Haskell v. Cowham

Citation187 F. 403
Decision Date07 April 1911
Docket Number3,401.
PartiesHASKELL, Governor of Oklahoma, et al. v. COWHAM.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Syllabus by the Court.

Chapter 67, Laws of Oklahoma 1907, which by its terms and by its necessary effect discriminates against and prevents all interstate commerce in the natural gas in Oklahoma by absolutely preventing the use of pipe lines across the highways of that state to transport such gas out of the state, violates the Constitution of the United States, and is void.

And the acts of officers of a state done and threatened for the purpose of preventing an owner of such gas from laying and operating pipes to transport it out of the state across such highways are unjustifiable, and may be enjoined.

The right of a private citizen by means of his ownership of, or of his mining leases of, land to draw gas or oil from beneath its surface is property and sometimes valuable property.

The prevention of the sale of that property or of the oil or gas derivable therefrom in interstate commerce is a taking thereof without just compensation in violation of article 5 of the amendments to the national Constitution, and it is not justified by the power of a state to conserve its natural resources.

Suit by an owner of natural gas in Oklahoma against officers of that state to enjoin them from preventing him from laying and operating pipe lines across the highways of that state for the purpose of conducting his gas out of the state and of selling it in interstate commerce is not a suit against the state because the preventive acts of the officers are by reason of the Constitution of the United States unjustifiable and illegal, and a national court has plenary jurisdiction to entertain the suit and to grant the injunction.

Neither a state nor its officers by the exercise of, or by the refusal to exercise, any or all of its powers, may prevent or unreasonably burden interstate commerce in any sound article thereof.

Neither a state nor its officers by the exercise of, or by the refusal to exercise, any or all of its powers, may substantially discriminate against interstate commerce or the right to carry it on.

Interstate commerce in natural gas, including the transportation thereof in pipe lines, is a subject national in its character and susceptible of regulation by uniform rules, and the silence or inaction of Congress regarding it is a conclusive indication that it intends that interstate commerce therein shall be free and laws of states, and acts of its officers which either prohibit or substantially burden it are without justification violative of the Constitution and void.

Neither a state nor its officers may prevent or unreasonably burden interstate commerce in the natural gas within it by preventing the use to transport it of pipe lines across the highways of the state by means of the exercise, or the refusal to exercise, the police powers or the proprietary powers of the state over them.

C. B Ames and Charles West, Atty. Gen. (W. C. Reeves, Preston C West, and Flynn, Ames & Chambers, on the briefs), for appellants.

Eugene Mackey and Edward W. Hatch (Edward L. Scarritt, G. T. Stanford, John J. Jones, Parker, Hatch & Sheehan, Scarritt, Scarritt & Jones and Stanford & Stanford, on the brief), for appellee.

Before SANBORN and ADAMS, Circuit Judges, and WILLIAM H. MUNGER, District Judge.

SANBORN Circuit Judge.

May the officers of a state by means of its police or proprietary power over the highways of the state prevent all interstate commerce in a sound article thereof? This is the question which in the last analysis this case presents. It arises on an appeal taken by Charles N. Haskell, the former governor, Charles West, the Attorney General, and others, from an interlocutory injunction against their so doing. That injunction was granted at the suit of the complainant below, W. F. Cowham, a citizen of the state of Michigan, upon this state of facts: He is the owner of gas wells of great volume, value, and pressure and of gas mining leases on land in Rogers county and in Washington county, in the state of Oklahoma, which are tributary to a right of way for a pipe line to conduct natural gas which he owns over a lot of land that adjoins the state of Kansas, and he seeks to sell his Oklahoma gas to be delivered in the state of Kansas, and to build and operate a gas pipe line from his wells northerly across the Kansas line into the state of Kansas for the purpose of conducting his gas into the latter state. The defendants prevent and threaten to continue to prevent him from selling his gas in interstate commerce by preventing him from conducting it out of the state of Oklahoma by patrolling the state line between that state and Kansas, and preventing the construction or operation across the highway on that line and across the other highways in the state of Oklahoma of the pipe line of the complainant and of any other pipe line by means of which his gas may be conducted out of the state of Oklahoma.

The only practicable method of transporting natural gas is by a pipe line and the prohibition of the use of a pipe line for that purpose is in effect a prevention of its transportation. While the defendants are prohibiting and preventing in this way, except as they are restrained by the orders of the courts, all sales and all transportation of Oklahoma gas in interstate commerce, they are at the same time permitting sales of such gas and the operation of 500 miles of pipe lines in the state of Oklahoma to transport it in commerce within the state, and the complainant is ready and willing and offers to construct and operate his pipe line across the highways of the state in the same manner and with the same regard for the use of these highways for travel and transportation with which existing pipe lines have been laid and are operated.

In justification of their acts, the defendants below invoke the police power and the proprietary power of the state over its highways and chapter 67 of the Laws of Oklahoma, 1907. In Oklahoma there are public highways two rods in width along each of the lines of the government sections. For the purpose of the discussion and disposition of this case, it is conceded, but it is not admitted or decided, that the state has the title to the land in those highways. Nevertheless it holds this land in trust for the public use of the travel of persons and animals and the transportation of articles of commerce, and not for the purpose of preventing such a public use. The state undoubtedly has authority under its police power and under its proprietary power alike so to regulate and control the use of the highways as to maintain reasonably safe and convenient roadways for travel and transportation. Counsel for the defendants planting themselves upon these powers insist that by virtue of them the state may prevent the use, nay more, even the crossing, of its highways beneath the surface of the ground by pipe lines used to conduct interstate commerce. It was upon this theory and to this end that chapter 67 of the Laws of 1907 was enacted, and this was the method pursued to accomplish this purpose. That chapter provided (1) that domestic corporations might be organized for the purpose of transporting natural gas, but that none of them should have the right of eminent domain, or the right to use the highways of the state, unless it was expressly stipulated in its charter that it should transport or transmit natural gas through its pipe lines to points within the state only (sections 1 and 2); (2) that no foreign corporation engaged in or formed to engage in the business of transporting natural gas by means of pipe lines should ever be permitted to conduct that business in Oklahoma (section 3); (3) and that no person, firm, association, or corporation should ever be permitted to transmit or transport natural gas by means of pipe lines in Oklahoma except domestic corporations and factories which may transport it only within the state and are prohibited from conducting it out of the state (sections 9 and 10). The actual and necessary effect of this statute and of the prevention of the crossing of the lines of the highways of the state beneath their surface by any pipe lines used to transport natural gas out of the state is the complete prevention of all interstate commerce in that gas in Oklahoma; for it cannot be sold to be delivered out of the state unless it can be transported out of the state, and it cannot be transported out of the state without the use of pipe lines across the lines of the highways on the section lines upon the borders of and across the state. The statute, if valid, justifies this prevention, for under it no one may construct or use pipe lines across the lines of the highways for the purpose of transporting natural gas out of the state. Domestic corporations may not (sections 1 and 2). No other corporation may (sections 3 to 8). No person, firm, or association may (section 10). So it is that all interstate commerce in the natural gas in Oklahoma, not only by the complainant, but by any and all parties whomsoever, is by this statute of Oklahoma and the acts of its officers here in question absolutely prohibited by their use or abuse of the police power and the proprietary power of the state. And, if in this way that state can prevent interstate commerce in natural gas, it may in the same way prevent it in grain, in coal, in all manufactures, and in every other article of commerce, and the method so diligently sought for more than a century whereby a state may nullify the commercial clause of the Constitution has at last been discovered. How can these things be and by what arguments do counsel for the defendants seek to maintain this conclusion?

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  • Kansas City Gas Co. v. Kansas City
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • March 2, 1912
    ......v. Taylor, 192 U.S. 64-73, 24 Sup.Ct. 208, 48 L.Ed. 342. . . In the. case of Kansas Natural Gas Co. v. Haskell (C.C.) 172. F. 545-558, the act provided for the exercise of eminent. domain, the restriction of pressure in pipe lines in the. state beyond an ...(N.S.) 1193, and the same principles are. laid down by the Court of Appeals of this circuit in. Haskell, Governor of Oklahoma, et al., v. Cowham. (C.C.A.) 187 F. 403, 109 C.C.A. 235. The authorities in. support of these principles are overwhelming in number and. compelling in dignity, and ......
  • Landon v. Public Utilities Commission of State of Kansas
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • April 21, 1917
    ...442, 56 L.Ed. 738, West v. Kansas Natural Gas Co., 221 U.S. 229, 31 Sup.Ct. 564, 55 L.Ed. 716, 35 L.R.A. (N.S.) 1193, and Haskell v. Cowhan, 187 F. 403, 109 C.C.A. 235, can no longer be open to question that natural gas is a subject of interstate commerce. And it seems to have been admitted......
  • State ex rel. Bd. of R. Com'rs of State v. Stanolind Pipe Line Co.
    • United States
    • United States State Supreme Court of Iowa
    • June 20, 1933
    ...is federal authority for such condemnation, other than implied in the commerce clause. Nevertheless, it was said in Haskell v. Cowham (C. C. A. 8th Circuit) 187 F. 403, reading on page 408: “No state may by means of its police power, or its proprietary power, over highways or by means of an......
  • State ex rel. Bd. of R. R. Com'rs v. Stanolind Pipe Line Co.
    • United States
    • United States State Supreme Court of Iowa
    • June 20, 1933
    ...... other than implied in the commerce clause. . .          Nevertheless,. it was said in Haskell v. Cowham (C. C. A. 8th. Circuit) 187 F. 403, reading on page 408:. . .          "No. state may by means of its police power, or its ......
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