on the ground that the welfare of the State will thereby be subserved. The results of the contention repel its acceptance. Gas, when reduced to possession, is a commodity; it belongs to the owner of the land, and, when reduced to possession, is his individual property subject to sale by him, and may be a subject of intrastate commerce and interstate commerce. The statute of Oklahoma recognizes it to be a subject of intrastate commerce, but seeks to prohibit it from being the subject of interstate commerce, and this is the purpose of its conservation. In other words, the purpose of its conservation is in a sense commercial-the business welfare of the State, as coal might be, or timber. Both of those products may be limited in amount, and the same consideration of the public welfare which would confine gas to the use of the inhabitants of a State would confine them to the inhabitants of the State. If the States have such power a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining States their minerals. And why may not the products of the field be brought within the principle? Thus enlarged, or without that enlargement, its influence on interstate commerce need not be pointed out. To what consequences does such power tend? If one State has it, all States have it; embargo may be retaliated by embargo, and commerce will be halted at state lines. And yet we have said that "in matters of foreign and interstate commerce there are no state lines." In such commerce, instead of the States, a new power appears and a new welfare, a welfare which transcends that of any State. But rather let us say it is constituted of the welfare of all of the States and that of each State is made the greater by a division of its resources, natural and created, with every other State, and those of every other State with it. This was the purpose, as it is the result, of the interstate commerce clause of the Constitution of the United States. If there is to be a turning backward it

must be done by the authority of another instrumentality than a court.

The case of State ex rel. Corwin v. Indiana & Ohio Oil, Gas and Mining Co., 120 Indiana, 575, is pertinent here. A statute of Indiana was considered which made it unlawful to pipe or conduct gas from any point within the State to any point or place without the State. It was assailed on one side as a regulation of interstate commerce, and therefore void under the Constitution of the United States. It was defended, on the other hand, as a provision for the exercise of the right of eminent domain, confining it to those engaged in state business, denying it to those engaged in interstate business, and, further, as imposing restrictions on foreign corporations. It will be observed, therefore, the statute had, it may be assumed, the same inducement as the Oklahoma statute, and the same special justifications were urged in its defense. The court rejected the defenses, and decided that the statute was not a legitimate exercise of the police power, or the regulation of the right of eminent domain or of foreign corporations, but had the purpose "plainly and unmistakably manifested" to prohibit transportation of natural gas beyond the limits of the State, and that this being its purpose it was void as a regulation of interstate commerce. These propositions were announced: (1) Natural gas is as much a commodity as iron ore, coal or petroleum or other products of the earth, and can be transported, bought and sold as other products. (2) It is not a commercial product when it is in the earth, but becomes so when brought to the surface and placed in pipes for transportation. (3) If it can be kept within the State after it has become a commercial product, so may corn, wheat, lead and iron. If laws can be enacted to prevent its transportation, "a complete annihilation of interstate commerce might result." And the court concluded: "We can find no tenable ground upon which the act can be sustained, and we are compelled to

adjudge it invalid." The case was explicitly affirmed in Manufacturers' Gas &c. Co. v. Indiana Natural Gas &c. Co., 155 Indiana, 545.

The case is valuable because the court through the same justice who wrote the opinion distinguished between an exercise of the police power to regulate the taking of natural gas and its prohibition in interstate commerce.

Jamieson v. Indiana Natural Gas Co., 128 Indiana, 555, sustained a statute prohibiting the taking of gas under a greater pressure than 300 pounds to the square inch. The court said that natural gas "is, no doubt, so far a commercial commodity that this State cannot prohibit its transportation to another State by direct legislation," citing State ex rel. Corwin v. The Indiana &c. Co., supra. The court said further: "If it can be taken from the well and transported to another State under a safe pressure the State cannot prohibit its transportation, nor can the State establish one standard of pressure for its own citizens and another standard for the citizens of other States." The court, therefore, discerning in the statute no discrimination and no prohibition but only a regulation universal in its application and justified by the nature of the gas and which allowed its transportation to other States, decided that there was no restriction or burden upon interstate

commerce.

Lindsley v. Natural Carbonic Gas Company, 220 U. S. 61, is to the same effect as Ohio Oil Company v. Indiana. Its similarity to the latter case was pointed out. Indeed, they can be said to be identical in principle. In the one case oil and gas, in the other mineral water and gas, were commingled beneath the surface of the earth and capable of movement and common ownership. In the one case the right was asserted to waste the gas to secure the oil which was the more valuable of the two; in the other case the right was asserted to waste the water to secure the gas as the more valuable of the two. In both cases there was VOL. CCXXI-17

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a statute forbidding the waste. Speaking of the purpose the statute in Lindsley v. Natural Carbonic Gas Company, it was said: "It is to prevent or avoid the injury and waste suggested that the statute was adopted. It is not the first of its type. One in principle quite like it was considered by this court in Ohio Oil Co. v. Indiana, 177 U. S. 190.” The statute was sustained upon the reasoning of that case.

Hudson County Water Co. v. McCarter, 209 U. S. 349, is urged, we have seen, on our attention. A statute of the State of New Jersey was involved, which made it unlawful for any person or corporation to transport or carry through pipes the waters of any fresh-water lake, river, etc., into any other State for use therein. Two propositions may be said to be the foundation of the decision of the court below sustaining the statute. (1) "The fresh-water lakes, ponds, brooks and rivers, and the waters flowing therein, constitute an important part of the natural advantages of the" State, "upon the faith of which its population has multiplied in numbers and increased in material welfare. The regulation of the use and disposal of such waters, therefore, if it be within the power of the State, is among the most important objects of government. (2) "The common law recognized no right in the riparian owner, as such, to divert water from the stream in order to make merchandise of it, nor any right to transport any portion of the water from the stream to a distance for the use of others." It was further declared that the common law authorized the acquisition of water "only by riparian owners, and for purposes narrowly limited. Not that the ownership is common and public." And the contention. was rejected that the title of the individual riparian owner was to the water itself-the fluid considered as a commodity-and exclusive against the public and against all persons excepting other riparian owners.

It is clear that neither of these propositions will support the contentions of the appellant in the case at bar. Nor

does any principle announced upon the review of the case here, though the power of the State to enact the statute was put "upon a broader ground than that which was emphasized below." The police power of the State was discussed and the difficulty expressed of fixing "boundary stones between" it and the right of private property which was asserted in the case. There were few decisions, it was said, that were very much in point. But certain principles were expressed, of which Geer v. Connecticut, 161 U. S. 519, was considered as furnishing an illustration and Kansas v. Colorado, 185 U. S. 125, and Georgia v. Tennessee Copper Co., 206 U. S. 230, some suggestions.

That principle was that it was for the "interest of the public for a State to maintain the rivers that are wholly within it substantially undiminished, except by such drains upon them as the guardian of the public welfare may permit for the purpose of turning them to more perfect use.' And this principle was emphasized as the one determining the case and the opinion expressed that it was "quite beyond any rational view of riparian rights that an agreement of no matter what private owners, could sanction the diversion of an important stream outside of the boundaries of the State in which it flows. The private right to appropriate is subject not only to the rights of the lower owners but to the initial limitation that it may not substantially diminish one of the great foundations of public welfare and health."

It is hardly necessary to say that there was no purpose in the case to take from property its uses and commercial rights or to assimilate a flowing river and the welfare which was interested in its preservation to the regulation of gas wells, or to take from the gas when reduced to possession the attributes of property decided to belong to it in Ohio Oil Co. v. Indiana, and recognized in Lindsley v. Natural Gas Co. Indeed, pains were taken to put out of consideration a material measure of the benefits of a great river to