This suit was brought into a federal court for Louisiana by Herkness, an owner of natural gas wells, to enjoin the Commissioner of Conservation and the Attorney General of that State from interfering with the erection, on plaintiff's land, and the operation, of a factory for the manufacture of carbon black from natural gas. The bill alleges that a number of other persons are now engaged in that business and have been for many years with the sanction of the Department of Conservation; that it had been its practice to require persons about to engage in such manufacture to apply for a permit; that one of its rules declares unlawful the erection of such a factory without having first obtained one; that plaintiff was refused a permit; that the sole ground of refusal was the policy recently announced by the Commissioner not to issue a permit for the erection of any new carbon black plants and to gradually reduce the amount of gas which holders of permits to operate existing plants can utilize for that purpose; and that this policy has become a fixed rule of administration. The bill charges that the order refusing to issue a permit to the plaintiff is void, because in excess of the powers conferred by the statutes or which could be conferred under the constitution of the State; and also because it violates the due process clause and the equal protection clause of the Fourteenth Amendment. A restraining order and an interlocutory injunction, as well as a permanent injunction, were sought. There were adequate allegations of threatened irreparable injury.
The District Judge issued a restraining order. The hearing upon the application for an interlocutory injunction was had before three judges, under paragraph 266 of the Judicial Code as amended (28 USCA § 380); and the case was later submitted by agreement as upon final hearing. The court denied the injunction and dismissed the bill, 11 F.(2d) 386; but later granted a restraining order pending the appeal. As the bill challenged the validity under the Federal Constitution of an order of an administrative board of the State, the District Court had jurisdiction under section 266, Oklahoma Gas Co. v. Russell, 261 U.S. 290, 43 S.C.t. 353, 67 L. Ed. 659, and this Court has jurisdiction on direct appeal. We have no occasion to consider any of the constitutional questions presented. For, in our opinion, the statutes do not purport to confer upon the Commissioner power to refuse a permit to a person able and willing to comply with the requirements prescribed by the statute. See Greene v. Louisville & Interurban Railroad Co., 244 U.S. 499, 508, 37 S.C.t. 673, 61 L. Ed. 1280, App. Cas. 1917E, 88; Dawson v. Kentucky Distilleries Co., 255 U.S. 388, 295, 41 S.C.t. 272, 65 L. Ed. 638.