The opinion of the court was delivered by
Jackson, J.:
In this appeal, appellants seek to have the court examine the mandate of the Supreme Court of the United States which reversed the decision of this court when the instant case was before the court in 1956 as found in Cities Service Gas Co. v. State Corporation Commission, 180 Kan. 454, 304 P. 2d 528. Since the detailed facts of this case were completely set forth in our former opinion, we shall not burden the record by detailing them here.
In our former decision the court held valid the order of the State Corporation Commission fixing a minimum price of eleven cents per thousand cubic feet, 14.65# p. s. i. a., at the wellhead for all persons, firms or corporations taking natural gas or causing gas to be taken from the Hugoton gas field in Kansas on or after January 1, 1954. As noted above, this decision was reversed by the Supreme Court of the United States in a per curiam opinion found in Cities Service v. State Comm'n, 355 U. S. 391, 2 L. Ed. 2d 355, 78 S. Ct. 381, rehearing denied 355 U. S. 967, 2 L. Ed. 2d 542, 78 S. Ct. 531, upon the basis that the regulation of the price of natural gas at the wellhead was within the exclusive jurisdiction of the Federal Power Commission.
The appellants here have urged the court that the Federal Power Commission did not take jurisdiction over the pricing of natural gas at the wellhead until June 7, 1954; that the production of gas at the well is not a matter of interstate commerce although it must be conceded that a price for such gas will be reflected in the prices charged for gas in interstate commerce and therefore, the price at the wellhead must be conceded to affect interstate commerce as that term is used in constitutional law. The corporation commission points out that at die time its order went into force on January 1, 1954, the Federal Power Commission had not exercised any authority over the price of natural gas at the wellhead in the Hugo-ton field, and that therefore, since the natural gas was not yet in interstate commerce, the state had power to regulate the price until the Federal Power Commission occupied the field citing [542]*542Missouri Pacific Ry. v. Larabee Mills, 211 U. S. 612, 53 L. Ed. 352, 29 S. Ct. 214, and other cases.
The trouble with this contention is that our former decision was made in 1956 long after the decision of the case of Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, 98 L. Ed. 1035, 74 S. Ct. 794. In that case, the Supreme Court of the United States held that sales of natural gas owned by an independent producer at the mouth of an interstate pipe line were subject to regulation by the Federal Power Commission under the natural gas act of 1938. This case was decided on June 7,1954, and it was after this decision that the Federal Power Commission began to assert authority to regulate the price of natural gas in Hugoton field. This court was not unmindful of that decisionn or of the dissent of Mr. Justice Douglas therein in which he said:
“There are practical considerations which buttress that position and lead me to conclude that we should not reverse the Commission in the present case. If Phillips’ sales can be regulated, then the Commission can set a rate base for Phillips. A rate base for Phillips must of necessity include all of Phillips’ producing and gathering properties; and supervision over its operating expenses necessarily includes supervision over its producting and gathering expenses. We held in Colorado Interstate Gas Co. v. Federal Power Commission, 324 U. S. 581, that the Commission’s control extended that far in the case of an interstate pipeline company which owned producing and gathering properties. And so it had to be, if regulation of the pipelines that owned their own gas supplies was to be effective. But an understanding of what regulation entails should lead to a different result in this case. The fastening of rate regulation on this independent p-roducer brings ‘the production or gathering of natural gas’ under effective federal control, in spite of the fact that Congress has made that phase of the natural gas business exempt from regulation. The effect is certain to be profound. The price at which the independent producer can sell his gas determines the price he is able or willing to pay for it (if he buys from other wells). The sales price determines his profits. And his profits and the profits of all the other gatherers, whose gas moves into the interstate pipelines, have profound effects on the rate of production, the methods of production, the old wells that are continued in production, the new ones explored, etc. Regulating the price at which the independent producer can sell his gas regulates his business in the most vital way any business can be regulated. That regulation largely nullifies the exemption granted by Congress.” (pp. 689-690.)
It might be said further that this court was not unmindful of the decision in Natural Gas Co. v. Panoma Corp., 349 U. S. 44, 99 L. Ed. 866, 75 S. Ct. 576 where the Supreme Court of the United States held that:
“A State may not fix a minimum price to be paid for natural gas, after its production and gathering has ended, by a company which transports the gas [543]*543for resale in interstate commerce; because such sale and transportation are subject to regulation by the Federal Power Commission exclusively.” (Italics supplied.)
In fact, this court also was cognizant of the warning of the United States Supreme Court in the case of Cities Service Co. v. Peerless Co., 340 U. S. 179, 95 L. Ed. 190, 71 S. Ct. 215, in which after holding a similar order of the state of Oklahoma valid in relation to due process as to a minimum price for natural gas at the wellhead, the court observed:
“Appellant does not contend that the orders conflict with the federal authority asserted by the Natural Gas Act, 52 Stat. 821 (1938), 15 U. S. C. §§717 et seq. (1948). The Federal Power Commission has not participated in these proceedings. Whether the Gas Act authorizes the Power Commission to set field prices on sales by independent producers, or leaves that function to the states, is not before this Court.” (p. 188.)
Despite all of these warnings and questions, this court in its former decision in this case felt that in view of the provisions of the natural gas act, the state still had a right to use the. fixing of a minimum price at the wellhead as a means of conservation in the production of natural gas. The important question and the decision thereof by this court in its former opinion reads as follows:
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The opinion of the court was delivered by
Jackson, J.:
In this appeal, appellants seek to have the court examine the mandate of the Supreme Court of the United States which reversed the decision of this court when the instant case was before the court in 1956 as found in Cities Service Gas Co. v. State Corporation Commission, 180 Kan. 454, 304 P. 2d 528. Since the detailed facts of this case were completely set forth in our former opinion, we shall not burden the record by detailing them here.
In our former decision the court held valid the order of the State Corporation Commission fixing a minimum price of eleven cents per thousand cubic feet, 14.65# p. s. i. a., at the wellhead for all persons, firms or corporations taking natural gas or causing gas to be taken from the Hugoton gas field in Kansas on or after January 1, 1954. As noted above, this decision was reversed by the Supreme Court of the United States in a per curiam opinion found in Cities Service v. State Comm'n, 355 U. S. 391, 2 L. Ed. 2d 355, 78 S. Ct. 381, rehearing denied 355 U. S. 967, 2 L. Ed. 2d 542, 78 S. Ct. 531, upon the basis that the regulation of the price of natural gas at the wellhead was within the exclusive jurisdiction of the Federal Power Commission.
The appellants here have urged the court that the Federal Power Commission did not take jurisdiction over the pricing of natural gas at the wellhead until June 7, 1954; that the production of gas at the well is not a matter of interstate commerce although it must be conceded that a price for such gas will be reflected in the prices charged for gas in interstate commerce and therefore, the price at the wellhead must be conceded to affect interstate commerce as that term is used in constitutional law. The corporation commission points out that at die time its order went into force on January 1, 1954, the Federal Power Commission had not exercised any authority over the price of natural gas at the wellhead in the Hugo-ton field, and that therefore, since the natural gas was not yet in interstate commerce, the state had power to regulate the price until the Federal Power Commission occupied the field citing [542]*542Missouri Pacific Ry. v. Larabee Mills, 211 U. S. 612, 53 L. Ed. 352, 29 S. Ct. 214, and other cases.
The trouble with this contention is that our former decision was made in 1956 long after the decision of the case of Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, 98 L. Ed. 1035, 74 S. Ct. 794. In that case, the Supreme Court of the United States held that sales of natural gas owned by an independent producer at the mouth of an interstate pipe line were subject to regulation by the Federal Power Commission under the natural gas act of 1938. This case was decided on June 7,1954, and it was after this decision that the Federal Power Commission began to assert authority to regulate the price of natural gas in Hugoton field. This court was not unmindful of that decisionn or of the dissent of Mr. Justice Douglas therein in which he said:
“There are practical considerations which buttress that position and lead me to conclude that we should not reverse the Commission in the present case. If Phillips’ sales can be regulated, then the Commission can set a rate base for Phillips. A rate base for Phillips must of necessity include all of Phillips’ producing and gathering properties; and supervision over its operating expenses necessarily includes supervision over its producting and gathering expenses. We held in Colorado Interstate Gas Co. v. Federal Power Commission, 324 U. S. 581, that the Commission’s control extended that far in the case of an interstate pipeline company which owned producing and gathering properties. And so it had to be, if regulation of the pipelines that owned their own gas supplies was to be effective. But an understanding of what regulation entails should lead to a different result in this case. The fastening of rate regulation on this independent p-roducer brings ‘the production or gathering of natural gas’ under effective federal control, in spite of the fact that Congress has made that phase of the natural gas business exempt from regulation. The effect is certain to be profound. The price at which the independent producer can sell his gas determines the price he is able or willing to pay for it (if he buys from other wells). The sales price determines his profits. And his profits and the profits of all the other gatherers, whose gas moves into the interstate pipelines, have profound effects on the rate of production, the methods of production, the old wells that are continued in production, the new ones explored, etc. Regulating the price at which the independent producer can sell his gas regulates his business in the most vital way any business can be regulated. That regulation largely nullifies the exemption granted by Congress.” (pp. 689-690.)
It might be said further that this court was not unmindful of the decision in Natural Gas Co. v. Panoma Corp., 349 U. S. 44, 99 L. Ed. 866, 75 S. Ct. 576 where the Supreme Court of the United States held that:
“A State may not fix a minimum price to be paid for natural gas, after its production and gathering has ended, by a company which transports the gas [543]*543for resale in interstate commerce; because such sale and transportation are subject to regulation by the Federal Power Commission exclusively.” (Italics supplied.)
In fact, this court also was cognizant of the warning of the United States Supreme Court in the case of Cities Service Co. v. Peerless Co., 340 U. S. 179, 95 L. Ed. 190, 71 S. Ct. 215, in which after holding a similar order of the state of Oklahoma valid in relation to due process as to a minimum price for natural gas at the wellhead, the court observed:
“Appellant does not contend that the orders conflict with the federal authority asserted by the Natural Gas Act, 52 Stat. 821 (1938), 15 U. S. C. §§717 et seq. (1948). The Federal Power Commission has not participated in these proceedings. Whether the Gas Act authorizes the Power Commission to set field prices on sales by independent producers, or leaves that function to the states, is not before this Court.” (p. 188.)
Despite all of these warnings and questions, this court in its former decision in this case felt that in view of the provisions of the natural gas act, the state still had a right to use the. fixing of a minimum price at the wellhead as a means of conservation in the production of natural gas. The important question and the decision thereof by this court in its former opinion reads as follows:
“It suffices to say, that after a careful analysis thereof, we have no difficulty in construing its terms to mean that no person, firm or corporation — first of all the producer — can lift or take gas in its natural state from the depths of the Hugoton Field to a point further than the wellhead without, as a condition precedent to its withdrawal from the common source of supply, first attributing thereto a minimum price of not less than eleven cents per M. c. f. (14.65# p. s. i. a.). So construed, recognizing as we must that under our own decisions (Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, supra; LaHarpe v. Gas Co., supra) as well as those of the highest court of the land (see, e. g., Thompson v. Consolidated Gas Co., 300 U. S. 55, 81 L. ed. 510, 57 S. Ct. 364; Interstate Gas Co. v. Power Comm’n, 331 U. S. 682, 91 L. ed. 1742, 67 S. Ct. 1482; Cities Service Co. v. Peerless Co., 340 U. S. 179, 95 L. ed. 190, 71 S. Ct. 215; Phillips Petroleum Co. v. Oklahoma, 340 U. S. 190, 95 L. ed. 204, 71 S. Ct. 221) the Commission has power to regulate the physical production and gathering of natural gas in the interest of conservation, including the protection of correlative rights and the prevention of waste, the involved order falls squarely within the hereinafter emphasized excluding provisions of the Natural Gas Act (15 U. S. C. A. § 717[b]) which reads:
“ ‘The provisions of this chapter shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas [544]*544or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.’ (Emphasis supplied.)
“Thus,'based on our construction of the order and since the Federal Act, as heretofore quoted, expressly provides that its terms shall not apply to the production of natural gas, it appears the trial court did not err in concluding the Commission’s order should be upheld and sustained.” (pp. 461-462.)
The decision by this court was reversed by the Supreme Court of the United States, see supra, the entire opinion reading as follows:
“Per Curiam.
“The judgment is reversed. Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672; Natural Gas Pipeline Co. v. Panoma Corporation, 349 U. S. 44.”
In reversing this holding, we understand the Supreme Court of the United States to hold that on January 1, 1954, the State of Kansas had no jurisdiction to regulate the price of natural gas as it came out of the gas well since that price would affect interstate commerce and the jurisdiction of the Federal Power Commission. Besides the other cases cited above, we are referred to the case of Natural Gas Pipeline Co. of America v. Harrington, 246 F. 2d 915, rehearing denied 253 F. 2d 231, certiorari denied 356 U. S. 957, 2 L. Ed. 2d 1065, 78 S. Ct. 992, in which we are shown that the second petition for rehearing raised before the court of appeals the question of the power of the state to regulate the price of natural gas until the Federal Power Commission had taken action. The court of appeals held that this question had been foreclosed by the decisions of the Supreme Court cited above and denied the rehearing.
It is felt that nothing is to be gained by laboring this question further. The question of the validity of the order of the corporation commission on January 1, 1954, was inherent in our former decision.
The mandate of the Supreme Court of the United States described our former decision as follows:
“. . . wherein the judgment of said Supreme Court affirming the judgment of tlie District Court of Finney County, Kansas, which upheld the validity of the State Corporation Commission order fixing a minimum price of eleven cents per thousand cubic feet, 14.65# p. s. i. a., at the wellhead for all persons, firms, or corporations talcing gas or causing gas to be taken from the Hugoton Gas Field in Kansas on or after January 1, 1954, was duly entered on the 8th day of December a. d., 1956.
‘“It is ordered and adjudged by this Court that the judgment of the said Supreme Court in this cause be, and the same is hereby, reversed with costs.”
Any question of the meaning of the order of that court should have been raised with that court by the parties to that appeal. We have not been advised whether appellants raised the point on re[545]*545hearing which they now seek to inject into the case. From what has been said, it follows that the order of the district court now appealed from must be affirmed.
It is so ordered.