221 U. S.

Opinion of the Court.

sidered alone is clear. An entryman or his assignors may make reclamation. It is said, however, that the words which follow them explain them and take all ambiguity from them. It is provided that "within one year after making entry the party so entering shall expend not less than one dollar per acre" and that he (italics ours) "shall in like manner" expend the same sum during the second and third year. "Said party," it is further provided, "shall file the proofs of such expenditure" and at the expiration of the third year a map or plan showing the character and extent of such improvements." And again: "If any party fail to file the proofs the entry shall be canceled." It is finally provided that nothing in the section contained "shall prevent the claimant from making his final proof and receiving his patent at an earlier date than that prescribed for the performance of the conditions required. These provisions, it is insisted, designate the entry and entryman and only him. This is made indubitable, it is urged, by the use of the pronouns "he" and "his," excluding every other person, and requiring the expenditure and improvements to be made by him individually. But the opening sentences of the section are to be accounted for, and these are, to repeat, "That no land shall be patented to any person under this act unless he or his assignors shall have expended in the necessary irrigation, reclamation, and cultivation thereof least three dollars per acre. signs" is also used in § 7. Counsel feel the necessity of accounting for the provision and to give it a meaning that will neither contradict nor make doubtful that for which they contend. Their explanation is, "that Congress used the words 'or his assignors' in § 5 and 'or his assigns' in § 7 only in recognition of the right that every entryman has under any of the public land laws of the United States to make an assignment after he has acquired the equitable title to the land embraced within

at

" and the word "as

his entry." In other words, as observed by the court below, a new right was not created, but a right already existing was incidentally referred to. In aid of this conclusion, and in opposition to the contention made by the Government that "assignors" designated persons who may legally do the things prescribed in § 5 before the equitable title vests, it is answered that an applicant can have more than one assignor but they must be assignors of perfected entries, perfected by the performance of the conditions by the respective entrymen. Examples are given under the practice which obtained in the Land Department prior to 1908 (an act of that year limits the assignment to one) of issuing patents to an applicant who had taken assignment of more than one entry if the aggregate area of the land embraced in the entries did not exceed 320 acres. But to support this view reliance is had upon decisions made after the act of 1891, and which, it is admitted, "apply to assignments made before the vesting of equitable title, as permitted by the Land Office since 1891." That, it is insisted, is not material so far as the point is concerned. But manifestly it is material. To support and give force to a practice of the Land Department under the act of 1891, to impugn its construction of the act, is certainly confusing. We cannot assume that the Land Department did not know what it was about and made its practice under the act oppose its construction of the act. But, it may be granted that there is strength in the argument, and in that based on the words of the statute. They are, however, opposed by arguments of equal, if not greater strength. Conceding then that the statute is ambiguous, we must turn as a help to its meaning, indeed in such case, as determining its meaning, to the practice of the officers whose duty it was to construe and administer it. They may have been consulted as to its provisions, may have suggested them, indeed have written them. At any rate their practice, almost coinci

dent with its enactment, and the rights which have been acquired under the practice, make it determinately persuasive.

We are constrained, therefore, to reverse the order of the District Court sustaining the demurrer and remand the case for further proceedings.

Reversed.

WEST, ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, v. KANSAS NATURAL GAS COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF OKLAHOMA.

No. 916. Argued April 4, 5, 1911.—Decided May 15, 1911.

When a State recognizes an article to be a subject of interstate commerce it cannot prohibit that article from being the subject of interstate commerce; and so held that corporations engaged in interstate commerce cannot be excluded from transporting from a State oil and gas produced therein and actually reduced to possession.

In matters of foreign and interstate commerce there are no state lines; in such commerce instead of the States a new power and a new welfare appears that transcend the power and welfare of any State. The welfare of the United States is constituted of the welfare of all the States, and that of the States is made greater by mutual division of their resources; this is the purpose and result of the commerce clause of the Constitution.

Natural gas and oil when reduced to possession by the owner of the land are commodities belonging to him subject to his right of sale thereof, and are subjects of both intrastate and interstate com

merce.

Argument for Appellant.

221 U.S.

There is a distinction between the police power of the State to regulate the taking of a natural product, such as natural gas, and prohibiting that product from transportation in interstate commerce. The former is within, and the latter is beyond, the power of the State. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, distinguished. A State does not have the same ownership in natural gas and oil after the same have been reduced to possession as it does over the flowing waters of its rivers. Riparian owners have no title to the water itself as a commodity. Hudson County Water Co. v. McCarter, 209 U. S. 349, distinguished.

The right to engage in interstate commerce is not the gift of a State; nor can a State regulate or restrain such commerce, or exclude from its limits a corporation engaged therein.

Inaction by Congress in regard to a subject of interstate commerce is a declaration of freedom from state interference.

Where a State grants the use of its highways to domestic corporations engaged in intrastate commerce in a commodity it cannot deny the same use, under the same restrictions, to foreign corporations engaged in interstate commerce in the same commodity; and so held that the statute of Oklahoma prohibiting foreign corporations from building pipe lines across highways and transporting natural gas therein to points outside the State is unconstitutional as an interference with, and restraint upon, interstate commerce, and as a deprivation of property without due process of law. 172 Fed. Rep. 545, affirmed.

THE facts, which involve the constitutionality of a statute of Oklahoma restricting interstate commerce in oil and natural gas, are stated in the opinion.

Mr. Charles West, Attorney General of the State of Oklahoma, and Mr. Charles B. Ames for appellant:

The act of 1907-1908, as well as the supplementary legislation of 1909, is within the proper police power of the State.

The ruling principle is conservation, not commerce, and the due process clause is the single issue. Consumers' Gas Co. v. Harless, 29 N. E. Rep. 1062; N. W. Tel. Ex. Co. v. St. Charles, 154 Fed. Rep. 386; Western Union Tel.

221 U.S.

Argument for Appellant.

Co. v. Penna. R. R. Co., 195 U. S. 540; Wilson v. Hudson County W. Co., 76 Atl. Rep. 560.

A justifiable taking of property overrules other principles. Peculiar mineralogical character of oil, gas and water, likewise also justify such taking. Clark v. Nash, 198 U. S. 361; Strickley v. Highland Boy Min. Co., 200 U. S. 527; Offield v. N. Y., N. H. & H. R. Co., 203 U. S. 372; Bacon v. Walker, 204 U. S. 311; Noble State Bank v. Haskell, 219 U. S. 104; Ohio Oil Co. v. Indiana, 177 U. S. 190; Lindsley v. Nat. Carb. Gas Co., 220 U. S. 61; Katz v. Walkinshaw (Cal.), 64 L. R. A. 236; Hudson Co. W. Co. v. McCarter, 209 U. S. 281; Kansas v. Colorado, 185 U. S. 125.

Special climatic conditions justify taking for public use, as do also special topographical conditions.

States may restrain the reckless use of natural resources. Holden v. Hardy, 169 U. S. 397.

For instances of conservation upheld though other rights thereby limited, see McCready v. Virginia, 94 U. S. 391; Manchester v. Massachusetts, 139 U. S. 240; Geer v. Connecticut, 161 U. S. 519; Ohio Oil Co. v. Indiana, 177 U. S. 190; Kansas v. Colorado, 185 U. S. 125; Manigault v. Springs, 199 U. S. 473; Georgia v. Tennessee Co., 206 U. S. 230; Hudson Co. W. Co. v. McCarter, 209 U. S. 349; N. Y. ex rel. Silz v. Hesterberg, 211 U. S. 31; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; Mfgs. Co. v. Indiana Co., 50 L. R. A. 134; Consumers' Co. v. Harless, 29 N. E. Rep. 1062; Townsend v. State, 47 N. E. Rep. 19; Given v. State, 66 N. E. Rep. 750; State v. Ohio Co., 49 N. E. Rep. 809; Jamieson v. Indiana Co., 128 Indiana, 555; Wilson v. Hudson Co., 76 Atl. Rep. 560; Welch v Swasey, 193 Massachusetts, 364; Wadleigh v. Gilman, 12 Maine, 403; Salem v. Maynes, 123 Massachusetts, 372; Am. Point. Wks. v. Lawrence, 23 N. J. L. 9; Mugler v. Kansas, 123 U. S. 623; Korasek v. Peter, 50 L. R. A. 345; Smith v. Morse, 148 Massachusetts, 407; St. Louis v.