Bradford. That is a dangerous coupling to make." (At Bradford the method of making the coupling was by means of pushing the caboose up against the train, instead of backing the train against the caboose.) To this Schlemmer replied, with emphasis, "Back up." He then proceeded to make the coupling, with the result stated. Another witness, the yard conductor, testified without contradiction, that just before the cars got together he walked up to Schlemmer, and told him they had better shove the caboose on by hand, to which he answered: "Never mind, I will make this coupling." To which the witness answered: "Well, you will have to get down." Witness testified that he called to him twice to get down, the last time not more than a second, possibly a couple of seconds, before he was injured. This witness furthermore testified that he had a sufficient crew to push the caboose up by hand, that there was plenty of force to shove the caboose up in that way; that that was a great deal safer way to make the coupling than backing onto the caboose. The testimony fur ther shows that there was plenty of room under the projection of the shovel car to operate the drawbar and raise it up. In fact, in this manner, the coupling was made a few minutes after the unfortunate occurrence which resulted in the death of the deceased. As the record is now presented, there is no proof in the case that the deceased was ordered to make the coupling in the manner he did, and there is testimony to the effect that, just before the injury, the conductor in charge of the train said to the deceased: "Mr. Schlemmer, you be very careful now, and keep your head down low, so as not to get mashed in between those cars." He said he would. In view of this record we cannot say that the court, in denying a recovery to the plaintiff, upon the ground of contributory negligence of the deceased, denied to her any rights secured by the Federal statute. Entirely apart from the question of assumption of risk, which, under the law, could not be a defense to the plaintiff's action, as the law then stood, there remained the defense of contributory negligence. After an examination of the record as was injured in spite of repeated cautions, made at the time, as to the great danger of being injured if he raised his head in attempting to make the coupling in the manner which he did. As we have said, the Federal question in the record, and the only one which gives us jurisdiction, is: Did the trial and judg ment deprive the plaintiff in error of rights secured by the Federal statute? The views which we have expressed require that the question be answered in the negative. The judgment of the Supreme Court of Pennsylvania is affirmed. COMMERCE ( 15*)—SUBJECTS OF NATURAL GAS. 1. Natural gas, when reduced to possession, is a commodity which belongs to the owner of the land, and may be the subject of both intrastate and interstate commerce. [Ed. Note.-For other cases, see Commerce, Cent. Dig. § 34; Dec. Dig. § 15.*] COMMERCE (§ 61*)-STATE REGULATIONPROHIBITING TRANSPORTATION OF NATURAL GAS-POLICE POWER. 2. Prohibiting the construction of pipe lines for natural gas, or the transportation of the gas by such lines except by domestic corporations, whose charters shall provide that the gas shall only be transported between points in the state, and shall not be transported to, nor delivered to, any person or corporation engaged in transporting or furnishing gas to points outside of the state, and giving to such domestic corporations the exclusive right of eminent domain and the use of the highways, all of which is attempted by Okla. Laws 1907, chap. 67,-unconstitutionally interferes with interstate commerce, and cannot be justified as an exercise of the police power of the state to conserve its natural resources. [Ed. Note. For other cases, see Commerce, Cent. Dig. §§ 81, 84, 89; Dec. Dig. § 61.*1 [No. 916.] 15, 1911. now presented, containing testimony not ad- Argued April 4 and 5, 1911. Decided May duced at the former trial, we strained to the conclusion that there was are con PPEAL from the Circuit Court of the ample ground for saying, as both the trial United States for the Eastern District court and the supreme court of the state of Pennsylvania did, that the decedent met his death because of his unfortunate attempt to make the coupling in a dangerous way, when a safer way was at the time called to his attention. Furthermore, he of Oklahoma to review a decree entered in a consolidated suit, enjoining the enforcement of a state statute prohibiting interstate transportation of natural gas. Affirmed. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 869. 669. *240 *239 See same case below on demurrer, 172 | foundation; that is, the right to buy, sell, Fed. 545. The facts are stated in the opinion. Messrs. Charles B. Ames and Charles West for appellant. Messrs. D. T. Watson, John G. Johnson, John J. Jones, and E. L. Scarritt for appellees. and transport natural gas in interstate commerce notwithstanding the provision of the statute. The suits were numbered in the court below 856, 857,*858, and 859. In 856 the Kansas Natural Gas Company was com. plainant. It is a corporation of the state of Delaware, and is engaged in the business *Mr. Justice McKenna delivered the of purchasing and distributing natural gas opinion of the court: This appeal brings up for review the decree entered in the circuit court of the United States for the eastern district of Oklahoma in four suits consolidated by stipulation of the parties. to consumers. It has a contract* for the purchase of all the gas that can be produced from a certain well in Washington county, Oklahoma, and has acquired by purchase the right of way over the land upon which the well is located for the laying of a pipe The suits had the common purpose of at-line for the transportation of the gas, and tacking the constitutional validity of a proposes to extend its trunk pipe lines from statute of Oklahoma, enacted in 1907, which the present southern terminus thereof in is referred to as chapter 67 of the Session the state of Kansas, southward across Laws of 1907. It is inserted in the margin the Oklahoma state line to the well. It in full. All of the bills have the same also proposes to construct lateral and †Chapter 67. Pipe Lines-Regulating | exercise the right of eminent domain withGas and Oil Pipe Lines. Article. 1. An Act Regulating the Laying, Construct ing, and Maintaining and Operation of Gas Pipe Lines for the Transportation of Natural Gas within the State of Oklahoma, Defining the Modes of Procedure for the Exercise of the Right of Eminent Domain for Such Purposes, Providing for the Inspection and Supervision of the Laying of Such Pipe Lines, and Limiting the Gas Pressure Therein, and Providing Penalties for the Violation Thereof. Be it enacted by the people of the state of Oklahoma: Section 1. Any firm, copartnership, association, or combination of individuals may become a body corporate under the laws of this state for the purpose of producing, transmitting, or transporting natural gas to points within this state by complying with the general corporation laws of the state of Oklahoma, and with this act. in this state for the purpose of constructing or maintaining a gas pipe line or lines within this state, or shall be permitted to take private or public property for their use within this state, unless expressly granted such power in accordance with this act. or Sec. 5. The laying, constructing, building, and maintaining a gas pipe line or lines for the transportation or transmission of natural gas along, over, under, across, through the highways, roads, bridges, streets, or alleys in this state, or of any county, city, municipal corporation, or any other private or public premises within this state, is hereby declared an additional burden upon said highway, bridge, road, street, or alley, and any other private or public premises, may only be done when the right is granted by express charter from the state, and shall not be constructed, maintained, or operated until all damages to adjacent owners are ascertained and paid as provided by law. Sec. 2. No corporation organized for the Sec. 6. All pipe lines for the transportapurpose of, or engaged in, the transportation or transmission of natural gas in this tion or transmission of natural gas within state shall be laid under the direction and this state, shall be granted a charter or inspection of proper persons skilled in such right of eminent domain, or right to use business, to be designated by the chief the highways of this state, unless it shall mining inspector for such duty, and the be expressly stipulated in such charter expenses of such inspection and supervision that it shall only transport or transmit shall be borne and paid for by the parties natural gas through its pipe lines to points laying and constructing such pipe lines for within this state; that it shall not connect the transportation or transmission of natwith, transport to, or deliver natural gas ural gas. to individuals, associations, copartnerships, companies, or corporations engaged in transporting or furnishing natural gas to points, places, or persons outside of this state. Sec. 3. Foreign corporations formed for the purpose of, or engaged in the business of, transporting or transmitting natural gas by means of pipe lines, shall never be licensed or permitted to conduct such business within this state. Sec. 4. No association, combination, co partnership, or corporation shall have or Sec. 7. No pipe line for the transportation or transmission of natural gas shall be subjected to a greater pressure than 300 pounds to the square inch, except for the purpose of testing such lines, and gas pumps shall not be used on any gas pipe line for the transportation or transmission of natural gas, or used on or in any gas well within this state. Sec. 8. Any corporation granted the right under the provisions of this act to exercise the right of eminent domain, or use *241 *242 *243 branch lines from the trunk line so extended, for the purpose of gathering and receiving such gas as it may be able to purchase from the owners of other wells. Its line will not be used in any way for local traffic, but only for the transportation of the gas from the wells in Oklahoma into the states of Kansas and Missouri. *In No. 857, the Marnet Mining Company, a corporation of West Virginia, is complainant. For the purpose of transporting the highways of this state to construct or maintain a gas pipe line or lines for the transportation or transmission of natural gas to points within this state, which shall transport or transmit any natural gas to a point outside of or beyond this state, or shall connect with or attempt to connect with or threaten to connect with any gas pipe line furnishing, transporting, or transmitting gas to a point outside of or beyond this state, shall by each or all of said acts forfeit all right granted it or them by the charter from this state, and said forfeiture shall extend back to the time of the commission of said act or said acts in violation of this act; and such act or acts shall of themselves work a forfeiture of any and all rights of any and every kind and character which may be or may have been granted by the state for the transportation or transmission of natural gas within this state, and all the property of said corporation and all the property at any time belonging to said corporation, at any time used in the construction, maintaining, or operation of said gas pipe line or lines, shall, in due course of law, be forfeited to and be taken into the possession of the state through its proper officer, and in said action there shall be a right to the state of the appointment of a receiver, either before or after the judg-owners to their lands. ment, to be exercised at the option of the state, and the officer taking possession of said property shall immediately disconnect said pipe line or lines at a proper point in this state from any pipe line or lines going out of or beyond the state. And said property shall be sold as directed by the court having jurisdiction of said proceedings, and the proceeds of said sale shall be applied, first to the payment of the cost of such proceeding, and the remainder, if any, paid into the school fund of the state, and said charter under which said act or acts were committed shall be revoked, and no charter for the transportation or transmission of natural gas shall ever be granted to any corporation having among its stockholders any person who was one of the stockholders of Sec. 11. All acts and parts of acts in said corporation whose charter has or may conflict with this act are hereby repealed. have been forfeited as aforesaid, and if any Sec. 12. An existing emergency is heresuch charter shall have been granted, and by declared by the legislature for the prethereafter a person shall become a stock-servation of the public peace, health, and holder thereof who was one of the stock- safety of the state. holders of the corporation whose charter has been or may have been forfeited, as herein provided, the charter of said corporation, one of whose stockholders is as last named, shall therefore be forfeited and revoked. from the producers of gas in the state of Oklahoma to purchasers and consumers in Kansas and Missouri, it has purchased a right of way over certain lands in the state, and proposes to construct a system of pipe lines to be used exclusively in such interstate transportation, and not in any way for local traffic. In No. 858, A. W. Lewis, a citizen and resident of the state of Ohio, is complainant. He is the owner of an oil and gas Provided, that any person who may be denied the right to become a stockholder as above prescribed may be granted the right to become such stockholder by the corporation commission, when such person shows to such commission that he was not a party to the former violation of this act. Sec. 9. No pipe lines for the transportation or transmission of natural gas shall be laid upon private or public property when the purpose of such line is to transport or transmit gas for sale to the public until the same is properly inspected as provided in this act; and before any gas pipe line company shall furnish or sell gas to the public, it shall secure from the inspector a certificate showing that said line is laid and constructed in accordance with this act, and under the inspection of the proper officer; provided that nothing in this act shall be construed to prevent persons drilling for oil and gas from laying surface* lines to ? transport or transmit gas to wells which are being drilled within this state, and further provided, that factories in this state may transport or transmit gas through pipe lines for their own use for factories located wholly within this state, upon securing the right of way from the state over or along the highways and from property Sec. 10. That no person, firm, or associa tion or corporation shall ever be permitted to transmit or transport natural gas by pipe lines in this state, or in this state construct or operate a pipe line for the transmission of natural gas, except such persons, firms, associations, or corporations be incorporated as in this act provided, except as in § 9 of this act, and provided further that all persons, firms, corporations, associations, and institutions now doing the business of transportation or transmission [of] natural gas in this state and otherwise complying with this act are hereby permitted to incorporate under the provi sions of this act within ten days after the passage and approval of the same. Sec. 13. This act shall take effect from and after its passage and approval, as provided by law. Approved December 21, 1907. 245 ⚫244 lease by which he has acquired the right to construct wells on a certain tract of land in Oklahoma, and to take gas therefrom for the period of fifteen years. He has constructed a well, in accordance with his lease, which is capable of producing many millions of cubic feet of gas per day, which, being in excess of the local demand, he is unable to sell in the state; and he alleges | that, being prevented from transporting it from the state, he has suffered great loss and damage, and is deprived of his property without compensation. In No. 859, O. A. Bleakley, a citizen and resident of Pennsylvania, is complainant. He has received from the Secretary of the Interior a right of way over the land of certain Indians over a designated route, paying to the Indian agent, by law and the rules and regulations of the Interior Department, the value of such right of way and the damages which the owners of the land over which he will pass for the laying and maintaining of a pipe line for the exclusive purpose of transporting natural gas from Oklahoma to Kansas. It is alleged in the bills that a great number of wells have been drilled in the state at great expense, which are capable of producing more than 1,000,000,000 cubic feet of gas per day; that such amount is more than necessary for the demands of the people of the state, and the excess of supply is required to meet the wants of those residing in Missouri and Kansas. This want, it is alleged, may be supplied through the distributing plants now constructed and those contemplated by complainants, but that under the present conditions the owners are required to cease development work, and to keep large and valuable wells capped and inoperative, to their great injury and damage. It is alleged that in constructing lines for such transportation it will not be necessary to go along the highways of the state, but only across or over them; and that the lines to be constructed will be private lines, will endanger the lives and property of no one, and will be constructed in just conformity with all reasonable rules and regulations of the state. It is averred that each of the defendants is charged, by virtue of his office, to execute the laws and Constitution of the state, and that he has undertaken to enforce the act hereinbefore referred to by proceedings in courts and by force of arms, and it is his intent and avowed purpose to prevent the transportation of gas beyond the limits of the state. The particular acts are set forth. The bills pray discovery, that the act above referred to be declared void as being in conflict with § 8, article 1, and the 14th Amendment of the Constitution of the United States, and that the defendants be enjoined from the things attributed to them. General relief is also prayed. Demurrers were filed to the bills, which were overruled (172 Fed. 545), and the defendants answered. It was subsequently stipulated that the causes be consolidated and that appellant file an amended answer in each of the cases, and the answers of the other defendants be withdrawn. It will only be necessary to consider the amended answer, not, however, its details either of denial or averment, but only of certain facts especially relied on. These are: The present daily capacity of the gas wells of the state is approximately 1 billion cubic feet, the daily consumption being more than can be safely taken from them "without rapidly destroying their efficiency and depleting this great natural resource of the state." The gas area of the state is found in oil-producing sand, and the experience of all other natural gas fields demonstrates that the gas found in and taken from such sand is of much shorter duration than that found in purely gas sand, and if the acts of complainants be permitted "the field will be exhausted in a very short time." While it is true that the gas in Oklahoma is found in a gas and oil-producing sand which extends underneath large contiguous areas of land, every well takes from this unbroken area and diminishes the producing capacity of every other well and of the entire field, the acts of the complainants, if permitted, will greatly damage and injury the entire field and take the property of all other owners therein, and "that the act of the legislature of the state of Oklahoma, alleged in the bill to be unconstitutional, was an effort on the part of the legislature of the state to preserve the natural gas field of the state from destructive waste." Certain cities of the states, which, by reason of their proximity to the gas field, should be supplied with gas, are not now supplied with it, and will never be if complainants are allowed to transport it from Oklahoma without regulation by laws of the state, and the population of the state is now 1,750,000, and is growing more rapidly than that of any other state in the Union. On account of the general prairie character of the state, it is without domestic fuel except coal and natural gas. Its supply of coal is growing rapidly more costly to produce, that the petroleum oil produced is practically transported from the state, "and that, substantially, the only natural, practical, usable fuel, both for domestic and industrial use, is natural gas." The complainants may and are actually *246 *247 It is admitted that there are maintained and operated in the state natural gas pipe lines; but it is alleged that they are in daily use for the transportation of gas within the state. And it is further admitted that they in many instances, and often at great length, run over, along, and across the highways of the state, and "are operated without hurt, hindrance, damage, or inconvenience to the traveling public or to abutting property owners." But it is averred that "they were laid and are operated according to the laws in force at the time, and pursuant to the laws of the state." in the process of erecting enormous pump- | exists in all other foreign corporations, and, ing stations outside of the state, which if exercised, lines will be extended, as one "might reasonably and would inevitably part of the field becomes exhausted. to other render entirely useless all the present lines parts of the field, and the lines supplying (gas) in Oklahoma, and take away from the cities of the state will also be extended the cities and towns of Oklahoma the entire in like manner and effect, and a speedy depractical use of their sole and natural fuel, struction of the supply of the gas in the because when gas is removed by the limited, state will result. prudent, and natural rock pressure, the nature and formation of the gas and oil sand is not radically changed, but if large pumps to pump out the wells, out of proportion to the rock pressure, are used, as are now actually threatened, by the complainant, the gas and oil sand is actually broken down as though shot with dynamite and other violence, and the salt water thereunder, always to be found, at once drowns out the wells, where rock pressure has been too greatly or rapidly decreased; that the use of the highways is a portion of the public property, and the same should be confined to those who supply all alike who may seek to be served; and because of its nature and extent, and because the enormous amount of capital needed to make practical investments tends to create monopolies. The business of gas transportation is a public business in interstate trade, over which Congress has never legislated, and to permit complainant to carry out its said attempt and intent to monopolize the natural gas of the state and transport it away without regulation by the state laws, over and across the state's highways, without the state's consent, would be to devote public property to private and exclusive use, against the principles of the Constitution of this state and the United States, and deprive the intending purchasers of natural gas in this state from all supply whatsoever." There are other allegations of the effect of contemplated acts of the complainants upon the gas supply of the state, and there are admissions that pipe lines are the only practical means of transportation; but this, it is alleged, is due to its cheapness as compared with other means of transportation, considering the price of gas as a fuel, as compared with other fuel products and the transportation of gas from other fields. And it is set forth that the highways of the state are open to the transportation of gas by any means which do not "make a permanent appropriation of any part of the highways by placing a plant in the same." It is further alleged that in order to supply the cities of the state with gas, lines are continually being extended, and that there are several other pipe lines which are seeking to carry on business in the state in the same manner as desired by complainant, and if the right exist in complainant, it Appellant admits that it is his duty to execute the laws of the state, and that it is his intention to enforce chapter 67 of the Session Laws of 1907 and 1908, and the acts amendatory and supplementary thereto "in so far as the same must or should be done by litigation in which the state is interested," but that his duties rest solely upon himself, and are not controlled by others, and that he intends to prevent solely by actions in competent courts the laying, constructing, and operating of gas pipe lines in, on, under, across, or along the highways of the state by complainant or by any other person not authorized so to do by the laws of the state. He denies the acts of force charged against him, or that he proposes to use force. The other denials and admissions it is not necessary to set out. prayed. A dissolution of the injunction is The cases were conosolidated, as we have said, and submitted on the bills and the answers, "to the end that an immediate determination thereof and final decree therein" might be obtained. A final decree was entered, declaring that the statute referred to "is unreasonable, unconstitutional, invalid, and void, and of no force or effect whatever," and a perpetual injunction was awarded against its enforcement. The basis of the decree of the court was that expressed in its opinion ruling upon the demurrers; to wit, that the statute of Oklahoma was prohibitive of interstate commerce in natural gas, and in consequence was a violation of the commerce clause of the Constitution of the United States, and that being, as the court said, its dominant purpose, it would, if enforced *249 248 |