*1 etCo., al. v. Foote, et al. Superior Oil 23, 1953

Feb.

No. Adv. S. 101 2d 137 So. B.W n Wagner Thomas, Smith, Wells, Wells & Murray appellants. Christian, for

jBuchanan Montgomery, & and Alexander & Alexander appellees. and J. E. Sldnner, *7 J.

Roberds, Hughes, Henry Foote, Alfred Urban B. N. Toler and appellees, together Gordon, S. owned W. interest a one-half under, rights in the mineral in and three tracts gas of land in located the Gwinville oil and field in Jef- County, Mississippi. parcels ferson Davis The embrace respectfully, situated, 105 and acres of 19 and tracts Appellees gas field. in said oil and 32 and 33 in units Company, against Superior as Oil filed the bill herein royalty and mineral owners other of, lessee in, certain among things, (1) seeking, other tracts, said three acquired prior Superior, were cancel leases of which complainants, acquisition rights a cloud to upon of the as op- (2) Superior, titles, their to recover of as royalty erating entire value of their one-half lessee, the Superior gas produced by in which had been interests from three proportion upon gas wells—one each of said units —in complainants’ acreage bore to the total as development acreage operation of each less “the cost of unit, cancelled The chancellor of such wells.” accounting money an and rendered a leases, ordered judgment against Superior prayed as bill. Superior companion to that Oil Com is a case

This day pany Roy Beery, handed down. 38,528, No. this v. substantially controlling in the are the same facts therein, cited settle and those case, two That cases. only might questions case. We involved this essential adjudicated that the units three add that Court this has validly legally Green established. were here involved 100, and Superior 2d Miss.........., ......... So. Co., Oil Superior Miss.........., ......... 59 So. al., et Foote, v. Co. Oil 2d 85. valid, here involved are the leases means that

This only appellees entitled to their subsisting are leases and produced gas under said proportionate of the share leases. remanded.

Reversed Arrington, Kyle, Holmes, Eth- J., and McGehee, G. ridge JJconcur. Lotterhos, and part. no took

Hall, J.,

Lee, J., Dissenting. my in the case dissent reasons stated the same

For Roy Beery, Company, Superior No. et al. v. The Oil

737 respectfully day in this I dissent decided, 38,528,this ease. OF ERROR

ON SUGGESTION Apr. 27, 1953 2d 355 46 64 So. Adv. S. C. J.

McGehee, February opinion herein on In the rendered former companion this case was 23, 1953, it was stated that Beery, Superior Company Boy No. one v. to that of Oil controlling day; that decided on the 38.528, same substantially in the two cases. facts are the same opinion Court this then called attention to the fact that gas adjudicated in three units had theretofore that the validly legally No. were, Unit volved established. case in the 10 of the Field involved Gwinville was Gas Superior Company, (Miss.) 59 So. v. The Green Oil gas were in 2d 33 in field 100, units said Superior Company Foote, al., volved in The et v. Oil 857, Miss. So. 2d 85. suggestion that strongly urged of error on

It now is controlled not be should case the instant decision February in the 1953, 23, on rendered the decision Boy Beery, Company Superior No. case of The Oil Beery No. Unit case, that in 38.528, for the reason gas completely fully and the established, 39 had been respective tracts to the been allocated allowables had prior the enactment No. 39 of land in the said Unit of 33 in the instant case were Chap. 32 and Nos. 1948, whereas Units 256, Laws until after

not established proceed- 1948, of the said act of since the enactment begun ings No. 32 were of Unit for the establishment April was and the first allowable order 23, 1948, on September proceedings on and the rendered begun May No. 33 on of Unit were establishment for. on and ended with the first allowable order

13, 1948, act of 1948 that, therefore, 20, 1948, October limiting drilling prohibited units to acres or less

738 containing acres as of these two units establishment each. reported appeal former the the decision on

However, judicata the 85, res in 214 59 So. 2d 857, Miss. renders legally question were units' whether or not these of containing each. in 320 acres established 1948 as Chap. 256, repealing in contained the clause Moreover, Chap. whereby and 1932, of 117, repealed, Laws of Laws 1948, pro- Chap. expressly were 305, 1936, Laws of repeal shall however, that: “The laws, vided of said regulations, heretofore any orders or rules, not affect made ity author- under the Board and Gas the State Oil regulations, and orders rules, all but such thereof, period of and effective remain valid be and shall only act, of (6) effective date this the from six months validity full and be as shall and effectiveness and their promul- made if the were extent as same the same to ” authority . gated . . act; of this under the oper in their Among extended which were the orders August period were those the months’ ation for six providing September for the estab 11, 1947, 11, 1947, drilling gas 320 acres more than units of not lishment of and requiring oil and were defined as owners, the who pool gas we held on Febru lessees, leases; to their Company Superior ary in 23, 1953, the case of The Oil require gas Beery, the oil v. No. that to 38,528, gas pool of a their in the establishment lessees to unit leases primary extending term of the effect of the has placed all in the unit are leases where of the lands prior production by being in well drained from the unit expiration ten-year primary to the of the term of lease. fully prior

Unit No. 10 was to the enact- established Chap. ment of 256, 1948, Laws of and as held Green Superior Company, legislation The applicable Oil 100, So..2d Chap.

thereto was contained in Laws Chap. 1932, and 1936. 305, Laws of saving As Units Nos. clause of the places any period act of unit within established of six from months date effective of the act they same status if as had been established under the regulations rules and or orders the State andOil G-as Board theretofore made, since the act of here- 1948, as *10 ‘‘ expressly tofore validity shown, declares that their and effectiveness shall be as full and to the same extent as if the promulgated same were made and under the au- ” thority of this . . . act; All of the units involved in this fully suit completely were and all established, of the placed lands in production each of prior the units were in expiration to the ten-year primary of the term of the question. leases questions argued All other raised in the on briefs suggestion the of error the instant case have been opinion suggestion answered in the on the of error in Superior Company Roy Beery, The Oil v. No. 38,528, day this rendered.

Suggestion of error overruled. Kyle, Arrington Ethridge, Roberds, Holmes, JJ., part. J., concur. took no Hall dissenting: J.,

Lotterhos, opinion my suggestion It is that the of error should opin- be dissenting sustained. Reference is made to the day Superior Company ion this filed in The Roy Oil Beery, 38,528. No. The same reasons for the dissent apply in that case in the case at bar. proposition

There is an additional in the case now opinion, my under consideration which, in was erron- eously by majority. appears decided It that Unit No. 32 and Unit No. 33 were established after the enact- Chap. ment of 256, of 1948, Laws but within six months after question the effective date of said statute. is authority power whether the board had the to force integration of mineral interests within these units at that time.

Again the difference and distinction between the estab- drilling lishment of a forcing integration unit and important consid- is the pooling interests of mineral or separate transactions, they and distinct are If eration. whether determine then we must to be, I them as believe integration power within to force the had board period, that it if be conceded even it months’ that six drilling power unit. to establish had the Chap. Chap. By 1932, Laws of 256, 117, 21 of Sec. said Chap. certain other as well as Laws and statutes, provided, repealed. however, that this It is

are regulations, repeal orders there- rules, or shall affect not Board under made the State Oil Gas tofore regula- authority that such statutes, rules, but of said and effec- be and remain-valid orders “shall period tions and (6) only from effec- months for a six tive validity and effectiveness act, and their tive date of this as if the same and to extent shall be as full same authority promulgated of this under the were made and Thereby regulations providing for rules and act.” those *11 spacing in field were in of 320 the Gwinville units during acres preserved period, months’ but'it is to said six validity weré to be be that and effectiveness noted their they promul- as if had been made and to the same extent gated the 1948 act. under 9(a) 9(b) 6(c) (11)

Turning to and now Secs. Chap. expressly we the said find that board was power drilling granted units and that the to establish imposed respect with size there of those units. no limitation to the was regulations Therefore, the rules and prior made acts so extended were effective under the as empower 320 acre the establishment of to authorize drilling units in the field. Previous decisions Gwinville upheld of this Court have the establishment of such period However, within of time. when we units that Chap. 10(a) examine Sec. ent of said we find a differ- provided separately It there that when situation. is drilling owned tracts are embraced within an established person owning drilling rights unit “the the therein and rights production may to in share therefrom” agree integrate In there ease, this to their interests. voluntary acreage, im a so that no limitation on the is parties might tegration by agreement of the of interests accomplished drilling a 320 acre unit. But be within persons provided it agreed that if have not is further such may, integrate the board “as interests, to their drilling in area or but as to less, to unit of acres require persons drilling greater no such area,” unit of integrate to is that their interests. It obvious imposed positively categorically acre limitation is prevent forcing integration board from in the exceeding 40 acres. case of units opinion original in

The effect of the the case at bar opinion majority suggestion error and of the on the power in is to hold that board had the and could integration pooling in- fact force the of the mineral power consisting in a terests unit of 320 acres. That is supposed adopt- regulations been to have exercised under preserved ed under the 1932 and 1936 in statutes repeal by saving effect after the of those statutes clause Sec. 21 above mentioned. difficulty saving expressly is that clause states regulations

that those would rules and so carried forward promul- be effective to the same extent as if made and gated under the act. Since the 1948 Sec. act, 10(a), expressly prohibits integration forced in case exceeding regu- units acres in area, those rules and efficacy lations can have no to authorize the board to take such action. joins

Lee, J., dissent. this MOTION TO RETAX COSTS

ON *12 8, 1953 34 2d 453 June Adv. S. 176 65 So. J.

Ethridge, February by 23, Court on This case was decided April suggestion on a of error was overruled 1953, and Superior Company 137, 63 So. 2d Foote, 1953. 27, Oil 742

suggestion May error 64 355. overruled, of So. 2d On Chancery 13th Bass, Clifford Clerk of Davis Jefferson County, re- where case was filed a motion to tried, chancery original tax the in this The costs case. clerk’s transcript computed certificate of record had fees transcript per the costs of the at under words, 15c 100 (t), old statutes, Code of Sections 1942, (r), paragraph The motion averred thereof. the last computed been under the should have that such costs per Hence 25c 1950 statute on the basis of words. on latter to retax the costs movant Court asked Appellees contesting filed a brief several basis. have issues with movant. Chapter being 1942, 1950,

Miss. Code of 291, Laws (1952 Supp.), Section 3932 on amended the former statute chancery ex- fees of clerks of the but made no court, press provision transcript for the fees. The 1950 clerk’s ap- (t), amendment of Section omitted subsection prior plicable was in the act to 1950. which item, to that Chapter 239, amended Code 1950, Laws However, Miss. primarily of deals with fees which of Section Chap- paragraph The of court. last the circuit clerks of ter provides: ‘‘ required by furnishing making law, records For final copies papers transcripts re- file, on records, or required cording copied, law to be recorded and to demand and instruments person any which is entitled or of (25c) copies, every twenty-five for hun- cents receive figures one and four shall be considered words, dred be allowed to all word; same fees shall officers copies papers certifying making for of records or (Em- certify.” copy they which to are authorized phasis supplied.) quoted purpose effect of the We think that the ‘‘ ’’

provision all includ- officers, a fee is establish per ing chancery clerks, of 25c 100 words for “furnish- ing transcripts phrase “all officers” records.” provision expresses ap- legislative intent to make that *13 plicable perform all to court clerks who the stated func- interpretation only tions. This is manifest not because particular of the terms of the statute but also because a interpretation contrary gap would create a in serious system the fee for court clerks.

Appellee’s points large brief on the motion out that part photostat of the record in this case consists of copies of such exhibits, as orders and rules of the State & Appel- Oil Gas Board, and other various documents. suggests statutory lee fixing any par- that there is no of paid ticular chancery fee making to be to the clerk for photostat copies transcript. of the exhibits Miss. Chapter 196, Laws 1944, amending Sections and 2, provides Code of 1942, Section 878, that it shall be the duty chancery of of the clerk court to record certain by entering handwriting instruments typewriting either them in or printed by filling by

or out forms, “or re- photostat cording by perma- equally machine or other * * process photographic nent Legislature In 1952, the supervisors pur-

authorized boards of to photostating equipment, chase machines which shall supervision be under the chancery control and of the Chapter clerk. Miss. Laws 1952, 225, Code of Sec- 1942, Considering tion together 2900.7. these statutes with paragraph Chapter the last of 239, Laws of which provides a every fee clerk’s of 25c “fur- words ’’ nishing transcripts of records, we think that it was legislative purpose system applicable to make this fee transcript pages reproduced by typewriting either or process. photostating clerk, chancery comply

However, failed to with preparing statutes decisions this Court his transcript certified statement fees. The first item reporter’s according therein is the court fee to the bill stenographer’s transcript, attached to the court $64.75. reporter’s complies with bill the rule in McDonald Spence, stating transcribing infra, that it is “for * * * per 64,750words at the rate of 100 words $.10 * * chancery certificate concern- clerk’s But the ‘‘Transcript.........................-...............words ing his fees states: 1788-r) per (Code . . . 1930, Sec. $687.85.” at 15‡ apparently later filed com- An amended puting was statement transcript per 25c total words, fees at *14 leaving words for but blank the number of $962.99, still litigants charged. which the were Both statements of transcript wholly comply fail with costs to the statutes. provides: of 1942, Code Section transcript a on the make statement clerk shall “The Supreme Court of the amount the to of record sent the transcript, it and whether or not has of his fee for such paid this, if not do him; and, he shall to been of the the.clerk required Supreme be exe- shall not to issue Court costs, nor and receive to demand the cution such same.” a cause shall be deter- 1596 states: “When

Section peace justice the of and the of court, the clerk the mined, in the tax the costs of case him, shall cases had before specifying therein each make a sec- thereof, and out bill paragraph each or of law, tion of the subdivision by any, fee item file if which each or section, virtue of charged he shall the taxed, therein is or costs papers same with the in cause.” the provides: be not Section 1597 “Fees and costs shall payable person produced by any to the be until there person chargeable a or bill, with account the same particulars signed writing, containing fees, of such the by intelligently ex- the clerk or in which shall be officer, pressed specified if law, and, each of the section by paragraph of section virtue any, subdivision or each any charged. if fee be And shall fee which each is party pay- production paid bill, of such without the to demand and be entitled ing at all times the same shall copy receiving a such same from the officer have charge.” bill without Spence, So. 607 Miss.

In McDonald (1937), with reference these statutes construed the Court Appel- of costs. statement certified a circuit clerk’s to ground on the that retax costs to had moved lants court and the court of the trial clerk allowed to the fees by reporter law. The taxation allowed more than were aside and trial court was set held of costs incurred quoted require statutes that the be void. It was said to render detailed state- trial court clerk of the transcript, making that the fees for ment of his aggregate showing merely the amount clerk’s certificate transcript making other and for services of fees for therefor; taxation of that would not authorize costs these mandatory upon'court be are clerks must statutes complied by a detailed itemization of fees for the with transcript, taxation of before a costs-can be had. etc., then that the clerk of the trial court could Court said certifying file an amended certificate of costs to the Supreme Court “the number of words in the Clerk transcript fee therefor.” In him, and his made of costs does not show how the statement case, instant transcript. Although figure that many in the are words *15 n by a mathematical cal- this Court obtained could be figures furnished the certificate, the from culation places duty upon think the clerks the statute that we each of the to itemize various costs of courts of trial type transcript, itemization and that one of would transcript. in the number of words statute be the litigants requires order that the this, clerk to do fully may of clerk understand basis the costs and the against losing party. taxed which will be Failure requirements comply with these renders the state- of null and void. costs ment. foregoing chancery the motion reasons,

For the of ‡ 15‡ on the of 25 clerk to retax costs per basis of instead provided chancery sustained, 100 words is clerk promptly of furnishes the this Court with Clerk an transcript amended, certified statement of costs of which transcript bn it the number of in the shows words any other relevant detailed items. transcript, Motion to retax on of costs basis 25$T

per Chancery 100 words on condition that the sustained, Clerk furnish a amended statement of correct, costs. except part. Hall,

All Justices who took no J., concur, Thomas v. State. 28, 1953

Feb. No. 38653 Adv. S. So. 2d King, King appellant. & for Attorney Ethridge, ap- H.

Geo. Assistant General, pellee.

Ethridge, J. Appellant Reedy C. Thomas was indicted for the mur- McMurtray der of J. C. was convicted in the Cir- County manslaughter. cuit Court Holmes He ar- jury contrary gues verdict of the that the is to the over- weight whelming of the reasonable and believable evi- The crime occurred on dence. October 24, 1951, while McMurtray, appellant Negroes and other were work- *16 bridge building project ing aon for a railroad near Appellant McMurtray living camp Tchula. were in a shooting car of the railroad. The occurred around 4:15 camp they car P. M. in the after had ceased work.