S. Ct. 582, 75 L. Ed. -. An oil operator should not be required at the peril of severe criminal penalties to determine in the operation of his oil and gas wells whether he is committing economic waste or producing in excess of reasonable market demands because such terms are not defined in the act and are of uncertain and doubtful meaning. Likewise, a producer from a common source of supply should not be required to determine at the peril of such penalties whether he can operate at full production without committing economic waste or producing in excess of reasonable market demands.

Furthermore, it is unreasonable to require an operator to choose between two approved methods of operation, the results of whieh cannot be forecast with precise accuracy, in dealing with the ordinary problems confronted in the drilling and operation of oil and gas wells, at the peril, if he makes the wrong choice, that some underground waste will result and he thereby become subjected to such severe penalties, under a statute whieh affords no guide for the operator under such circumstances. However, except in one particular hereinafter mentioned, the validity of the act as a penal statute is not before us.

Oil and gas are natural resources whieh cannot be replaced, and the power of the state to impose reasonable regulations to prevent waste in the production, handling, and marketing thereof is undoubted. Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 S. Ct. 576, 584, 44 L. Ed. 729; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160; Walls v. Midland Carbon Co., 254 U. S. 300, 41 S. Ct. 118, 65 L. Ed. 276; Cooley’s Constitutional Limitations (8th Ed.) vol. 2, pp. 1319-1321.

The right of the state to make reasonable regulations for the protection of the coequal rights of landowner’s over a common-pool of oil or gas to take from the common source of supply and to prevent one from-taking in an undue proportion to the detriment of the others, and to prevent one from-committing waste to the injury of the rights of the others, is well settled. Ohio Oil Co. v. Indiana, supra; Lindsley v. Natural Carbonic Gas Co., supra; Walls v. Midland Carbon Co., supra; Oxford Oil Co. v. Atlantic-Oil Producing Co. (C. C. A.) 22 F.(2d) 597; Id. (D. C.) 16 F.(2d) 639; Marrs v. City of Oxford (D. C.) 24 F.(2d) 541; Id. (C. C. A.) 32 F.(2d) 134, 138, 67 A. L. R. 1336.

In the Ohio Oil Case the court said: “On the other hand, as to gas and oil the surface-proprietors within the gas field all have the-right to reduce to possession the gas and oil-beneath. They could not be absolutely deprived of this right whieh belongs to them, without a taking of private property. But there is a coequal right in them all to take-from a common source of supply the two-substances whieh in the nature of things are united,-though separate. It follows from the-essence of their right and from the situation of the things as to which it can be exerted, that the use by one of his power to seek to-convert a part of the common fund to actual possession may result in an undue proportion being attributed to one of the possessors of the right to the detriment of the others, or by waste by one or more to the annihilation of the rights of the remainder. ' Hence it is that the legislative power, from the peculiar nature of the right and the objects upon whieh it is to be exerted, 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.”

It is within the power of the Legislature to lay down general rules for the prevention of waste and for the protection of such coequal rights of the several owners of land over a common pool and to' delegate to an administrative agency the power to promulgate rules and regulations covering matters of detail for carrying such general rules into effect. Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 34 S. Ct. 359, 58 L. Ed. 713; Oxford Oil Co. v. Atlantic Oil Producing Co., supra; 12 C. J. p. 847, § 330.

Section 10 of the act provides "that the Invalidity of any section, sub-division, clause ■or sentence of this act shall not in any manner affect the validity of the remaining portion thereof.”

Sections 1, 3, 4, 5, 6, and 7 of'the act provide a complete scheme for the enforcement through rules and regulations promulgated by the corporation commission of the general rules provided in sections 3 and 4 for the prevention of waste and for the protection of the coequal rights of the several owners of land over a single pool of oil and gas to take from the common source of supply, and may, in our opinion, be severed from the remaining portion of the act. Ohio River & W. R. Co. v. Dittey et al., 232 U. S. 576, 34 S. Ct. 372, 58 L. Ed. 737; Grand Trunk R. Co. of Canada v. Michigan R. R. Commission, 231 U. S. 457, 34 S. Ct. 152, 58 L. Ed. 310; Phoenix R. Co. v. Geary, 239 U. S. 277, 36 S. Ct. 45, 60 L. Ed. 287; Grenada Lbr. Co. v. Mississippi, 217 U. S. 433, 30 S. Ct. 535, 54 L. Ed. 826; Western Union Telegraph Co. v. City of Richmond, 224 U. S. 160, 32 S. Ct. 449, 56 L. Ed. 710.

We are not concerned with the question ■of whether such sections provide the best method of preventing waste and protecting such rights. The determination of that question is a legislative prerogative. Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 569, 31 S. Ct. 259, 55 L. Ed. 328; Block v. Hirsh, 256 U. S. 135, 41 S. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165. The question here is whether such provisions are reasonably calculated- to prevent such waste and protect such rights and are not an unreasonable interference with the rights of such owners to enjoy their property.

The production of oil and gas in excess of transportation or marketing facilities or in excess of market demands results in above-ground storage. At the time this statute was enacted, as shown by the orders of the commission, it resulted in large amounts of such storage in earthen reservoirs, with resultant waste through seepage and evaporation. It is a well-known fact in the oil industry that oil can be best stored underground. Furthermore, it is established by the evidence that to permit oil wells to flow at their maximum flush production results in the use of an excessive amount of gas pressure, an uneconomical and wasteful use of gas energy in lifting the oil, and a tremendous loss in ultimate recovery. This is of particular importance in a pool such as the Oklahoma City pool where the wells are of tremendous depth and the cost of artificially raising the oil will be unusually great. It is important that the wells shall be permitted to produce with the lowest practical gas-oil ratio, to the end that the gas pressure shall be preserved throughout a long period and the greatest ultimate recovery of gas and oil obtained.

Sections 3 and 4 of the act, when supplemented by proper rules and regulations of the commission, are reasonably calculated to prevent such wastes and to protect such coequal rights of the several owners of land over a common pool. And, in our opinion, are clearly within the competency of the Legislature.

It is asserted by counsel for plaintiff that the statute and the orders have for their purpose an interference with the law of supply and demand, by decreasing the normal supply of oil and gas and thereby raising the price, and that they are price-fixing in character. It may be that the restriction on production imposed by the statute will prevent a supply in excess of the market demands and thus indirectly tend to sustain the price of oil and gas. But such is not the main purpose of the statute, and the fact that it may have an indirect effect on prices does not, in our opinion, render it invalid.

Counsel for the plaintiff further contend that the provisions of section 6, authorizing the commission to punish as for contempt a violation of its orders, is a delegation of judicial power to a legislative branch of the government, in violation of section 1, article 4, of the Oklahoma Constitution. The commission has not invoked that provision of the act for the enforcement of the proration orders against the plaintiff and the validity of such portion of section 6 is not here presented. If it is in fact invalid, the orders of the commission may be enforced by appropriate proceedings in mandamus or injunction. 51 C. J. 83, § 149.

Validity of the Orders.

Counsel for plaintiff contend that the orders themselves are void: First, because they have for their object the fixing of prices by limiting the supply of oil; second, because they are predicated on information furnished by agents of the commission, who receive a salary for their work from certain of the producers in the fields affected by such orders; and, third, because no lawful gauges have been taken of the wells in such fields, as required by section 5 of the act.

The theory upon which the orders are predicated is that oil from a given pool shall not be produced in excess of the market demands therefor in order to prevent wasteful storage and wasteful use of gas pressure in lifting the oil.

Counsel for plaintiff assert that, since it is able to take oil in excess of the amounts permitted by such orders and to transport and market the same without the commission of any waste, a denial of its right so to do amounts to a deprivation of its property in contravention of the Fourteenth Amendment. The plaintiff is a. so-called integrated producer; that is, it owns both producing wells, pipe lines, refineries, and marketing facilities. Other producers have no pipe line, refinery, or marketing facilities, and if they should be permitted to produce in excess of market demands they would have to store the same and this would result in waste. On the contrary, if plaintiff should be permitted to take all the oil it could utilize without waste, it would encroach upon the rights of other producers not having pipe line, refinery, and marketing facilities, to take from the common source of supply. Under these circumstances, we are of the opinion that the limiting of the taking to the market demands is a reasonable regulation for the prevention of waste and the protection of the coequal rights of the owners of land over such pool. “Where the public interest is involved preferment of that interest over the property interest of the individual, * * * is one of the distinguishing characteristics of every exercise of the police power which affects property.” Miller v. Schoene, 276 U. S. 272, 280, 48 S. Ct. 246, 247, 72 L. Ed. 568, and eases there cited.

As observed with respect to the act itself, the object of the orders is to prevent waste and to protect the coequal rights of the owners of land over the common pool, and the fact that such orders tend to- prevent the oversupply of oil and gas in excess of market demands and indirectly affect the prices thereof, does not make them price-fixing in character, and for that reason invalid.

The employment by the commission of agents and employees who are paid by groups of producers in the fields affected by such orders to gather the data and information on which such orders are in part predicated is subject to condemnation. It is only calculated to breed suspicion and distrust and to destroy confidence in the integrity of the commission. However, the evidence does not establish that such agents and employees have been guilty of favoritism or dishonesty, or that the commission has acted arbitrarily or discriminated in favor of the groups paying such'agents. Furthermore, while the system is objectionable, it has been in vogue over a long period of time, during which a session of the state Legislature occurred. Such Legislature did not see fit to provide any funds with which to pay such agents and thereby gave implied legislative sanction to the practice.

While we think the practice of employing agents paid by producers interested in such orders should be discontinued, we find no basis in the evidence because thereof for striking down the orders.

The fact that the Seminole field is permitted a greater percentage of its potential production than is the Oklahoma City field is not necessarily a discrimination in favor of the former. The Seminole field is an older one, is more favorably located with reference to the large interstate pipe lines, and naturally has a larger market demand. It has passed the period of flush production. These circumstances justify a larger percentage of allowable production for the Seminole field.

Section 5 provides that for the purpose of determining proportionate production under section 4, a gauge of each well shall be taken under rules and regulations prescribed by the commission. The act leaves the method and details for taking such gauges to the commission. If the gauges result in permitting each owner to take the same proportion of his actual potential production, it is immaterial what method of gauging is used or whether potential production is determined by measurement of actual production. A gauge of the wells in the Oklahoma City field at the same time with all wells open to full production would be physically impossible. The available storage and transportation facilities would be wholly inadequate to handle the oil produced. The method employed in the Oklahoma City and Seminole fields arrived at approximately accurate results. The orders fixed the allowable of every producing well in the Oklahoma City field at substantially the same relative proportion of their respective potentials. They did likewise in the other fields. We think there was a substantial compliance with section 5 of the act, and that no discrimination between producing wells resulted from the method by which the potentials thereof were determined. The Validity of the State Court Proceedings.

The .facts with reference to such proceedings are set forth in paragraph 34 of the third amended and supplemental bill of complaint and need not be repeated here. They are predicated on the provisions of section 9 of the act. This provision is penal in character and is for the purpose of punishing violations of the provisions of the act itself, (not the orders of the commission), as a criminal statute. For the reasons hereinbefore indicated, we think this section is void and that such proceedings in the state courts should be enjoined.

Interstate Commerce.

We are clearly of the opinion that the scheme of proration is not invalid as a regulation of or burden on interstate commerce. It is true that a substantial portion of the oil produced in this state goes into' the channel of such commerce. But in order to conflict with the regulatory power of Congress, there must be a direct burden thereon. In this ease, the interference is entirely too remote in character. The principle is too well settled to require citation, that the congressional power of regulation attaches only when interstate transportation has begun. Proration enforced under state powers cannot be said to affect commerce in oil to which producers have acquired no title. While they have a right to take the oil, yet title does not vest in it until it is reduced to possession. Ohio Oil Co. v. Indiana, supra; Rich v. Doneghey, 71 Okl. 204, 177 P. 86, 3 A. L. R. 352; Alexander v. King (C. C. A.) 46 F.(2d) 235. The production of oil is analogous to the manufacture of goods or the mining of coal._ Neither is interstate commerce, although the product may be later shipped to other states. Hammer v. Dagenhart, 247 U. S. 251, 38 S. Ct. 529, 62 L. Ed. 1101, 3 A. L. R. 649, Ann. Cas. 1918E, 724; Delaware, L. & W. R. Co. v. Yurkonis, 238 U. S. 439, 35 S. Ct. 902, 59 L. Ed. 1397. See, also, West v. Kansas Nat. Gas Co., 221 U. S. 229, 31 S. Ct. 564, 55 L. Ed. 716, 35 L. R. A. (N. S.) 1193; Pennsylvania v. West Virginia, 262 U. S. 553, 43 S. Ct. 658, 67 L. Ed. 1117, 32 A. L. R. 300; Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 49 S. Ct. 1, 73 L. Ed. 147.

These are the views of a majority of the court. We have not taken the time necessary to prepare a more formal opinion, because we deemed it important to make an early disposition of the cause.

KENNAMER, District Judge

(dissenting).

I concur in the opinion of the majority of the court, holding the penalty provisions of the Conservation Aet unconstitutional, and that the corporation commission has power under the regulatory provisions of the act to enter orders enjoining oil operators committing actual waste in the production of oil and gas. I dissent from that part of the opinion sustaining the orders of the commission permitting the administration of the Conservation Aet through privately paid agents of interested parties in the production and marketing of oil and gas. I am further of the opinion that the orders of the commission are discriminatory and enforced in an unconstitutional manner. I shall file a formal dissenting opinion setting forth my views.

KENNAMER, District Judge

(dissenting).

Under the provisions of the Aet approved February 11, 1915 (S. L. 1915, c. 25, p. 35), sections 7954-7963, inc., C. O. S. 1921, the corporation commission of Oklahoma is vested with jurisdiction to hear any proceeding instituted by any person, firm, or corporation, or the Attorney General on behalf of the state, involving any questions relating to the enforcement of the aet, and to determine all questions of fact involved in such proceeding.

The object of complainant’s action instituted in this court is to restrain the enforcement of certain orders of the corporation commission restricting the amount of oil complainant may produce from its properties within certain oil fields in the state of Oklahoma. Such orders are designated as proration orders. The statute upon which the pro-ration orders are bottomed is herein attacked as unconstitutional, and the orders made under the authority of the statute are attacked as unconstitutional in that they deny the complainant due process of law. The act involved is set out in full in the majority opinion.

• The material allegations of complainant’s bill and the' evidence introduced at the trial of the cause disclose that complainant is a corporation organized and existing under and by virtue of the laws of the state of New Mexico, and has been duly authorized to transact business within the state of Oklahoma, with its principal office and business located in the city of Enid, Old. It is engaged in the business of producing, transporting, refining, and marketing petroleum and natural gas, and their products. It owns and operates an oil refinery at Enid, Okl., with a daily capacity of approximately 17,000 barrels of crude oil. It refines and manufactures gasoline, kerosene, lubricating oil, waxes, and other products. In connection with its refinery, it operates approximately 725 tank cars for the distribution of its refined products among its customers and trade in Oklahoma, Texas, Colorado, Kansas, Arkansas, and many other states. It has and operates approximately 470 miles of pipe lines for the transportation of its products, 263 retail ■ gasoline filling stations, and 256 wholesale stations in various states. It has 45 producing oil and gas leases and many undeveloped leases, all representing an investment of several million dollars. It has made a large investment in leases in the Oklahoma City field and has several producing wells equipped at an expenditure of several hundred thousand dollars. On or about June 30, 1930, the corporation commission of the state of Oklahoma entered an order entitled “Or-. der No. 5181, Cause No. 10146,” which prescribed the allowable production from each of the principal oil producing fields for the state of Oklahoma, which included the complainant’s properties, and prescribed rules and regulations governing the production of oil in said fields, and on October 28, 1930, made Order No. 5369, and from time to time and until within a few days of the trial of this cause have amended and supplemented said orders so as to prorate the amount of production that may be produced from the various properties of the complainant based upon the estimated potential production of the various oil fields of the state of Oklahoma. Said orders purport to allow from time to time the number of barrels of crude oil to be produced daily from the oil fields of the state of Oklahoma, and said orders recite in support thereof that the number of barrels of crude oil allowed to be produced represent the reasonable market demands for crude oil from said state. The defendants have appointed and designated as their agents to enforce the orders Otto B. Bradford, commonly known as an umpire, for the Oklahoma City field, and Ray H. Collins, known as an umpire, for the state at large and especially the greater Seminole field. These umpires are paid large and lucrative salaries through voluntary contributions made by various oil companies operating in the various oil fields of the state. These contributing oil companies have formed and designated an- “Operator’s Committee.” The Operator’s Committee represents oil companies that are competitors of complainant in the business of producing, or refining, and marketing crude oil and its by-products.

The jurisdiction of this court to determine the constitutionality of the statute and the orders entered under the authority of the statute was not seriously questioned at the hearing. This is not an action against the state in violation of the Eleventh Amendment to the Constitution of the United States. An action to restrain an officer of the state from acting under a statute alleged to be in violation of the Constitution of the United States, or otherwise violating a citizen’s constitutional rights, is not a suit against the state.

Mr. Chief Justice White, speaking for a unanimous court, in Home Telephone & Telegraph Co. v. Los Angeles, 227 U. S. 278, 33 S. Ct. 312, 315, 57 L. Ed. 510, held that the prohibitions and guaranties of the Fourteenth Amendment to the National Constitution are addressed to, and control, not only the states, but also every person, whether natural or juridical, who is the repository of state power, and among other things said: “Here again the settled construction of the Amendment is that it presupposes the possibility of an abuse by a state officer or representative of the powers possessed, and deals with such a contingency. It provides, therefore, for a ease where one who is in possession of state power uses that power to the doing of the wrongs which the amendment forbids, even although the consummation of the wrong may not he within the powers possessed, if the commission of the wrong itself is rendered possible or is efficiently aided by the state authority lodged in the wrongdoer. That is to say, the theory of the Amendment is that where an officer or other representative of a state, in the exercise of the authority with which he is clothed, misuses the power possessed to do a wrong forbidden by the Amendment, inquiry coneermng whether the state has authorised the wrong is irrelevant, and the Federal judicial power is competent to afford redress for the wrong by dealing with the officer and the result of his exertion of power.” (Italics mine.)

Suits in the federal court to restrain the Oklahoma corporation commissioners from using the color of their office to deny a citizen or corporation rights guaranteed by the Fourteenth Amendment have been frequently maintained. Oklahoma Operating Co. v. Love, 252 U. S. 331, 40 S. Ct. 338, 64 L. Ed. 596; Oklahoma Gin Co. v. State of Oklahoma et al., 252 U. S. 339; 40 S. Ct. 341, 64 L. Ed. 600. See, also, Georgia Power Co. v. Decatur, 281 U. S. 505, 50 S. Ct. 369, 74 L. Ed. 999; Louisville & N. R. Co. v. Garrett, 231 U. S. 313, 34 S. Ct. 48, 58 L. Ed. 229; Lake Erie & Western R. Co. v. State Public Utilities Commission, 249 U. S. 422, 39 S. Ct. 345, 63 L. Ed. 684; Philadelphia Co. v. Stimson, 223 U. S. 605, 32 S. Ct. 340, 56 L. Ed. 570; Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220; Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667; 25 C. J. § 53, page 743.

In Langford v. United States, 101 U. S. 341-346, 25 L. Ed. 1010, Mr. Justice Miller, speaking for the court, said: “The maxim, that the King can do no wrong, has no place in our system of constitutional law, as applicable either to the Government or to any of its officers.”

If the national courts did not possess this jurisdiction, “the Constitution, steel framed, of the national fabric would fall in ruin.” Free institutions, personal liberty, and property rights would be destroyed. See Looney, Attorney General of the State of Texas, v. Crane Co., 245 U. S. 178, 38 S. Ct. 85, 62 L. Ed. 230. Mr. Chief Justice White in disposing of the same contention made, at page 191 of 245 U. S., 38 S. Ct. 85, 88, said: “There is a contention to which we have hitherto postponed referring, that the court below was without jurisdiction because the suit against the state officers to enjoin them from enforcing the statutes in the discharge of duties resting upon them was in substance and effect a suit against the state, within the meaning of the Eleventh Amendment. But the unsoundness of the contention has been so completely established that we need only refer to the leading authorities. Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Western Union Telegraph Co. v. Andrews, 216 U. S. 165, 30 S. Ct. 286, 54 L. Ed. 430; Home Telephone & Telegraph Co. v. Los Angeles, 227 U. S. 278, 33 S. Ct. 312, 57 L. Ed. 510.”

In Terrace v. Thompson, 263 U. S. 197, 214, 44 S. Ct. 15, 17, 68 L. Ed. 255, the Supreme Court of the United States held: “Equity jurisdiction will be exercised to enjoin the threatened enforcement of a state law which contravenes the federal Constitution wherever it is essential in order effectually to protect property rights and the rights of persons against injuries otherwise irremediable.”

The conclusion reached by my distinguished colleagues, “that the statute is too indefinite and uncertain to be sustained as a penal statute,” cannot be seriously controverted. The drastic provisions of the statute subject an oil-operator to a penalty of $5,000 fine, 30 days in jail, or both, in the discretion of the court when such operator committed economic waste, underground waste, waste incidental to production in excess of transportation facilities, or produces his oil in excess of reasonable market demands, and that his property in a suit by the state, through the Attorney General or any county attorney, may be placed in an indeterminate receivership. It was held in Connally v. General Construction Co., 269 U. S. 386, 46 S. Ct. 126, 127, 70 L. Ed. 322, that: “A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” The power of the state to provide reasonable regulations to prevent actual waste, or wasteful utilization in the production and marketing of oil and gas, is well established. Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 S. Ct. 576, 44 L. Ed. 729; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160; Walls v. Midland Carbon Co., 254 U. S. 300, 41 S. Ct. 118, 65 L. Ed. 276. The reason for the rule is that waste of the natural resources of the state is not only detrimental to the common weal, but also injuriously affects the rights of landowners over a common pool of oil or gas, and all such owners are entitled to an equal privilege of reducing oil and gas to possession. Ohio Oil Co. v. Indiana, supra. I cannot subscribe to the conclusion that the owners of land in a common oil pool own such oil and gas in common, and the right of one owner to reduce oil and gas underlying the surface of his land to possession is dependent upon the ability of another owner to reduce the oil and gas beneath the surface of his land to possession. No such rule of property exists in the state of Oklahoma.

The right of an owner of land within Oklahoma to drill wells and reduce oil and gas to possession which lies beneath his land is a property right protected by the Fourteenth Amendment to the Federal Constitution. The Oklahoma Supreme Court has repeatedly followed the rule that an estate in fee simple in lands in Oklahoma includes all oil and gas in place in and under the land so long as it remains therein, and the owner of such land has a vested right to use it and to enjoy the profits accruing therefrom, since without the latter the former cannot be of value. Wright v. Carter Oil Co., 97 Okl. 46, 223 P. 835; Green v. Biddle, 8 Wheat. 1-76, 5 L. Ed. 566; Terrace v. Thompson, 263 U. S. 215, 44 S. Ct. 15, 68 L. Ed. 274.

In the ease of Wright v. Carter Oil Co., supra, the Oklahoma Supreme Court said: “The right to reduce oil and gas to possession is a valuable property right.” In the same ease, the court held that “oil and gas belong to the owner of the land and are a part of it so long as they are on it, or in it, and subject to his control, but when they escape and go into other land, or come under another’s control through the natural reservoir, the title of the former owner is gone.” Thus, an established rule of property has grown around oil and gas, and such property rights are subject to protection as other property rights.

In Ohio Oil Co. v. Indiana, supra, the court said: “On the other hand, as to gas and oil the surface proprietors within the gas field all have the right to reduce to possession the gas and oil beneath. They could not be absolutely deprived of this right which belongs to them without a taking of private property.” In West v. Kansas Natural Gas Co., 221 U. S. 229, 31 S. Ct. 564, 571, 55 L. Ed. 716, 35 L. R. A. (N. S.) 1193, the court in referring to the opinion of the court in Ohio Oil Co. v. Indiana, supra, said: “It surely cannot need argument to show that if they could not be deprived of the right to reduce the gas to possession, they could not be deprived of any right attached to it when in possession.” The trial court in the cited case, in construing an act of the Legislature of Oklahoma prohibiting the transportation of natural gas in interstate commerce, held (Kansas Nat. Gas Co. v. Haskell [C. C.] 172 F. 545) that natural gas found within the territorial limits of a state was not a product which the state may conserve and preserve by law as a thing in which the people of the state have a common interest, as wild animals, but that it was an absolute property right, of which the owner cannot be deprived without just compensation.

The Supreme Court of the United States, in Brown v. Spilman, 155 U. S. 665, at page 669, 15 S. Ct. 245, 247, 39 L. Ed. 304, said: “Petroleum gas and oil are substances of a peculiar character, and decisions in ordinary eases of mining, for coal and other minerals which have a fixed situs, cannot be applied to contracts concerning them without' some qualifications. They belong to the owner of the land, and are part of it, so long as they are on it or in it or subject to his control; but when they escape and go into other land, or come under another’s control, the title of the former owner is gone. If an adjoining owner drills his own land, and taps a deposit of oil or gas, extending under his neighbor’s field, so that it comes into his well, it becomes his property. Brown v. Vandergrift, 80 Pa. 142, 147; Westmoreland & C. Nat. Gas Co.’s Appeal, 130 Pa. 235, 18 A. 724 [5 L. R. A. 731].”

While the state, in the exercise of its police power, has the power, through appropriate legislation, to protect the public morals, health, and safety, it cannot take private, property from one person and transfer it to another for the private use and benefit of such person. The exercise of the police power is subject to constitutional limitations. “The chief restriction on this class of legislation is that vested rights must not be disturbed.” Cooley’s Constitutional Limitations, p. 744.

In Lawton v. Steele, 152 U. S. 133, 14 S. Ct. 499, 501, 38 L. Ed. 385, the court said: “To justify the state in thus interposing its authority in behalf of the public, it must appear — First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations; in other words, its. determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.”

The state has no title to oil and gas in place, and is without power to appropriate the oil and gas in and under the lands of one owner to' the use and benefit of another owner. The only interest the state has under its police power is to prevent actual waste and' to provide equal privileges to' every landowner to reduce such products to possession and place them in the channels of legitimate commerce. The state exceeds its constitutional authority when, under the pretense of preventing waste, it attempts to regulate market demands, and for the purpose of regulating and controlling the price at which the owner of oil and gas, after it has been reduced to possession, must market such product. It is plain from the provisions of section 2 of the act that it is a price-fixing statute. The act empowers the commission to determine at what price oil and gas may be marketed. In the presentation of the application for temporary injunction counsel for the defendants conceded that section 2 of the act was invalid as a price fixing statute. The orders of the commission recite that because of market demands the daily production of the state of Oklahoma must be restricted to approximately 550,000 barrels of oil daily, and the commission attempts by its orders, not only to restrict the daily amount of production, but also to prorate the markets among the various oil pools of the state. It is only reasonable to infer from the language employed in the orders of the commission and all the evidence introduced on the trial of the cause that the sole purpose of the commission in restricting the amounts of daily production in the state of Oklahoma was for the purpose of requiring all owners of oil and gas to market it at what is commonly termed the “posted price.” The “posted price” is simply a price agreed to be paid by the purchasing companies that substantially constitute the Operator’s'Committee.

It is the contention of counsel for the defendants that if the amount of oil to be produced is not restricted under the proration orders of the commission it will result in waste through storage of crude oil, especially storage in earthen tanks. Aside from a rule prohibiting storage in earthen tanks, the commission has in no manner undertaken to regulate the storage of crude oil. It is a matter of common knowledge that millions of barrels of crude oil are now confined in storage. If the Legislature deems storage of oil in earthen tanks wasteful, and there is no evidence that such practice has been engaged in, during recent years, it can pass a brief act prohibiting such storage. The evidence is uncontroverted that the complainant in this ease has been and is capable of producing, refining, and marketing its products without waste.

Producing, refining, and marketing crude oil is not a public service business. The producer does not devote his property to a public use so as to give the state the power to regulate it like railroads and other public utilities. Charles Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 43 S. Ct. 630, 67 L. Ed. 1103, 27 A. L. R. 1280; and Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U. S. 430, 47 S. Ct. 426, 71 L. Ed. 713, 58 A. L. R. 1236. It is also well settled that the Legislature, neither directly nor through the corporation commission, can regulate or fix the price of crude oil. The producer has the right under the Fourteenth Amendment to the National Constitution to fix his own price. Williams v. Standard Oil Co., 278 U. S. 239, 49 S. Ct. 115, 73 L. Ed. 287, 60 A. L. R. 596; Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U. S. 418, 47 S. Ct. 426, 71 L. Ed. 718, 58 A. L. R. 1236; Charles Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 43 S. Ct. 630, 67 L. Ed. 1103, 27 A. L. R. 1280; Fairmont Creamery Co. v. State of Minnesota, 274 U. S. 1, 47 S. Ct. 506, 71 L. Ed; 893, 52 A. L. R. 163; and Ribnik v. McBride, 277 U. S. 350, 48 S. Ct. 545. 72 L. Ed. 913, 56 A. L. R. 1327.

With all deference to the opinion of my associates, I cannot escape the conclusion that section 4 of the act is no more nor less than a part of the legislative scheme to fix prices for crude oil and that it does not provide for a fair and equitable proportionate taking by separate operators in the common ’field. Section 4 does not purport to require equitable taking except “whenever the full production from any common source of supply * * * can only be obtained under conditions constituting waste as herein defined,” which must mean that a person “having the right to drill into and produce oil from any such common source of supply, may take therefrom only such proportion of all crude oil and petroleum that may be produced therefrom, without waste, as the production of the well or wells of any such person, firm or corporation, bears to the total production of such common source 1 of supply,” whenever, quoting section 2, “there is not a market demand therefor at the well at a price equivalent to the actual value of such crude oil or petroleum,” as determined by the commission. Section 4 means that whenever there is not a market at the price Axed by the corporation commission for “the full production from any common source of supply of crude oil or petroleum in this State,” then “any person, firm or corporation, having the right to drill into and produce oil from any such common source of supply, may take therefrom only such proportion of all crude oil and petroleum that may be produced therefrom” and sold “at the well at a price equivalent to the actual value of such crude oil or petroleum” as determined by the corporation commission under the authority attempted to be conferred upon it by section 2 of the act. If this .is not the correct construction and the Legislature intended to authorize the commission to enforce in the oil fields “a just distribution, to arise from the enjoyment” by the operators in that field “of their privilege to reduce to possession,” then why did not the Legislature prohibit an operator from pumping his wells unless his adjoining neighbor in the same pool has facilities for pumping oil from the common source (and an operator using a pump may restrain an adjoining operator from leaving open un-producing wells on his property the effect of which is to interfere with the action of the pump, Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 So. 206, 5 A. L. R. 411 and note; Bassell v. West Virginia Central Gas Co., 86 W. Va. 198, 103 S. E. 116, 12 A. L. R. 1398; Thornton on Oil & Gas (3d Ed.) vol. 1, § 32), and why did not the Legislature require an operator to shut down his offset wells in the event his adjoining neighbor’s wells are choked up by casing and thereby prevented from producing? The so-called proportionate taking as provided for by section 4 only becomes operative in flush pools or in pools, the full production of which cannot find a market “at the well at a price equivalent to the actual value of such crude oil or petroleum” (section 2), as determined by the corporation commission. No provision is made prohibiting an operator from shooting his wells (Thornton on Oil & Gas [3d Ed.] vol. 1, § 33) and thereby artificially increasing the production of oil therefrom, although his neighbor may not be able to shoot his wells. It is clear to my mind that section 4 is nothing more than a mere mask behind which to disguise the price-fixing features' of the statute. Section 4 clearly contemplates markets and not an equal distribution of the oil in a common pool. If “a just distribution, to arise from the enjoyment * * * of their privilege to reduce to possession,” using the. language of the Ohio Oil Co. Case, was the purpose of section 4 of the act, it is strange it did not provide for taking into consideration acreage in figuring out the proportionate taking. Yet section 4 says that an operator can take out “only such proportion of all crude oil and petroleum that may be produced therefrom, without waste, as the production of the well or wells of any such person, firm or corporation, bears to the total production of such common source of supply.” Acreage is ignored and an operator with two 5,000-barrel wells on 5 acres may take out of the common source of supply, under the provisions of section 4, as much oil as an operator with two 5,000-bar-rel wells on 20 acres in the same field. Proportionate taking per well is wholly inequitable if the Legislature intends to secure “a just distribution, to arise from the enjoyment * * * of their privilege to reduce to possession,” because the operator with 20 acres has four times as much privilege as the operator with 5 acres in the same field. As further evidence that section 4 is concerned with markets and not with proportionate taking, the commission is authorized “to prevent unreasonable discrimination in favor of any one such common source of supply as against another,” which must mean that the commission is authorized to prorate markets because we cannot attribute to the Legislature the absurdity involved in an authorization to the commission to prohibit, for instance, the Oklahoma City field, from draining the Seminole field or the Tonkawa field, separated by many miles and shown by the undisputed evidence to be incapable of draining any other field.

Severing section 2 from the act and declaring or conceding its uneonstitutionaiity does not take it out of the act when we come to ascertain the legislative intent. . An unconstitutional law or part of a law may be considered in order to ascertain the intent of the Legislature in another law or a part of the same law. Lewis’ Sutherland Statutory Construction (2d Ed.) vol. 2, § 452.

The Illinois Supreme Court, in Baird v. Hutchinson, 179 Ill. 435, 53 N. E. 567, 568, said: “The meaning of the legislature must be gathered from all they have said, as well from that which is ineffective for want of power as from that which is authorized by law.”

Mr. Justice Van Devanter, in Davis v. Wallace, 257 U. S. 478, 42 S. Ct. 164, 166, 66 L. Ed. 325, applied this rule and said that:' “Where an excepting provision in a statute is found unconstitutional, courts very generally hold that this does not work an enlargement of the scope or operation of other provisions with which that provision was enacted, and which it was intended to qualify or restrain.” The court in that ease also held that declaring a section of a statute unconstitutional “does not make the provision any the less a key to the intention of the Legislature.”

Section 2 permeates the whole statute. It is the foundation of the statute and without it sections 3 and 4 are too vague and uncertain to vest any power in the corporation commission to make the rules and regulations assailed in this ease. The act nowhere undertakes to vest the corporation commission with power to define waste. See Hewitt v. Board of Medical Examiners, 148 Cal. 590, 84 P. 39, 3 L. R. A. (N. S.) 896, 113 Am. St. Rep. 315, 7 Ann. Cas. 750; Cline v. Frink Dairy Co., 274 U. S. 445, 47 S. Ct. 681, 71 L. Ed. 1146.

As shown by the commission’s various orders from June 30, 1930, down to date, it has purported to find a market demand for the entire state of Oklahoma, and then no doubt acting under the last clause in section 4 of the act, allocated those markets between various fields, a thing I do not believe the Legislature can constitutionally authorize, as it in effect takes one man’s market and gives it to another. In the commission’s order of June 36, 1936, it found that the existing wells in Oklahoma following the 1st day of July would produce approximately 1,362,666 barrels per day, and “that the daily demand in Oklahoma is and will be approximately 656,-666 barrels per day during the months of July, August and September, 1936.” In the decretal part of the order it distributes this market among the various fields, naming them in a schedule setting forth their estimated potential and estimated aetual production. This same scheme was followed in the succeeding orders. The commission in finding that the market demand in Oklahoma for certain months was a certain number of barrels evidently meant a market at the posted price, th e then existing price, and not a market at a lower priee. It is true that there may not be a market for more than 656,606 barrels per day at $1.67 a barrel, whereas, there may be a market for one million barrels per day at 75 cents per barrel.

Collins, umpire for the state at large, testified that although he did not make recommendations lipón which the commission assigned market demand in the Oklahoma City field for the month of January, 1931, he did make recommendations for the Seminole and the balance of the state, and that although he had nothing to do with assigning market demands to the respective fields he made recommendations to the commission. On re-examination Collins testified that he tried to get an increase of the market demand for the Oklahoma City field, but that in doing so he never ■ considered the priee; that he never tried to get a market at a price below the posted price because it would be nearly impossible to find a seller; and that he had never considered it his business to try to get any market below the market price, all of which goes to show that the commission’s so-called findings of market demands were based on a finding of the ability to sell at the then posted priee and not at a lower price.

Defendants point to-the enormous waste of gas and casinghead gas in the Oklahoma City field and introduced D. B. Bow as a witness, who testified that at a valuation of 6 cents a thousand the total value of gas and gasoline wasted during the year would be $29,466,666 if the field were opened up. But the commission has made no order requiring the producers to operate their wells on such a gas-oil ratio as will conserve the gas. The commission’s orders have been directed at the suppression of the production of oil. During oral argument it was stated by counsel, and not denied, that the record before the special master shows that one 18-barrel oil well is operated under the commission’s rules in the Oklahoma City field at an expenditure of over 3,666,666 cubic feet of gas per barrel. The commission must therefore either have construed section 7964 of the Oklahoma Comp. Stats. 1921, as authorizing the waste of gas without restriction when produced from an oil well, or otherwise has refused to enforce the statute passed in 1915 embodied in sections 7926 to 7922, inclusive, of the Oklahoma Comp. Stats. 1921, prohibiting the production of natural gas in sueh manner and under sueh conditions as constitute waste and providing that “whenever natural gas in commercial quantities, or a gas bearing stratum, known to contain natural gas in such quantity, is encountered in any well drilled for ml or gas m this state, sueh gas shall be confined to its original stratum until such time as the same can be produced and utilized without waste, and all such strata shall be adequately protected from infiltrating waters.” Not having taken any steps to conserve the gas as authorized and directed by the Oklahoma Statutes of 1915, embodied in. sections 7926 to 7922, Oklahoma Comp. Stats. 1921, my conclusion is that the commission has not concerned itself with conservation of the natural resources but with the suppression of the production of oil in order to decrease the supply and thus increase the price.

The statutes involved in Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160; Ohio Oil Co. v. Indiana, 177 U. S. 190-202, 20 S. Ct. 576, 44 L. Ed. 729, and Walls v. Midland Carbon Co., 254 U. S. 300, 41 S. Ct. 118, 65 L. Ed. 276, were enacted to prevent physical waste or the wasteful utilization of the oil or gas or water. There is no contention in this case that the complainant has wasted or will waste any of the oil or use it for a purpose other than useful.

In view of the fact that the Oklahoma Act does not (a) take into consideration acreage, or (b) prohibit the use of pumps to create an excessive flow of oil, or (c) closing offset well or wells when a stoppage of an adjoining operator’s well is caused by losing the easing or other accident, or (d) make any provisions for equitable taking except “where the full production from any common source of supply of crude oil or petroleum * * * can only be obtained under conditions constituting waste,” which must mean where there is not a sufficient market at a fixed price for all the oil, I conclude that the act and the orders of the commission made in pursuance thereof were intended to accomplish one result and that is price-fixing by regulating the law of supply and demand by statute and rules of the commission.

In McMillan et al. v. Railroad Commission of Texas et al. (D. C.) 51 F.(2d) 400, a recent decision by three federal judges, the court declined to be deceived by the railroad commission’s proration orders purporting to have been made under the authority of the Texas oil conservation statute. Circuit Judge Hutcheson, speaking for the court composed of himself and District Judges West and Bryant, said:

“Presumptively valid though such acts are, courts, bound to give effeet not to fictions, but to realities, may not, in construing them, close their eyes to what all men can see. Disregarding pretense, subterfuge, and chicóme, courts must, looking through form to substance, ascertain the true purpose of a statute not from its recitals of purpose, but from the operation and effect of it as applied and enforced. Smith v. [St. Louis & S. W.] Ry. Co., 181 U. S. 248, 21 S. Ct. 603, 45 L. Ed. 847; Bailey v. Drexel Furn. Co., 259 U. S. 20, 42 S. Ct. 449, 66 L. Ed. 817, 21 A. L. R. 1432; Lochner v. New York, 198 U. S. 64, 25 S. Ct. 539, 49 L. Ed. 937, 3 Ann. Cas. 1133; Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct. 625, 67 L. Ed. 1042,, 29 A. L. R. 1446; Henderson v. New York, 92 U. S. 259, 23 L. Ed. 543; Chy Lung v. Freeman, 92 U. S. 275, 23 L. Ed. 550. * * *
“Especially must this be so when, as here, under the thinly veiled pretense of going about to prevent physical waste the commission has, in co-operation uñth persons interested in radsing and maintaining prices of oil and its refined products, set on foot a plan which, seated in a desire to bring supply within the compass of demand, derives its impulse and springs from, and finds its scope and its extent in the attempt to control the delicate adjustment of market supply and demand, in order to bring and keep oil prices up.” (Italics mine.)

In Near v. State of Minnesota, 283 U. S. 697, 51 S. Ct. 625, 628, 75 L. Ed. 1357, Mr. Chief Justice Hughes, speaking for the court, said: “With respect to these contentions it is enough to say that in passing upon constitutional questions the court has regard to substance and not to mere matters of form, and that, in accordance with familiar principles, the statute must be tested by its operation and effect. Henderson v. Mayor [of New York], 92 U. S. 259; 268, 23 L. Ed. 543; Bailey v. Alabama, 219 U. S. 219, 244, 31 S. Ct. 145, 55 L. Ed. 191; United States v. Reynolds, 235 U. S. 133, 148, 149, 35 S. Ct. 86, 59 L. Ed. 162; St. Louis Southwestern Railway Co. v. Arkansas, 235 U. S. 350, 362, 35 S. Ct. 99, 59 L. Ed. 265; Mountain Timber Company v. Washington, 243 U. S. 219, 237, 37 S. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642.”

I think the above rule should be applied in this ease, and if applied it is plain that the purpose of the act and the commission’s rules and regulations is to control prices of crude oil.

Special counsel, appointed by the Governor of the State to appear and represent the interest of the state on the trial of this case, stated in his brief and in his oral argument that the practice of employing umpires, charged with the duty of executing the orders of the commission, under the control of monopoly and paid by the Operator’s Committee, was iniquitous. It is' a matter of common knowledge that the Governor of the State, just a few days prior to the final arguments on submission of this ease to the court for decision, issued a public proclamation advising the purchasers of crude oil that unless the price was raised to $1 per barrel he would close down by executive order all the prorated wells in the oil fields of Oklahoma and call out the State Militia to enforce such order. It^js a fact that he has executed such order by placing the wells of the complainant, and other producers, under martial law for the reason that the price of oil has not been raised to $1 per barrel, and he bases his authority for such action on the provisions of the act in controversy. This constitutes a construction of the act in question by the executive officers of the state. If there ever existed any doubt as to the intent of the Legislature in vesting the corporation commission with authority to enter proration orders restricting the production of oil and gas from “any common source of supply,” which has involved the production of oil in so much uncertainty, surely no such doubt any longer exists. The act does not define “common source of supply,” nor does the evidence shed any satisfactory light upon what is a “common source of supply.” It only subjects the oil producer, under the circumstances involved, to speculation and conjecture and forces him to market his oil at the price determined by the commission to be in accordance with reasonable market demands.

■ The Supreme Court of the United States, in Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, held that public officers charged with the administration of a law, thus representing the state itself, may so oppressively enforce the law so as to amount to a practical denial of the equal protection of the laws secured by the Fourteenth Amendment to the Constitution of the United States. The court at page 373 of 118 U. S., 6 S. Ct. 1064, 1073, said: “Though the law itself be fair on its face, and impartial in appliance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.”

It does not only appear from the evidence introduced in this case that the orders of the commission are grossly discriminatory, but we have the solemn admission of counsel representing the Govemer of the State that the law in its operation under the sanction of the commission is administered under the control of monopoly. Furthermore, it appears from the official pronouncements of the Governor of the State that he assumes the act authorizes price-fixing and on that construction of the act he has fixed a minimum price of $1 per barrel and has closed the oil fields until that price is paid. In addition to the admission of counsel for the Governor that the administration of the law is under the domination of monopoly, the evidence discloses that the umpires, acting as the agents of the defendants in the administration of the law and in violation of the publje policy of the state, are receiving lucrative salaries, one in the sum of $24,000 per year, with a large expense account, and the other in the sum of $7,200 per year, from operating companies in the prorated oil fields^ and that the orders of the commission are based substantially upon information and evidence furnished by such umpires. Section 1570, C. O. S., 1921, makes it an offense for any executive officer to receive any emolument, gratuity, or reward for attempting or deferring the performance of any official duty, and the person violating the same is guilty of a misdemean- or. Section 1561, C. O. S., 1921, makes any person who executes any of the functions of a public office without having taken and duly filed the oath of office as required, guilty of a misdemeanor, and forfeits his right to such office. Umpires acting as agents of the corporation commission are public officers when appointed and selected in the manner required by the act. The manner of selection and payment of the umpires charged with the duty of administering the law is contrary to public policy and sound morals, and sufficient to render the orders of the commission so administered as violative of the constitutional rights of the complainant. To say that the Legislature has been in session since the practice has been followed and has not corrected the evil is no protection to the complainant. See Somerset Bank v. Edmund, 76 Ohio St. 396, 81 N. E. 641, 11 L. R. A. (N. S.) 1171, 10 Ann. Cas. 726.

In Tumey v. Ohio, 273 U. S. 510, 47 S. Ct. 437, 441, 71 L. Ed. 749, 50 A. L. R. 1243, in an opinion by Mr. Justice Taft, the court said: “But it certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his ease.” Manifestly it is unfair to the complainant to be controlled by an umpire in the production of its oil, selected by and paid by its competitors. Such a course of conduct is unfair and fundamentally unsound, and the orders of the commission authorizing any such course of conduct should be stricken down as violative of due process of law.

The commission’s power under section 4 of the act remains in a state of suspension until a legal gauge of each well has been made as required by section 5 of the act. The commission eannot delegate to the individual operators, private persons, the power to gauge their own wells under the supervision of umpires paid by private persons and corporations. Before the commission can make and enforce any order or rule under section 4, if that section is valid, it must cause a gauge of the wells to be made by some state official or employee of the commission. It eannot delegate that authority to the operators and make the report of the operators to the umpire conclusive evidence of the potential production of the wells. No operator can determine the amount he is permitted to withdraw from the common source of supply “whenever the full production from any common source of supply of crude oil or petroleum * * * can only be obtained under the conditions constituting waste,” or determine what is an equitable and fair taking from a common souree of supply until all the wells in the field have been legally gauged. The commission could not delegate the authority to gauge wells to the Operators’ Committee or to the operators themselves.

In State v. Crawford, 104 Kan. 141, 177 P. 360, 2 A. L. R. 880, the court said that “the Legislature eannot delegate to private individuals and private associations of persons the power to make obligatory rules concerning the management and care of property, nor provide that the breach of such rules shall be a penal offense.”

This principle is upheld in Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U. S. 116, 49 S. Ct. 50, 73 L. Ed. 210, and Eubank v. Richmond, 226 U. S. 137, 33 S. Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123.

In my opinion complainant is entitled to a permanent injunction restraining the defendants from enforcing the rules and regulations in so far as they restrict the plaintiff’s right to produce oil from its wells so long as it ean do so without committing actual waste. The consuming public is entitled to purchase the refined products of crude oil in markets free from the control of monopoly and where fair competition prevails.

       “Section 1. Waste prohibited. That the production of crude oil or petroleum in the State of Oklahoma, in such manner and under such conditions as to constitute waste, is hereby prohibited.
      “Section 2. Production and sale regulated — corporation commission. That the taking of crude oil or petroleum from any oil-bearing sand or sands in the State of Oklahoma at a time when there is not a market demand therefor at the well at a price equivalent to the actual value of such crude oil or petroleum is hereby prohibited, and the actual value of such crude oil or petroleum at any time shall be the average value as near as may be ascertained in the United States at retail of the by-products of such crude oil or petroleum, when refined less the cost and a reasonable profit in the business of transporting, refining and marketing the same, and the Corporation Commission of this State is hereby invested (vested?) with the authority and power to investigate and determine from time to time the actual value of such crude oil or petroleum by the standard herein provided, and when so determined said Commission shall promulgate its findings by its orders duly made and recorded, and publish the same in some newspaper of general circulation in the State.
      “Section 3. Waste defined — protection. That the term 'waste’ as used herein, in addition to its ordinary meaning, shall include economic waste, underground waste, surface waste, and -waste incident to the production of crude oil or petroleum in excess of transportation or marketing facilities or reasonable market demands. The Corporation Commission shall have authority to make rules and regulations for the prevention of such wastes, and for <the protection of all fresh water strata, and oil and gas bearing strata, encountered in any well drilled for oil.
      “Section 4. Production regulated — discrimination of purchaser prohibited. That whenever the full production from any common source of supply of crude oil or petroleum in this State can only be obtained under conditions constituting waste as herein defined, then any person, firm or corporation, having the right to drill into and produce oil from any such common source of supply, may take therefrom only such proportion of all crude oil and petroleum that may be produced therefrom, without waste, as the production of the well or wells of any such person, firm or corporation, bears to the total production of such common source of supply. The Corporation Commission is authorized to so regulate the taking of crude oil or petroleum from any or all such common sources of supply, within the State of Oklahoma, as to prevent the inequitable or unfair taking, from a common source of supply, of such crude oil or petroleum, by any person, firm, or corporation, and to prevent unreasonable discrimination in favor of any one such common source of supply as against another.
      “Section 5. Wells gauged — governor to consent. That for the purpose of determining such production, a gauge of each well shall be taken under rules and regulations to be prescribed by the Corporation Commission, and said Commission is authorized and directed to make and promulgate, by proper order, such other rules and regulations, and to employ or appoint such agents with the consent of the Governor, as may be necessary to enforce this act.
      “Section 6. Enforcement of act — hearings before corporation commission. That any person, firm, or corporation, or the Attorney General on behalf of the State, may institute proceedings before the Corporation Commission, or apply for a hearing before said Commission, upon any question relating to the enforcement of this act, and jurisdiction is hereby conferred* upon said Commission to hear and determine the same. Said Commission shall set a time and place, when and where such hearing shall be had and give reasonable notice thereof to all persons or classes interested therein, by publication in some newspaper or newspapers, having general circulation in the State, and in addition thereto, shall cause reasonable notice in writing to be served personally on any person, firm or corporation complained against. In the exercise and enforcement of such jurisdiction, said Commission is authorized to determine any question or fact, arising hereunder, and to summon witnesses, make ancillary orders, and use mesne and final process, including inspection and punishment as for contempt, analogous to proceedings under its control over public service corporations, as now provided by law.
      “Section 7. Appeals to supreme court — effect on orders. That appellate jurisdiction is hereby conferred upon the Supreme Court in this State to review the action of said Commission in making any order, or orders, under this act. Such appeal may be taken by any person, firm or corporation, shown by the record to be interested therein, in the same manner and time as appeals are allowed by law from other orders of the Corporation Commission. Said orders so appealed from shall not be superseded by the mere fact of such appeal being taken, but shall be and remain in full force and effect until legally suspended or set aside by the Supreme Court.
      “Section 8. Penalty for violation. That in addition to any penalty that may be imposed by the Corporation Commission for contempt, any person, firm, or corporation, or any officer, agent or employee thereof, directly or indirectly violating the provisions of this act, shall be guilty of a misdemeanor, and upon conviction thereof, in a court of competent jurisdiction, shall be punished by a fine in any sum not to exceed five thousand dollars ($5,-000.00), or by imprisonment in the county jail not to exceed thirty (30) days, or by both fine and imprisonment.
      “Section 9. State may secure receiver — extent and manner. That in addition to any penalty imposed under the preceding section, any person, firm or corporation, violating the provisions of this act, shall be subject to have his or its producing property placed in the hands of a receiver by a court of competent jurisdiction, at the suit of the State through the Attorney" General, or any county attorney, but such receivership shall only extend to the operating of producing wells and the marketing of the production thereof, under the provisions of this act.
      “Section 10. Validity of relative sections of act. That the invalidity of any section, sub-division, clause or sentence of this act shall not in any manner effect the validity of the remaining portion thereof.”


author: SANBORN, District Judge.

text:
    E. E. ATKINSON & CO. v. UNITED STATES.
    No. 2165.
    District Court, D. Minnesota, Fourth Division.
    May 29, 1931.
    Robert M. Works, of Minneapolis, Minn., for plaintiff.
    Lewis L. Drill, U. S. Atty., of St. Paul, Minn., and M. W. Goldsworthy, Sp. Asst, to U. S. Atty., C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, Ralph E. Smith, Sp. Atty., Bureau of Internal Revenue, and D. Louis Bergeron, Sp. Atty., Bureau of Internal Revenue, all of Washington, D. C., for the United States.
   SANBORN, District Judge.

This is an action to recover interest claimed to be due on an overpayment of taxes for the fiscal year ended January 31,1921, credited against an additional assessment of tax for the fiscal year ended January 31, 19191

The plaintiff is a Minnesota corporation, which kept its books on the fiscal year plan, and filed returns as required by law. The Commissioner of Internal Revenue made an audit of the plaintiff’s returns, and on February 10, 1926, advised the plaintiff that the audit disclosed deficiencies in tax for the fiscal year ended January 31, 1919, amounting to $21,505.70, and for the fiscal year ended January 31, 1920, in the sum of $1,420.-01, and an overassessment for the year ended January 31, 1921, in the sum of $10,328.-56. The plaintiff was advised that if it ae- ’ quiesced in the Commissioner’s determination, it might sign an agreement consenting to the deficiency. This it did on February 13, 1926, and on the 18th day of that month filed the agreement with the Commissioner of Internal Revenue. On February. 18, 1926, amended returns were filed with the collector for the years ended January 31, 1919, and January 31, 1920. With the amended return for the year ended January 31, 1919, the plaintiff filed a claim for credit of $13,091.45. With the amended return for the year ended January 31, 1920, it filed a claim for credit amounting to $85.51. At the same time it delivered to the collector a check for $9,-748.75, the balance claimed by the plaintiff to be due after the application of the claimed credits. The $9,748.75 was credited to the plaintiff by the collector on collector’s suspense account.

On April 26, 1926, the Commissioner made an additional assessment against the plaintiff for the year ended January 31, 1919, in the sum of $21,505.70, plus interest amounting to $215.06, being at the rate of 6 per eent. from February 26, 1926, to April 26, 1926. On April 26, 1926, the Commissioner made an additional assessment against the plaintiff for the year ended January 31, 1920, in the sum of $1,420.01, with interest of $14.20, being 6 per cent, from February 26th to April 26th.

On April 27, 1926, the Commissioner signed a schedule of overassessments, on which appeared an overassessment amounting to $85.51 for the year ended January 31,1918, and an overassessment of $10,328.-56 for the fiscal year ended January 31,1921. This schedule was transmitted to the collector, who applied the overassessments as credits against the additional assessment for the year ended January 31, 1919. The balance of the tax for that year was discharged by transferring the $9,748.65 from the suspense account and by the payment of the balance in cash by the plaintiff. No interest was allowed on the overassessments applied as credits.

The plaintiff contends that the overas-sessments were allowed on February 10,1926, and prior to the passage of the Revenue Act of that year, and that interest should be computed upon overpayments in accordance with section 1019 of the Revenue Act of 1924 (26 USCA § 153 note). The defendant contends that the credits were allowed when the Commissioner signed the schedule of overassessments on April 27, 1926, and that therefore the plaintiff was not entitled to interest under section 1116 of the Revenue Act of 1926 (44 Stat. 119 [26 USCA § 153 note]), which provides: “(a) Upon the allowance of a credit or refund of any internal-revenue tax erroneously or illegally assessed or collected, or of any penalty collected without authority, or of .any sum which was excessive or in any manner wrongfully collected, interest shall be allowed and paid on the amount of such credit or refund at the rate of 6 per centum per annum from the date such tax, penalty, or sum was paid to the date of the allowance of the refund, or in the ease of a credit, to the due date of the amount against which the credit is taken, but if the amount against which the credit is taken is an additional assessment made under the Revenue Act of 1921, the Revenue Act of 1924, or this Act (February 26,1926), then to the date of the assessment of that amount.”

The Revenue Act of 1926 (44 Stat. 9) became effective on February 26, 1926.

The cases of United States v. Swift & Co., 282 U. S. 468, 51 S. Ct. 202, 75 L. Ed. 464, and United States v. Boston Buick Co. (United States v. Iron Cap Copper Co.), 282 U. S. 476, 51 S. Ct. 206, 75 L. Ed. 470, hold that the act of the Commissioner in approving the schedule of refunds and credits constitutes the allowance of a claim for credit, and that interest on such credits should be calculated under the act which is then in effect.

Therefore, in this case the plaintiff is not entitled to interest as provided for under the Revenue Act of 1924.

Finding the facts and the law to be as above stated, I reach the conclusion that the defendant is entitled to a judgment of dismissal with costs. Judgment may be entered accordingly.