CALIFORNIA CO. v. ST. OIL GAS BD

Wells, Wells, Newman Thomas, and W.N. Ethridge, Jr., of Jackson, and Engle Laub, of Natchez, for appellant.

The statutory grant in Section 6136 of the Code of 1942 to any "party" of the right to appeal and a trial de novo in the circuit court from a decision of the State Oil and Gas Board is good, valid and constitutional and the circuit court erred in sustaining the motion to dismiss appellant's appeal to the circuit court.

Illinois Cent. R. Co. v. Dodd, 105 Miss. 23, 61 So. 743; Dixie Greyhound Lines, Inc., v. Mississippi Railroad Commission, 174 Miss. 1, 163 So. 443; Knox v. L.N. Dantzler Lumber Co., 148 Miss. 834, 114 So. 873; Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579, 1 So.2d 489; City of Jackson v. McLeod, 199 Miss. 676, 24 So.2d 319; American Express Co. v. Beer, 107 Miss. 528, 65 So. 575; Southern Express Co. v. Longinotti (Miss.), 65 So. 583; Campbell v. Mississippi Union Bank, 6 How. (7 Miss.) 625; Enochs v. State ex rel. Robertson, 133 Miss. 107, 97 So. 534; 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., 22 F.2d 597; Magnolia Petroleum Co. v. Railroad Commission of Texas, 128 Tex. 189, 96 S.W.2d 273; Carr v. Stringer, 171 S.W.2d 920; Letwin v. Gulf Oil Corporation (Tex.), 164 S.W.2d 234; Carter v. Sun Oil Co., 189 S.W.2d 482; Interstate Commerce Commission v. Illinois Cent. R. Co., 215 U.S. 452, 30 S.Ct. 155, 54 L.Ed. 280; Interstate Commerce Commission v. Union Pacific R. Co., 222 U.S. 541, 32 S.Ct. 108, 56 L.Ed. 308; Keller v. Potomac Electric Power Co., 261 U.S. 428, 67 L.Ed. 731; Federal Radio Commission v. General Electric Co., 281 U.S. 464, 74 L.Ed. 969; Federal Radio Commission v. Nelson Brothers Bond Mortgage Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166, 89 A.L.R. 406; Rogers v. Public Service Commission, 110 W. Va. 649, 159 S.E. 834; Danielly v. City of Princeton, 113 W. Va. 252, 167 S.E. 620; Borreson v. Department of Public Welfare, 368 Ill. 425, 14 N.E.2d 485; Baltimore O.R. Co. v. United States, 298 U.S. 349, 56 S.Ct. 797, 80 L.Ed. 1209; Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598; Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938; Chin Yow v. United States, 208 U.S. 8, 28 S.Ct. 201, 52 L.Ed. 369; Choctaw Nation v. United States, 119 U.S. 1, 7 S.Ct. 75, 30 L.Ed. 306; Denver R.G.W.R. Co. v. Public Service Commission, 98 Utah 431, 100 P.2d 552; Kessler v. Strecker, 307 U.S. 22, 83 L.Ed. 1082, 59 S.Ct. 694; Federal Trade Commission v. Curtis Pblishing Co., 260 U.S. 568, 43 S.Ct. 210, 67 L.Ed. 408; United States v. Ritchie, 17 How. (U.S.) 525, 15 L.Ed. 236; Grisar v. McDowell, 6 Wallace (U.S.) 363, 18 L.Ed. 863; Alabama Public Service Commission v. Mobile Gas Co., 213 Ala. 50, 104 So. 538; Liu Hop Fong v. United States, 209 U.S. 453, 28 S.Ct. 576, 52 L.Ed. 888; Batesville v. Ball, 100 Ark. 496, 140 S.W. 712; McKeon v. Council Bluffs, 206 Iowa 556, 221 N.W. 351, 62 A.L.R. 1006; Railroad Commission (Trem Carr) v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022; Cook Drilling Co. et al. v. Gulf Oil Corporation (Tex.), 161 S.W.2d 1035; Code of 1942, Sec. 6179; 3 Am. Jur. 356, Sec. 815; 11 Am. Jur., 846, Sec. 156; 42 Am. Jur., Public Administrative Law, Secs. 223, 224, 226.

All presumptions should be indulged in favor of the validity of the statute, and its unconstitutionality must appear beyond a reasonable doubt before it will be held to be invalid. The court should give such a construction to the statute, if possible, as will uphold it.

Smith County v. Eastman Gardner Co. (Miss.), 53 So. 7; Beasley v. McElhaney (Miss.), 53 So. 8; Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1; Hinds County v. Johnson, 133 Miss. 591, 98 So. 95; Shilling v. State, 143 Miss. 709, 109 So. 737; Tucker Printing Co. v. Board of Sup'rs of Attala County, 171 Miss. 608, 158 So. 336; State v. Roell et al., 192 Miss. 873, 7 So.2d 867; 4 Mississippi Digest, Constitutional Law, Key No. 48; 11 Am. Jur., Constitutional Law, pp. 776, 780-790, Sec. 128.

The action of the State Oil and Gas Board in hearing and passing on the location of a drilling site constitutes a judicial or a quasi judicial function, and hence an appeal with trial de novo therefrom is not violative of any exclusively legislative or executive and administrative function.

Knox v. L.N. Dantzler Lumber Co., supra; City of Jackson v. McCardle's Estate, 189 Miss. 781, 198 So. 736; Stuart v. Board of Sup'rs, 195 Miss. 1, 11 So.2d 212; Gulf S.I.R. Co. v. Adams, 85 Miss. 772, 38 So. 348; Illinois Cent. R. Co. v. Dodd, supra; Board of Sup'rs of Forrest County v. Melton, 123 Miss. 615, 86 So. 369; Power v. Robertson, 130 Miss. 188, 93 So. 769; Cumberland Tel. Tel. Co. v. State, 135 Miss. 835, 100 So. 378; Illinois Cent. R. Co. v. Miller, 141 Miss. 223, 106 So. 636; Illinois Cent. R. Co. v. Mississippi Railroad Commission, 143 Miss. 805, 109 So. 868; Board of Sup'rs of Marshall County et al. v. Stephenson (Miss.), 130 So. 684; Anderson v. Franklin County School Board, 164 Miss. 646, 146 So. 134; Dixie Greyhound Lines, Inc., v. Mississippi Railroad Commission, supra; Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, supra; Magee Truck Lines, Inc., v. Bond, 190 Miss. 428, 200 So. 586; 17 Mississippi Law Journal 127; 42 Am. Jur., Public Administrative Law, Secs. 38, 107.

Even if it should be assumed that the action taken by the State Oil and Gas Board was a purely legislative or executive and administrative function, still the circuit court had jurisdiction to review the order so made to determine whether the order was supported by substantial evidence, whether it was purely arbitrary and capricious and beyond the power of the Board to make, and whether it violated the constitutional rights of an interested party, namely appellant, and the circuit court should have heard evidence on those issues, and erred in not doing so.

Dixie Greyhound Lines v. Mississippi Public Service Commission, supra; Magee Truck Lines, Inc., v. Bond, supra; 42 Am. Jur., Public Administrative Law, Sec. 209.

The record on appeal from the State Oil and Gas Board to the circuit court is limited by Code Section 6136 to the petition and the order of the Board, and the trial court therefore erred in admitting testimony and evidence that no evidence was heard or taken by the said Board on appellant's petition to revoke its original order, since such testimony and evidence as immaterial to the issues on a statutory trial de novo before the circuit court.

Assuming testimony was admissible that the appellant offered no evidence to the Board at the time it presented its petition to revoke, it was not necessary in order for the State Oil and Gas Board to have jurisdiction of the petition to revoke its former order granting the special exception to the drilling rule that additional, repetitious evidence be heard anew; therefore the order of the Board denying the petition to revoke was an appealable order within Section 6136, Code of 1942.

The same issues and subject matter were involved both in the hearing on the original application of T.F. Hodge and in passing upon the California Company's petition to revoke the original order allowing the exception, and the two proceedings were so interwoven and interdependent that the Board could take judicial notice of the evidence presented by T.F. Hodge and the California Company in the original proceedings.

McCandless v. Clark et al., 172 Miss. 315, 159 So. 542; Bridgeman et al. v. Bridgeman, 192 Miss. 800, 6 So.2d 608; 31 C.J.S. 623-626, Sec. 50(c).

The State Oil and Gas Board is a quasi judicial agency of the State Government, and has more latitude than a court in hearing evidence and passing on issues; it may take judicial notice of any facts which it has obtained in the exercise of any of its functions, it is not bound solely by the common law rules of evidence, and, by taking judicial cognizance in its order denying the petition to revoke of the facts obtained in the original hearing on the application of T.F. Hodge, it was acting within its statutory powers as a quasi judicial board.

42 Am. Jur., Public Administrative Law, Secs. 112, 113, 114, 129, 130.

Appellee State Oil and Gas Board cannot attack the validity of its own jurisdiction and of its own order granting this special exception to its drilling rules, and is estopped from asserting that the order is not appealable to the circuit court; it may, of course, set aside that order if it thinks proper, but prior thereto the said order is an appealable order.

42 Am. Jur., Public Administrative Law, Sec. 178.

Since he was not injured or adversely affected in any way by the Board's order denying appellant's petition to revoke the prior order, but in fact benefited therefrom, and since both the original and the second order were obtained upon his request therefor, appellee T.F. Hodge cannot attack the jurisdiction of the Board in executing its order of November 21, 1945, and is estopped from doing so.

Valentine v. McGrath, 52 Miss. 112; 31 Am. Jur., Judgments, Secs. 432, 582.

Appellant was such a party to the proceedings within the terms of the statute as to have the right to appeal.

Texas Trading Co. et al. v. Stanolind Oil Gas Co., 161 S.W.2d 1046; Blair v. Board of Trustees, Trinity I. School District (Tex.), 161 S.W.2d 1030; Railroad Commission of Texas v. Magnolia Petroleum Co. (Tex.), 109 S.W.2d 967.

This case has not become moot.

Moore v. White, 161 Miss. 390, 137 So. 99; Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81; Sartin v. Barlow ex rel. Smith, 196 Miss. 159, 16 So.2d 372; Spencer v. Washington County, 92 Miss. 230, 45 So. 863; Humble Oil Refining Co. v. Railroad Commission (Tex.), 68 S.W.2d 622; Brown et al. v. Humble Oil Refining Co., 126 Tex. 296, 83 S.W.2d 935; Gulf Production Co. v. Railroad Commission et al. (Tex.), 84 S.W.2d 359; Arkansas Fuel Oil Co. et al. v. Reprimo Oil Co. (Tex.), 91 S.W.2d 381; Turnbow et al. v. Barnsdall Oil Co. et al., 99 S.W.2d 1096; 3 Am. Jur., Appeal and Error, Secs. 733, 743, p. 310-311; 1 Summers Oil Gas 214, Sec. 86.

Butler Snow, of Jackson, for appellees.

So much of Chapter 117, Laws of 1932 (Section 6136, Code of 1942), as purports to provide for an appeal to the circuit court from an order of the State Oil and Gas Board is violative of Sections 1, 2, 33, 144, 156 of the Constitution of the State of Mississippi, and is unconstitutional and void because it undertakes to confer non-judicial functions upon the court.

Code of 1942, Sec. 6136.

The State Oil and Gas Board acts in an administrative and legislative capacity.

Board of Sup'rs of Forrest County v. Melton, 123 Miss. 615, 86 So. 369; Cumberland Tel. Tel. Co. v. State, 135 Miss. 835, 100 So. 378; Amite County School Board v. Reese, 143 Miss. 880, 108 So. 439; Mabray v. School Board of Carroll County, 162 Miss. 632, 137 So. 105; Illinois Cent. R. Co. v. Dodd, 105 Miss. 23, 61 So. 743; Dixie Greyhound Lines, Inc., v. Mississippi Railroad Commission, 174 Miss. 1, 163 So. 443; Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579; Stone v. Farish, 199 Miss. 186, 23 So.2d 911; Mississippi Railroad Commissioner v. Mobile O.R. Co., 115 Miss. 101, 75 So. 778; Western Union Telegraph Co. v. Myatt, 98 F. 335; Colteryahn Sanitary Dairy v. Milk Control Commission, 332 Pa. 15, 1 A.2d 775, 122 A.L.R. 1049; Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 34 S.Ct. 359, 58 L.Ed. 713; Commonwealth v. Sisson, 189 Mass. 247, 75 N.E. 619, 1 L.R.A. (N.S.) 752; Oxford Oil Co. v. Atlantic Oil Producing Co. et al., 22 F.2d 597; Prentiss v. Atlantic Coast Line Co., 211 U.S. 216, 29 S.Ct. 67, 53 L.Ed. 150; Mutual Film Corp. v. Industrial Commission, 236 U.S. 230, 35 S.Ct. 387, 59 L.Ed. 552; Springer v. Phillippine Islands, 277 U.S. 189, 72 L.Ed. 845; Code of 1942, Secs. 6132, 6133, 6136, 6140, 6178; Code of 1942, Ch. 8; Constitution of 1890, Sec. 156; Laws of 1932, Ch. 117; 42 Am. Jur., Public Administrative Law, Sec. 29.

The statute in question attempts to impose legislative or administrative, and, therefore, non-judicial functions upon the court, and is therefore unconstitutional and void insofar as it purports so to do.

Lawson v. Jeffries, 47 Miss. 686; Henry v. State, 87 Miss. 1, 88 Miss. 843, 39 So. 856; Re Opinion of the Justices, 148 Miss. 427, 114 So. 887; Power v. Robertson, 130 Miss. 188, 93 So. 769; Board of Sup'rs of Forrest County v. Melton, supra; Cumberland Tel. Tel. Co. v. Mississippi Railroad Commission, supra; Mabray v. School Board of Carroll County, supra; Dixie Greyhound Lines, Inc., v. Mississippi Railroad Commission, supra; Mississippi Railroad Commission v. Mobile O.R. Co., supra; Anderson v. Franklin County School Board, 164 Miss. 646, 146 So. 134; Board of Sup'rs of Marshall County v. Stephenson (Miss.), 130 So. 684; Illinois Cent. R. Co. v. Railroad Commission, 143 Miss. 805, 109 So. 868; State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152; Dixie Greyhound Lines v. Mississippi Public Service Commission, supra; Knox v. L.N. Dantzler Lumber Co., 148 Miss. 834, 114 So. 873; Whittle v. City of Hattiesburg, 132 Miss. 808, 96 So. 741; City of Jackson v. McLeod, 199 Miss. 676, 24 So.2d 319; Magee Truck Lines, Inc., v. Bond, 190 Miss. 428, 200 So. 586; Ohio Oil Co. v. Indiana, 177 U.S. 90, 20 S.Ct. 576, 44 L.Ed. 729; Brown v. Humble Oil Refining Co., 126 Tex. 296, 83 S.W.2d 935, 99 A.L.R. 1107; Railroad Commission v. Marathon Oil Co., 89 S.W.2d 517; Brown v. Humble Oil Refining Co., 87 S.W.2d 1069, 101 A.L.R. 1393; Denver R.G.W.R. Co. v. Public Service Commission, 98 Utah 431, 100 P.2d 552; Interstate Commerce Commission v. Illinois Cent. R. Co., 215 U.S. 452, 30 S.Ct. 155, 54 L.Ed. 280; Interstate Commerce Commission v. Union Pacific R. Co., 222 U.S. 541, 32 S.Ct. 108, 56 L.Ed. 308; State v. Johnson, 61 Kan. 803, 60 P. 1068; Keller v. Potomac Electric Power Co., 261 U.S. 428, 67 L.Ed. 731; Federal Radio Commission v. General Electric Co., 281 U.S. 464, 74 L.Ed. 969 Federal Radio Commission v. Nelson Brothers Bond Mortgage Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166, 89 A.L.R. 406; Re Fredericks 285 Mich. 262, 280 N.W. 464, 125 A.L.R. 259; Sterling Refining Co. v. Walker, 165 Okla. 45, 25 P.2d 312; Colteryahn Sanitary Dairy v. Milk Control Commission of Pennsylvania, supra; Steenerson v. Great Northern R. Co., 69 Minn. 353, 375, 72 N.W. 713, 716; Tagg Bros. Moorhead v. United States, 280 U.S. 420, 74 L.Ed. 524; Hodges et al. v. Public Service Commission, 110 W. Va. 649, 159 S.E. 834; Danielley v. City of Princeton, 113 W. Va. 252, 167 S.E. 620; Borreson v. Department of Public Welfare, 368 Ill. 425, 14 N.E.2d 485; City of Aurora v. Schoberlein, 230 Ill. 446, 82 N.E. 860; Prentiss v. Atlantic Coast Line Co., supra; Code of 1942, Secs. 1196, 1207, 6136, 7699, 8910; Constitution of 1890, Art. 1, Secs. 1, 2, 33, 144, 156; 14 Mississippi Law Journal, p. 312-328; 1 Summers Oil Gas 210; Vernon's Anno. Civil Statutes, Art. 6049 (c), Sec. 8; Landis, The Administrative Process, p. 127; 11 Am. Jur. 876, Sec. 180; 14 Am. Jur. 256, 258, Sec. 20; 42 Am. Jur., Public Aministrative Law, Secs. 219, 220, 222, 223, 226; 11 C.J.S. 503; 16 C.J.S. 503.

The provision for a trial de novo is not separable from the other provisions for appeal and the entire provision for an appeal is invalid.

State v. Jackson, 143 Miss. 745, 109 So. 724; American Express Co. v. Beer, 107 Miss. 528, 65 So. 575; Hodges v. Public Service Commission, supra; 11 Am. Jur. 849, Sec. 157.

Upon the hearing of the petition to revoke the order of the State Oil and Gas Board of October 17, 1945, and upon which petition the order of November 13, 1945, is predicated, there was no evidence whatsoever offered or introduced before the State Oil and Gas Board, although full opportunity therefor was afforded, and there is nothing in the records to show that said order is beyond the power of the commission to make or that the same violates any statutory or constitutional right of the California Company, and there is no substantial question of law or fact involved in this appeal.

Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, supra; City of Jackson v. McLeod, supra; Pacific States Box Basket Co. v. White, 296 U.S. 176, 80 L.Ed. 138; Railroad Commission v. Magnolia Petroleum Co., 109 S.W.2d 967; 3 Am. Jur. 675, Sec. 1164; 42 Am. Jur. 682, Sec. 240.

Pursuant to the special permit granted him by the State Oil and Gas Board, Hodge has completed a producing oil well on the lands in question, and the question of whether he should have been granted the permit is now moot.

Sartin v. Barlow ex rel. Smith, 196 Miss. 159, 16 So.2d 372, 376; Witherspoon v. State, 138 Miss. 310, 103 So. 134; Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407; Gulley v. Lumbermen's Mutual Casualty Co., 176 Miss. 388, 405, 166 So. 541; Mississippi-Gulfport Compress Warehouses, Inc., v. Public Service Commission, 189 Miss. 166, 177, 196 So. 793; Jefferson Standard Life Ins. Co. v. Noble, 185 Miss. 360, 188 So. 289; Henley v. Kilbas, 188 Miss. 604, 195 So. 582, 583; Dantzler v. State Highway Commission, 187 Miss. 721, 193 So. 4, 5; Moran v. Murphy, 187 Miss. 633, 193 So. 29; State ex rel. Whall v. Saenger Theatres Corporation, 190 Miss. 391, 200 So. 442, 444; Crosby v. State, 191 Miss. 315, 2 So.2d 844; State ex rel. Collins v. Standard Construction Co. et al., 118 Miss. 469, 78 So. 625; Byrne Realty Co. v. Southern Florida Farms Co., 81 Fla. 805, 89 So. 318; Gilbert v. Weber, 19 S.W.2d 857; Code of 1942, Sec. 1960; 3 Am. Jur. 308, Sec. 733; 20 Am. Jur. 67, Sec. 44; 42 Am. Jur. 667, Sec. 230. Butler Snow, of Jackson, for appellees, on suggestion of error.

The Court erred in holding that this case in controlled by the opinion in the case of The California Company v. State Oil and Gas Board et al., No. 36163. If the Court had merely said that this particular case, insofar as it related to the propriety or authorization of the appeal, was controlled by the opinion in No. 36163, we would have no complaint to make. But the Court did not say this. The Court did say that this particular case was controlled by the opinion in No. 36163 and went further and reversed and remanded the case. What reason was there for a reversal and remand unless the case was to be tried anew in the circuit court? Under the opinion of No. 36163 the whole proceedings in this particular case were unauthorized by the statute.

Wells, Wells, Newman Thomas, and W.N. Ethridge, Jr., all of Jackson, Engle Laub, of Natchez, and Lucius M. Lamar, of New Orleans, La., for appellant, on suggestion of error.

See companion case, No. 36163, California Co. v. State Oil Gas Board et al., 200 Miss. 824, 27 So.2d 542.

Argued orally by W.N. Ethridge, Jr., for appellant, and by George Butler, Jr., for appellee.