Palmer Oil Corp. v. Phillips Petroleum Co. , 204 Okla. 543 ( 1951 )

GIBSON, J.

Cause No. 33336 is an appeal from an order of the Corporation Commission providing for the unitized management, operation and further development of what is designated as “West Cement Medrano Unit”, located in Caddo county, Oklahoma, made in pursuance of the provisions of 52 O. S. Supp. 1945 §§286.1 to 286.17. Cause No. 33708 is an original action for a writ prohibiting the Corporation Commission from exercising further jurisdiction in the matter of said unit-ization. Since the question of the issuance of the writ depends upon the issues involved on the appeal the same will be disposed of following determination of the appeal.

Involved on the appeal are two major questions. One, the constitutionality of said sections of the statute which, as a whole, constitute what is known as the Unitization Act (H. B. 339 of the 1945 Oklahoma Legislature). The other, the legality of the order of the Commission if authorized under the Act to effect unitization. These questions will be considered in the order stated.

The nature of the Act and the purposes sought to be accomplished thereby are clearly reflected in the legislative declaration made in the first section thereof, as follows:

“Sec. 286.1. The Legislature finds and determines that it is desirable and necessary, under the circumstances and for the purposes hereinafter set out, to authorize and provide for unitized management, operation and further development of the oil and gas properties to which this Act is applicable, to the end that a greater ultimate recovery of oil and gas may be had therefrom, waste prevented, and the correlative rights of the owners in a fuller and more beneficial enjoyment of the oil and gas rights, protected.”

Plaintiffs in error recognize that the subject-matter of the Act is one within the police power of the state and that the constitutional questions presented are whether the Act constitutes a reasonable exercise thereof.

We will refer to and state or quote the particular provisions of the Act involved on considering the arguments directed thereto.

The plaintiffs in error, though numerous, represent but three classes in interest: lessors, lessees and those having, severally, royalties interest which are in excess of one-eighth of the total production.

On behalf of the lessees it is contended that the Act is violative of art. II, sections 7, 15, 23 and 24 of the Constitution of the State of Oklahoma, and of art. I, sec. 10, of the Fourteenth Amendment to the Constitution of the United States. For the purpose of the presentation, there is no segregation of the contentions as to each of said constitutional provisions for the expressed reason the grounds relied on have common application to all. Two grounds are relied on. One, the Act as a whole is unreasonable. The other, the Act constitutes an unauthorized delegation of legislative power.

On behalf of the lessors it is contended that the Act is violative of all of said constitutional provisions and of section 51 of art. V of the Constitution of the State of Oklahoma. The several violations are referable to definite grounds which have common application and there is no occasion to segregate the contentions as to each. Five grounds are relied on. One, the Act constitutes an unauthorized delegation of legislative power, which ground is the same as lessees’ ground number Two and is urged on the same bases. Two, that both in the formation of the unit and in the committee management thereof lessees only are recognized and therefore to the exclusion of the lessor. Three, the Act imposes an unauthorized burden upon the royalty interest in the production. Four, the Act imposes an unauthorized burden upon the leased premises of the lessor. And, fifth, the Act is violative of the obligations of contracts.

The substance of lessees’ ground One is that the Act is unreasonable because it does not require as a condition to the establishment of the unit a finding by the Commission that, for the purpose of conservation, the application of Act will be more effective than that of the existing laws. In support thereof attention is called to the fact that under the provisions of the Act the unit may be established in fields where production has been had for nearly twenty years; that unitization, in which gas energy is a prime factor for operation, would be less satisfactory by reason of the expenditure thereof during operations prior to unification and would disturb the multitude of rights that had become established on the basis of the methods being employed under the existing laws. There is then declared:

“It is our earnest contention that a compulsory unitization statute which clearly disrupts the existing law and existing rights can only be justified where the advantages to be gained far offset the losses to be sustained to property or individual rights.”

There are then recited the findings required of the Commission by the Act, and it is stated that thereunder “the Commission could approve a plan of unitization which definitely could not result in an increased recovery of oil and gas over that being accomplished by present methods of operation under the general conservation law.” It is then declared that, by reason thereof:

“We submit that any compulsory unitization law, competing with the general conservation law whose real purpose is exactly the same, should not be given constitutional sanction under the police power unless it specifically provides that the Commission finds that any plan of unitization approved thereunder will accomplish the conservation of oil and gas with substantially greater results than is being accomplished under the general conservation law still in full force and effect.”

The findings required by the Act appear in section 286.4, as follows:

“If upon the filing of a petition therefor and after notice and hearing, all in the form and manner and in accordance with the procedure and requirements hereinafter provided, the Commission shall find (a) that the unitized management, operation and further development of a common source of supply of oil and gas or portion thereof is reasonably necessary in order to effectively carry on pressure-maintenance or repressuring operations, cycling operations, water flooding operations, or any combination thereof, or any other form of joint effort calculated to substantially increase the ultimate recovery of oil and gas from the common source of supply; and (b) that one or more of said unitized methods of operation as applied to such common source of supply or portion thereof are feasible, will prevent, waste and will with reasonable probability result in the increased recovery of substantially more oil and gas from the common source of supply than would otherwise be recovered; and (c) that the estimated additional cost, if any, of conducting such operations will not exceed the value of the additional oil and gas so recovered; and (d) that such unitization and adoption of one or more of such unitized methods of operations is for the common good and will result in the general advantage of the owners of the oil and gas rights within the common source of supply or portion thereof directly affected, it shall make a finding to that effect.

As indicated in the contention, the Act does not authorize the Commission to withhold establishment of unification where in the opinion of the Commission oil conservation may be accomplished better under existing laws. It limits the findings required of the Commission to the ascertainment of definite facts which in the opinion of the Legislature are sufficient to justify application of the law.

There is no contention that the standards prescribed are insufficient in any respect other than in not including the suggested finding. Therefore, it necessarily follows that the contention challenges the authority of the Legislature in dealing with matters of policy, which is a realm that is without the scope of judicial inquiry. The Supreme Court of the United States, in C. B. & Q. Railroad Co. et al. v. McGuire, 219 U. S. 549, 31 S. Ct. 259, 55 L. Ed. 328, 339, said:

“ . . . The scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative considerations in dealing with the matter of policy. Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the Legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.”

This court, in Re Application of Richardson, 199 Okla. 406, 184 P. 2d 642, said:

“The Legislature is itself the judge of the conditions which warrant legislative enactments, and they are only to be set aside when they involve such palpable abuse of power and lack of reasonableness to accomplish a lawful end that they may be said to be merely arbitrary, capricious, and unreasonable, and hence irreconcilable with the conception of due process of law.”

To the same effect see Herrin v. Arnold, Judge, 183 Okla. 392, 82 P. 2d 977; Jack Lincoln Shops, Inc., v. State Dry Cleaners’ Board, 192 Okla. 251, 135 P. 2d 332; Phelps et al. v. Childers, State Auditor, 184 Okla. 421, 89 P. 2d 782; City of McAlester v. Jones, 181 Okla. 77, 72 P. 2d 371; Barnes v. Smith, Judge, 179 Okla. 71, 64 P. 2d 1217; Grable v. Childers, State Auditor, 176 Okla. 360, 56 P. 2d 357.

Though not necessary to so state, the Act reflects that the Legislature not only considered operations had and being had under existing laws, but gave recognition to those methods employed which it considered to better serve the overall purpose of conservation by withholding the application of the Act thereto. Such is reflected in second section of the Act (52 O. S. Supp. 1945 §286.2), which we quote:

“This Act shall apply only to common sources of supply of oil, oil and gas, or gas distillate in this State.

“The provisions of this Act shall not apply to any common source of supply of oil, oil and gas, or gas distillate or any part or parts thereof which at the effective date of this Act are being operated by or under pressure maintenance, repressuring, or secondary recovery methods or operations,' provided, that nothing contained in this Act shall prevent the voluntary inclusion and extension of areas in which are located such existing pressure maintenance, re-pressuring, or secondary recovery methods or operations as unit areas under the provisions of this Act. Provided this Act shall not apply to any field where the discovery well has been drilled twenty (20) years prior to the effective date of this Act.”

Lessees’ ground number Two and lessors’ ground number One, both to the effect the Act constitutes an unauthorized delegation of legislative power, have reference to the force of the following provisions of the Act:

“ ... To give the Commission jurisdiction, hereunder, the petition shall be filed by, or with the authority of, lessees of record of fifteen per cent (15%) or more of the area of the common source of supply or portion thereof sought to be unitized. The petition shall set forth a description of the proposed unit area with a map or plat thereof attached, must allege the existence of the facts required to be found by the Commission as hereinabove provided and shall have attached thereto a recommended plan of unitization applicable to such proposed unit area and which the petitioners consider to be fair, reasonable and equitable. (Sec. 286.4).

“If at any time after the filing of a petition for the creation of a unit and within sixty (60) days after the entry of an order by the Commission approving the creation of the same, lessees of record of fifty per cent (50%) or more of the proposed unit area, if prior to the entry of the order by the Commission, or lessees of record of fifteen per cent (15%) or more of the unit area as defined by the approved plan of unitization and order of the Commission, if after the entry of such order, shall file written protest with the Commission against the creation of the unit, the Commission shall vacate all action of any kind theretofore taken and dismiss the proceedings for the creation of such unit.” (Sec. 286.6.)

It is contended that, since the fact of the legislation is made dependent upon the will of a majority of those to be affected thereby, there is a delegation of legislative power. As supporting the contention that there has been an unauthorized delegation of legislative power and a violation of due process by reason thereof, the cases of Carter v. Carter Coal Co., 298 U. S. 238, 56 S. Ct. 855, 80 L. Ed. 1160, and State of Washington ex rel. v. Roberge, 278 U. S. 116, 49 S. Ct. 50, 73 L. Ed. 210, are relied on. In the Carter case the donees of the power were given authority to make decisions determinable of the rights of others and in the Washington case the donees were given an arbitrary power to veto the exercise by others of their unquestioned rights. Neither situation obtains herein.

In the first place, the powers so granted can neither establish nor disestablish the unitization when established because the power of establishment rests with the Corporation Commission. In such situation there is not a trace of legislative power exercised. This conclusion is fortified by the fact that even if the establishment were dependent upon the will of the lessees their exercise thereof would not be the exercise of legislative authority. The reason for this is clearly reflected in the opinion of the Supreme Court of the United States in Currin v. Wallace, 306 U. S. 1, 83 L. Ed. 441. Therein it is said:

“So far as growers of tobacco are concerned, the required referendum does not involve any delegation of legislative authority. Congress has merely placed a restriction upon its own regulation by withholding its operation as to a given market ‘unless two-thirds of the growers voting favor it.’ Similar conditions are frequently found in police regulations. Thomas Cusack Co. v. Chicago, 242 U. S. 526, 530, 61 L. Ed. 472, 475, 37 S. Ct. 190, L.R.A. 1918A, 136 Ann. Cas. 1917C, 594. This is not a case where a group of producers may make the law and force it upon a minority (see Carter v. Carter Coal Co., 298 U. S. 238, 310, 318, 80 L. Ed. 1160, 1188, 1192, 56 S. Ct. 855) or where a prohibition of an inoffensive and legitimate use of property is imposed not by the Legislature but by other property owners (see Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U. S. 116, 122, 73 L. Ed. 210, 214, 49 S. Ct. 50, 86 A.L.R. 654). Here it is Congress that exercises its legislative authority in making the regulation and in prescribing the conditions of its application. The required favorable vote upon the referendum is one of these conditions. The distinction was pointed out in J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 407, 72 L. Ed. 624, 629, 48 S. Ct. 348, where, in sustaining the so-called ‘flexible tariff provision’ of the Act of September 21, 1922, and the authority it conferred upon the President, we said: ‘Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive, or, as often happens in matters of state legislation, it. may be left to a popular vote of the residents of a district to be affected by the legislation. While in a sense one may say that such residents are exercising legislative power, it is not an exact statement, because the power has already been exercised legislatively by the body vested with that power under the Constitution, the condition of its legislation going into effect being made dependent by the Legislature on the expression of the voters of a certain district.’ ”

This type of legislation is not uncommon and has been applied in a variety of situations where community of interest obtains. Frequent examples are acts dealing with water rights and drainage. In Oklahoma it is reflected in 82 O. S. 1941 §§111-273, providing for creation of Irrigation Districts upon petition of fifty or a majority of the holders of title to lands susceptible of irrigation; in 82 O. S. 1941 §§281-382, providing for creation of Drainage Districts upon petition of five or more residents, and further providing (§311) that upon protest of 50% of the landowners, or owners of 50% of the total acreage embraced in the district, the proceedings are to be dismissed; in 82 O. S. 1941 §§541-687, providing for creation of Oklahoma Conservancy District Act, upon petition of percentage of property owners and the dismissal of the proceedings upon protest of a percentage of the landowners; and 82 O. S. 1941 §721 et seq., providing for creation of Water Improvement District upon petition of fifty or a majority of the holders of title to lands in the proposed district. Under authority of these Acts districts have been created and thereafter have functioned. It does not appear that the constitutionality of any has been challenged upon the ground that the operation of the law is predicated upon the will of those whose interests are involved although the question of rights controlled by the Acts has been involved in litigation and the validity of the Acts recognized by this court. (Fry v. Swift, 164 Okla. 4, 22 P. 2d 94; Seikel v. Grimes, County Treas., 189 Okla. 658, 119 P. 2d 59.) That question, however, has been presented frequently in other jurisdictions and, so far as we have noted, the uniform holding is to the effect there is no delegation of legislative power and in the briefs herein there have been cited no cases in point holding to the contrary. State v. Drainage District No. 1, 123 Kan. 191, 254 P. 372; Barrett v. City of Osawatomie, 131 Kan. 50, 289 P. 970; Tarpey v. McClure, 190 Cal. 593, 213 P. 983; City of Dawson v. Bolton, 166 Ga. 232, 143 S. E. 119; Boagni v. Mayor and Board of Aldermen of City of Opelousas, 177 La. 835, 149 So. 494; Field v. Barber Asphalt Paving Co., 194 U. S. 618, 24 S. Ct. 784, 48 L. Ed. 1142.

We are of the opinion that lessors’ ground number Two is without merit. The basis of the conclusion is that there is not granted to the royalty owners like power of petition and protest as that granted to the lessees. Under the Act the landowners who have not leased their acreage are classed as lessees.

The question is not the wisdom of granting the right of protest to the lessees while withholding it from the royalty owners but whether it was within the power of the Legislature so to do. It was within the power of the Legislature to do so because being within its police power to enact the law without the consent of either lessees or royalty owners it was optional with it to requirie the consent of either. Where privilege is granted to some in such situation the Constitution is satisfied if all similarly situated are treated alike. This statement of the law has been declared in many decisions. A clear-cut statement thereof is made in Taggart v. Claypool, 145 Ind. 590, 32 L.R.A. 586, 44 N. E 18. The United State Supreme Court, in Field v. Barber Asphalt Paving Co., supra, said:

“The exact point of objection is that the improvement is not to be made if a majority of the resident owners of the property liable to taxation therefor shall file with the city clerk a protest against such improvement, which privilege of protest is not given to nonresident owners, thereby discriminating against them. It is well settled, however, that not every discrimination of this character violates constitutional rights. It is not the purpose of the 14th Amendment, as has been frequently held, to prevent the states from classifying the subjects of legislation, and making different regulations as to the property of different individuals differently situated. The provision of the Federal Constitution is satisfied if all persons similarly situated are treated alike in privileges conferred or liabilities imposed. (Citations omitted.) The alleged discrimination is certainly not an arbitrary one; the presence within the city of the resident property owners, their direct interest in the subject-matter, and their ability to protest promptly if the means employed are objectionable, place them on a distinct footing from the nonresidents, whom it may be difficult to reach. Furthermore, there is no discrimination among property owners in taxing for the improvement. When the assessment is made it operates upon all alike. It has been held to be within the power of the Legislature of Missouri to authorize the council to order the improvement to be made without consulting property owners. Buchan v. Broadwell, 88 Mo. 31. If the Legislature saw fit to give to those most directly interested, and whose consent could be most readily obtained, the right to protest, such action did not deprive the other persons of rights guaranteed by the Constitution.”

Involved under the Act are the plural rights of production from the common pool. The purpose of the Act is to so adapt the exercise of such rights that the value of the reservoir may be realized to the fullest degree possible by those entitled thereto and according to their respective shares therein. This can be done only through an intelligent control of the drilling operations. The royalty owners are those who have committed to lessees their right to produce in exchange for a definite share in the production. Such rights have been so committed in reliance upon the ability of the lessees to produce. Neither the fact of nor the amount of the royalty interest presents any problem for solution in establishing unification because same is recognized and fixed by the law. The real problem involves an appraisal and adaptation of the existing problems that rest upon the shoulders of the lessees. By reason of their responsibility the lessees have an interest that is distinctive from that of the royalty owners but it is not adverse thereto because the interests of the latter are dependent upon and must rise or fall ^ith that of the lessees. By reason of their knowledge of the problems they, necessarily, are in a better position than the royalty owners to appraise the practicability and hence the wisdom of unification. To realize that the information they possess is deemed vital to a determination of the question of unification, one needs only to read the showing that is required by the Act to be made. By reason of their activity the lessees are in a position to both attest the wisdom or lack of wisdom of unification and produce the evidence that is determinative thereof. The royalty owners, who by their own acts have completely divorced themselves from the activity, are often not conveniently accessible and could afford little if any helpful information if available, but they are granted the right of an appeal from the action of the Commission, and this case is an example of its exercise. The distinction between the lessees and the royalty owners as classes in interest and the reason why the Legislature should extend a privilege so responsible to one and not the other is so manifest that it precludes any idea that in doing so the legislative Act was capricious. Such being true there is no basis for holding the Act unconstitutional for that reason.

Lessors’ ground Three, that the Act imposes an undue burden upon the royalty, has reference to the provisions of the Act which treats the royalty interest that is in excess of one-eighth of the production as a part of the lessees’ working interest which is considered to be seven-eighths of the production. It is contended that, under the lease contract, the lessor is entitled to the full amount of the royalty run to his credit free from liability for operating expense. That his right in that respect is impaired because such royalty in excess of one-eighth of production is made liable for operating expense.

Under the Act a one-eighth part of the unit production allocated to each separately owned tract is to be regarded as royalty and to be distributed to or among the royalty owners free and clear of unit expense, and the remaining seven-eighths is designated as a leasehold interest and made liable for the unit expressly chargeable to such tract. The effect of the unitization upon any royalty interest in excess of one-eighth under any existing lease and the provision made therefor is reflected in the following (52 O. S. Supp. 1945, §§286.9):

“Subject to such reasonable limitations as may be set out in the plan of unitization, the unit shall have a first and prior lien upon the leasehold interest only in the unitized common source of supply (exclusive of a one-eighth (1/8) royalty interest) in and to each separately-owned tract, the interest of the owners thereof in and to the unit production and all equipment in the possession of the unit, to secure the payment of the amount of the unit expense charged to and assessed against such separately-owned tract. The interest of the lessee or other persons who by lease, contract or otherwise are obligated or responsible for the cost and expense of developing and operating a separately-owned tract for oil and gas in the absence of unitization shall, however, be primarily responsible for and charged with any assessment for unit expense made against such tract and resort may be had to overriding royalties, oil and gas payments, royalty interests in excess of a one-eighth (1/8) of the production, or other interests which otherwise are not chargeable with such cost, only in the event the owner of the interest primarily responsible fails to pay such assessment or the production to the credit therefor is insufficient for that purpose. In the event the owner of any royalty interest, overriding royalty, oil and gas payment or other interest which under the plan of unitization is not primarily responsible therefor pays in whole or in part the amount of an assessment for unit expense for the purpose of protecting such interest, or the amount of the assessment in whole or in part is deducted from the unit production to' the credit of such interest, the owner thereof shall to the extent of such payment or deduction be subrogated to all of the rights of the unit with respect to the interest or interests primarily responsible for such assessment.”

The importance of the segregation of a definite amount of the total production as royalty is manifest and it is further attested by the fact it is made an integral part of all leases where the cost of operation is to be borne by the lessee. It follows that such segregation is as fully important where the operation is unitized and operated as one lease. In such situation the question is whether the proportion of the production to be regarded as royalty is reasonable. The amount thereof is not called in question so far as the same affords the basis of the unit operation, but it is held that the effect thereof is to impose an unlawful burden on any royalty interest in excess of the one-eighth, if such there be. Considering, as we must, that the one-eighth royalty prescribed is reasonable to accomplish the overall purpose, it follows that the right to the exceptional royalty as such much yield to the extent it militates against the plan but should be preserved to the extent it may be done consistently with such plan. We hold that the Act gives full recognition to such right and only varies the method prescribed in the lease for its enjoyment. Prior to unitization such a lessor would be entitled to receive the entire royalty share free from the cost of production. The enjoyment of this right, however, was based upon the obligation of the lessee to produce and so deliver. Under the unitization such obligation obtains upon the unit to the extent of a one-eighth royalty and the obligation of the- lessee to account for the remainder is recognized and declared. The liability of any excess royalty is made possible because for the plan of operation it is accorded the status of a leasehold interest. But by reason of the lease contract treating it as royalty the liability is made secondary and could only obtain where there was a breach of the obligation of the lessee to discharge the operation cost allowable thereto as part of the leasehold interest. We take it that the extent of the right and the assurance of its enjoyment is in substance preserved.

In support of lessors’ ground number Four it is urged that the Act authorizes the unit to burden the leased premises beyond the right of the lessee thereof to do so.

If it be true that the Act authorizes the unit to burden any premises beyond the right of the lessee thereof and at the same time in excess of what would be justified for the operation of the unit, such fact, appertaining to be a matter of detail in the operation of the unit, could not be held to affect the integrity of the Act as a whole because, by the terms of the Act, the provisions are made severable (52 O.S. Supp. 1945, §286.16). Though the Act may authorize such an additional burden it does not require that such burden be placed thereon in derogation of the lessors’ righ*ts. And we cannot anticipate that those charged with the operations of the unit will exercise the powers granted in an unlawful manner.

The 50 per cent provision of section 286.4 has hereinbefore been considered. No rights have been exercised under the 15 per cent provision of section 286.6, though its validity is questioned here. It is unnecessary to determine the constitutionality of this provision at this time. The same is true of the 10 per cent provision of section 286.11 providing for reconsideration by the Commission of the plan in operation and fixed correlative rights thereunder. These undetermined questions are reserved.

Bearing upon the contentions that the order of the Commission is contrary to the evidence there is said:

“The petition and amended plan of unitization and order of Commission approving the same in form follows generally the requirements of the statutes under which they were prepared and made. The broad issue raised by The Palmer Oil Corporation and other petitioners in error is that the order of the Commission approving the plan of unit-ization was contrary to the clear weight of the evidence in one or more respects. The petitioners in error also raise the question of constitutionality.”

The Act provides that one aggrieved by the order may appeal to this court and defines the jurisdiction and duty of this court on appeal, as follows:

“. . • The Supreme Court on appeal shall have jurisdiction and authority and it shall be its duty to review the record of proceedings and transcript of evidence and to consider the validity of the order of the Commission appealed therefrom. On appeal the order of the Commission appealed from shall be regarded as prima facie valid, fair, reasonable and equitable, but if the order is found to be contrary to the clear weight of the evidence, in any one of such respects, the same shall be vacated and set aside and the cause referred to the Commission for further proceedings not inconsistent with the judgment of the court; otherwise, the said order shall be affirmed.” (Sec. 286.7.)

By reason of the presumption which is expressly made to attend the order of the Commission, there is cast upon plaintiffs in error the burden of showing that the order in the respects challenged is contrary to the weight of the evidence and we have repeatedly so held. Croxton v. State, 186 Okla. 249, 97 P. 2d 11; Grison Oil Corp. v. Corporation Commission, 186 Okla. 548, 99 P. 2d 134; Oklahoma Cotton Ginners’ Ass’n v. State, 174 Okla. 243, 51 P. 2d 327; Denver Producing & Refining Co. v. State, 199 Okla. 171, 184 P. 2d 961.

The importance of the rule lies in the fact that the formulation and execution of the legislative policy has been entrusted to the Commission because it is thought to be peculiarly experienced and fitted for the purpose and it is not to be contemplated that the courts may substitute their notions of expediency and fairness for that of the Commission. Peppers Refining Co. v. Corporation Commission, 198 Okla. 451, 179 P. 2d 899; Denver Producing & Refining Co. v. State, supra.

In the light of these governing rules, we consider the several alleged grounds of error in making the order.

It is contended that the area of the West Cement Medrano Unit is not limited to one “common source of supply.”

Under the Act, a unit must be limited to a common source of supply. The Act does not in express terms define a common source of supply, but there was at the time of the enactment a legislative definition of the term (52 O. S. 1941 §84 (c), now 52 O. S. Supp. 1947 §86.1 (c) ), and we construe such definition as a part of the Act. Therein, the term is thus defined:

“(c) The term ‘Common Source of Supply’ shall comprise and include that area which is underlaid or which, from geological or other scientific data, or from drilling operations, or other evidence, appears to be underlaid, by a common accumulation of oil or gas or both; provided, that, if any such area is underlaid, or appears from geological or other scientific data, or from drilling operations, or other evidence, to be underlaid by more than one common accumulation of oil or gas or both, separated from each other by a strata of earth and not connected with each other, then such area, as to each said common accumulation of oil or gas or both, shall be deemed a separate common source of supply;”.

That more than one common source of supply may exist in a given sand appears to be recognized in the statute, and in H. F. Wilcox Oil & Gas Co. v. State, 162 Okla. 89, 19 P. 2d 347, we held that more than one common source of supply could obtain in such sand by reason of faults that constitute impervious barriers between segments thereof.

The existence of faults in the unit area is recognized and the question before Commission was whether the segments of the sand were disconnected by reason of the faults. The finding of the Commission (in paragraph 2) which is directly responsible to the issue is as follows:

“ . . . that the said Medrano sandstone underlying said above described lands as aforesaid constitutes a single common source of supply of oil and gas, all parts of which are permeably connected so as to permit the migration of oil or gas or both from one portion of said common source of supply to another wherever and whenever pressure differentials are created as a result of the production or operations for the production of oil or gas from said producing formation; that although faults are known to exist in parts of said common source of supply said faults do not prevent substantial migration of oil and gas and of pressures from one part of said common source of supply to another; that said common source of oil and gas has heretofore been designated by the Commission and is generally known as the West Cement Medrano Pool.”

The question of the faults in the area and the effect thereof had previously been before the Commission a number of times, and the study and hearings thereon had culminated in orders wherein the Commission found that the whole of the Medrano sand as then developed was in fact one common source of supply. At the hearing herein the testimony adduced was chiefly that of petroleum engineers and geologists who testified on the basis of both personal surveys made and of an interpretation of the accumulated data in the hands of the Commission. The testimony of these experts was in direct conflict but that of each was positive upon the issue. Under the circumstances the objection is necessarily addressed to only the weight of the evidence. Under the holding of this court and that of courts generally (Chicago, R. I. & P. Ry. Co. v. Pruitt, 67 Okla. 219, 170 P. 1143; 22 C. J. 728, §823) the weight to be given opinion evidence is, within the bounds of reason, entirely for the determination of the jury or of the court, when trying an issue of fact, it taking into consideration the intelligence and experience of the witness and the degree of attention he gave to the matter. The rule should have peculiar force herein where by the terms of the Act the Commission is recognized as having peculiar power in weighing the evidence. Since the evidence before the Commission was competent and sufficient, if believed, to .sustain the order, we must, and do, hold that the order is sustained by the evidence and that the contention is without merit. Ft. Smith & W. Ry. Co. v. State, 25 Okla. 866, 108 P. 407; Bromide Crushed Rock Co. v. Dolese Bros. Co., 121 Okla. 40, 247 P. 74.

It is contended that the proposed area of the Medrano sand included within the unit has not been reasonably defined by actual drilling operations.

52 O. S. Supp. 1947 §286.5 provides, in part, as follows:

“The order of the Commission shall define the area of the common source of supply or portion thereof to be included within the unit area and prescribe with reasonable detail the plan of unitization applicable thereto.

“Each unit and unit area shall be limited to all or a portion of a single common source of supply. Only so much of a common source of supply as has reasonably been defined by actual drilling operations may be so included within the unit area.”

Paragraph 4 of the Commission’s Findings of Fact, to which attention, is called, is as follows:

“That the outer boundaries of said common source of supply of oil and gas underlying and by this Order included within the aforesaid Unit Area have been reasonably defined by actual drilling operations, both by the drilling of wells within and the drilling of wells outside said Unit Area; that said Unit Area consists of approximately 3700 acres of land.”

It is urged (1) that the Commission does not find that “all portions of the alleged common source of supply included within the unit area has been reasonably defined by actual drilling operations”, and (2) that there is included within the unit areas wherein the common source of supply has not been defined by actual drilling operations.

There is no merit in the first ground. Paragraph 2 of the Commission’s findings, hereinbefore quoted and discussed, expressly finds that the sand constitutes a common source of supply throughout the area of the unit. The presumption is that same was made on the basis of the required statutory showing. And the Commission in effect so declares in Finding No. 12, where it is said that the plan of unitization “in all respects conforms to and complies with the requirements of H. B. 339 of the 1945 Oklahoma Legislature.”

The limits of the pool and of the unit area were determined by the productive boundaries reflected in exhibits prepared by the Geological Committee and based on data and information gained from wells actually drilled to the Medrano sand or to depths sufficient to encounter the sand if present.

Within the unit there are numerous tracts on which no wells have been drilled into the Medrano sand. The source of the common supply thereunder, which is reflected in said exhibits, was predicated on the eviden-tiary force of drilling operations had in other areas.

It is not contended that the exhibits do not reflect the common source of supply under the undrilled tracts nor that the wells drilled elsewhere were not sufficient to show that existence of the supply thereunder — in fact, the expert witnesses of both plaintiffs in error and defendants in error testified that the drilling operations had were sufficient therefor. The contention is that actual drilling upon the tracts is required by the Act in order to justify a finding of the common source of supply. The contention is thus stated:

“Our interpretation of the statute requires the Commission to find that the common source of supply has been reasonably defined by actual drilling operations in respect not only to the outer boundaries but also all tracts therein included, as well as the depth of the common source of supply.”

The theory advanced is that the words of the statute, “reasonably defined by actual drilling operations”, negative the idea that the finding can be predicated upon drilling operations had elsewhere and that independently of the statutory provision opinion evidence of the existence of the common source of supply under such tracts based on the wells drilled elsewhere is mere conjecture. As supporting the latter contention, Myers et al. v. Shell Petroleum Corporation, 153 Kan. 287, 110 P. 2d 810, is cited as holding that the opinion evidence of an expert geologist on geological conditions at a point one-half mile distant from the control point was mere conjecture and could not be accepted as law. The court there did not expressly nor in substance hold that such distance from the control point, as a matter of law, made the opinion conjecture, but that by reason thereof and other facts which would preclude the evidentiary force thereof the same was not permitted to go to the' jury. However, even if the construction of the holding were justified it would not be persuasive as authority herein where the particularity which is required in a court of law does not obtain. Peppers Refining Co. v. Corporation Commission, supra.

Actual drilling upon the undrilled tracts or within a definite proximity thereto is neither prescribed by the statute nor by law. In fact, we are of the opinion that each is negatived, the first by the language of the statute and the other by the holding in the Peppers case, supra.

The alleged mandatory force of the statute is predicated upon the use of the word “reasonably” as used in the statute. We think the use of the word precludes rather than justifies the construction claimed. If the word “reasonably” were omitted the words “defined by actual drilling operations” would import absoluteness. The effect of prefixing the word “reasonably” to the words “been defined” necessarily qualifies the import of absoluteness which would obtain without it. In prescribing the formula the Legislature must have had in mind the impracticability of accomplishing the full purpose of the Act if its operation was to be conditioned upon actual drilling on all tracts. There is no prescription touching the places of the drilling operation nor the depth of the wells nor of what must be reflected therein. The only prescription is that the source of supply must have reasonably been defined hereby. The drilling operations required are simply those the eviden-tiary force of which is sufficient to justify a conclusion, by those capable in law of weighing the facts as to the existence of the source of supply. There is unanimity in the testimony herein that the wells drilled afforded sufficient evidence to define the common source of supply within the unit area and the Commission so found. We hold that said attack upon the order is without merit.

It is contended that the discovery well in the West Cement Field was drilled and completed more than twenty years prior to the effective date of the Unitization Act and, therefore, the Act does not apply to such field and, by reason thereof, there is no authority-in law for the order of the Commission.

There is involved a construction of sec. 286.2 of the Act, quoted above.

The West Cement Medrano sand, which is the common source of supply of the unit, was discovered October 15, 1936. The first discovery of oil and gas in the area of the unit was on or about October 17, 1917, but same was in a sand different from the Medrano sand. The question is, which of the wells is the discovery well within contemplation of the statute. If it be the well drilled in 1917 the Commission was without authority to establish the unit. If it be the well drilled in 1936 the authority to establish the unit is beyond question. Such was the issue before the Commission, and thereon it held:

“That the West Cement Medrano pool is a field within the meaning of that term as used in the second paragraph of Section 2 of H. B. 339 of the 1945 Oklahoma Legislature; that the term ‘field’ in ordinary usage has no fixed or definite meaning but is sometimes used to refer to the general area where a number of oil or gas producing formations are found and at other times used to refer to a particular common source of supply or pool; that as used by the Legislature aforesaid, the term was intended to relate to the particular common source of supply or pool sought to be unitized under the Act and not to any general area which in a broader sense could be termed a field; that in effect said Act throughout relates to^ and deals only with single common sources of supply of oil and gas.”

It is said that the word “field” has a commonly accepted meaning which denotes the surface area where there is a production and carries no significance as to the sand from which the production is had and that, is absence of a different meaning, apparent or obvious from the statute or definitely indicated thereby, the word should be construed in accordance with said commonly accepted meaning. It is further said that since the term “common source of supply” is used frequently in the Act while the word “field” is used but once, as indicated, it must be presumed that the word reflected a different meaning than that of the term “common source of supply”.

Defendants in error recognize the fact that the ordinary meaning of the word “field” is as contended and that the word appears only once in the Act. They do not question the correctness of said rules of construction where the force thereof is not limited. They contend that the rules are subservient and therefore subordinate to the fundamental rule of construction that the legislative intent is to be gathered from the entire Act. And, as declaring said rule and, at the same time giving an apt illustration of the limitations upon the rules relied on by plaintiffs in error, there is quoted from Meads et al. v. Human, 84 Okla. 82, 202 P. 797, the first paragraph of the syllabus, which is as follows:

“In considering a legislative enactment it is not safe to base a construction upon a particular word or phrase, for the language of legislative enactments is not always precise and accurate, and, besides, one portion may frequently be designed to extend, qualify, or limit another so that the meaning of one portion of a statute may depend upon the effect of another. Hence, it is an established rule in the exposition of statutes that the intention of the lawgiver is to be deduced from a view of the whole and of every part of a statute taken and compared together. The several provisions of the statute should be construed together in the light of the general purpose and object of the act and so as to give effect to the main intent and purpose of the Legislature as therein expressed. If possible a statute should be so construed as to render it a consistent and harmonious whole; if different portions seem to conflict, they should, if practicable, be harmonized, that construction being favored which will render every word operative rather than one which makes some words idle and nugatory.”

In the light of this rule the question is what construction is consonant with the general purpose and object of the Act. That the functions of the Act have reference to a definite sand as the source of common supply and is without reference to other sand or sands that may afford another source of supply within the same field, is without question. As indicated in section 286.2, quoted above, the fact-of previous development had in the area constituting the unitized pool, the extent thereof and the methods employed are taken into consideration and the functioning of the unitization plan is required to yield thereto in designated instances. It thus appears that the extent of development in the source of supply that is made subject to unification was within the legislative mind. If the well drilled in the field in 1917 had discovered the West Cement Medrano sand the Act would not authorize the unitization. The Act, in terms, makes no reference to any development in any sand other than that to which the unitization is made to apply and it cannot be gathered from the Act that the fact of discovery of other production in the field is material to the operation of the unit. We are of the opinion that the only logical deduction to be made, when considering the Act as a whole, is that the discovery well, in the mind of the Legislature, is that well in the field that discovered the common source of supply which is the subject of the unification. To hold otherwise would not only defeat the legislative intent herein but in other situations as well, because the court takes judicial knowledge of the fact major pools have been and may yet be discovered in areas where many years ago oil had been discovered in upper and shallower sands which have become practically if not completely depleted.

The order of the Commission is attacked upon the further grounds (1) the proposed “plan of unitization” is not “fair, reasonable and equitable” as required by section 286.5 of the Act, and (2) the “division of interest or formula for the . . . allocation of the unit production” is not fair, equitable and reasonable as required by said section.

These contentions require no extended discussions. They are directed solely to the weight of the evidence and the most that is shown in the argument is the existence of conflict in parts only of the evidence. Such does not challenge the weight of the pertinent evidence as a whole and for reasons hereinbefore stated does not disturb the presumption that attends the order of the Commission.

Plaintiff in error the Palmer Oil Corporation, a lessee, contends that the order of the Commission is particularly unfair, inequitable and unreasonable as to it as an operator.

Comprised within the unit is the S.W. 1/4 of sec. 35, twp. 6 N., R. 10 W., upon which the Gulf Oil Corporation held an oil and gas lease from the owners. In 1938 Gulf assigned to Palmer all of its right, title and interest therein to the depth of 6,000 feet, “retaining the lease as to the oil, gas and casinghead gas, together with all the rights, privileges and appurtenances thereunto belonging, below the depth of 6,000 feet.” The 6,000 foot subsurface level passes through the Medrano sand by reason of which there is productivity in the sand both above and below said level. Palmer drilled a well to but not beyond said level and obtained production from said sand therein. Gulf has no well producing from the sand below said level and is not authorized under the Unit-ization Plan to drill and produce therefrom. The Palmer well was completed during the pendency of these proceedings before the Commission. The order of the Commission fixed the percentage of the authorized lease production that each should receive and hold same to be applicable to the production of the Palmer well. It is contended that the Commission was without authority to permit Gulf to share in such production.- And further contended that the percentage division is unfair and contrary to the evidence if Gulf is entitled to so share.

The first contention is predicated solely upon the assumption that the rule of capture obtains. That it is subject to be modified by the state in the exercise of its police power, we held in Wilcox Oil & Gas Co. v. Bond, 173 Okla. 348, 48 P. 2d 820. And that the right of capture as claimed herein does not obtain where by Act the state undertakes to protect the correlative rights of owners in a common source of supply, regulate the drilling and distribute the production thereof, we held in Patterson v. Stanolind Oil & Gas Co., 182 Okla. 155, 77 P. 2d 83.

Pertinent to the second contention are the following facts: In the plan of unitization exhibited with the petition of the proponents the percentages of the lease production allotted were Palmer 5.145% and Gulf 2.538%, reflecting a lease total of 7.683%. Speaking generally, the total, or lease percentage, was predicated on the thickness of the sand underlying the lease and such thickness was deduced from the elevations of the top and bottom of the sand as ascertained by the surveys made. And the individual percentages based upon the proportions of the thickness which lay above and below the 6,000 foot lqvel. With the completion of the Palmer well it appeared as a matter of fact that the top of the sand at that point lay lower than reflected in the earlier survey. And, such being true, without change in the depth of the bottom of the sand as established, there was reflected at that point a less thickness of sand than was considered in fixing the lease percentage of the pool production. Touching the effect of such discovery the Commission states in its report the following:

“In addition to the proceedings and notices aforesaid, further mention is here made of the fact that during the course of said hearing, The Palmer Oil Corporation drilled and completed an additional well on a lease owned by it in the aforesaid field, necessitating a relatively slight change in the percentage of interests of the several separately owned tracts in the field shown in ‘Exhibit B’ attached to the recommended Plan of Unitization, and also necessitating the inclusion of such additional well in ‘Exhibit D’ attached to said Plan of Unitization.”

As a result, the original exhibits which reflected said percentages were amended so as to reflect the .lease percentage at 7.67294% (same being .01006 less than before) and the shares of Palmer and Gulf therein at 5.51614% and 2.15680%, respectively.

The question before the Commission was the extent the common thickness of the sand on the lease as previously fixed was to be diminished by reason of the diminution of thickness reflected at the point where the well was drilled. Palmer contends in substance that the thickness was 108 feet, while the Commission found same to be 96 feet. The question of the thickness turned chiefly upon the depth of the top of the sand as reflected in said well. The testimony was conflicting. The Commission determined that the weight of the evidence lay in the testimony of one Montgomery, a witness for proponents, which was concurred in by the entire Geological Committee, and not in that of one McKee, a witness for Palmer, who testified to the contrary, and so found. Under the rules hereinbefore announced we cannot say that holding of the Commission is contrary to the weight of the evidence nor that the percentages prescribes thereon are arbitrary.

The order of the Commission is affirmed.

The writ prayed in cause No. 33708 is denied.

ARNOLD, C. J., and CORN, HALLEY, and JOHNSON, JJ., concur. LUT-TRELL, V. C. J., and WELCH, DAVI-SON, and O’NEAL, JJ., dissent.