State v. Reagan County Purchasing Co.

The majority of the Court has come to the conclusion that there was error in the original disposition of this case, the error consisting in reversing and remanding the case for trial. It is therefore ordered that appellees' for rehearing be in all things granted, the original opinion be withdrawn, and the following substituted therefor:

This is an appeal from a judgment of the District Court of Travis County, Ninety-eighth Judicial District. This judgment denied the State all relief sought and all relief sought by the other parties by the way of cross-actions. The State instituted the action against Reagan County Purchasing Company, Inc., Humble Oil Refining Company, Big Lake Oil Company, and Group No. 1 Oil Corporation.

Plaintiff will be herein designated as "The State," the respective defendants as "Reagan," "Humble," and the other two defendants collectively as "Producers."

The State sought to recover royalties for oil produced on University lands from wells on leases held by the Producers. The petition averred that the Producers had failed to pay the State its full one-eighth royalty, if Reagan had failed to pay the Producers the price provided for in purchasing contract existing between Producers and Reagan. Privity between the State and Reagan and Humble was alleged by virtue of a contract between Humble and Reagan for the purchase and sale of the oil sold by Producers to Reagan under a contract between them and by the effect and provisions of a judgment dated the 12th day of October, 1928 by the District Court of Travis County in a case wherein the State was plaintiff and the defendants here were defendants.

Producers answered by general denial and a conditional cross-action against Reagan and Humble seeking, in the event that the State was entitled to recover additional royalty against them, to recover additional purchase money for the oil sold by them to Reagan under the contract between Producers and Reagan. The prayer of the Producers was that they recover the full value of the unpaid purchase price of the oil delivered under the contract to Reagan, in the event the State recovered against them. The effect and provisions of the judgment pled by the State were relied upon to create privity between the State on the one hand and the Producers, Reagan and Humble on the other.

Reagan replied by several dilatory pleas, general denial, plea of payment in accordance with the contract; an additional cross-action against Humble in the event the State or Producers recovered anything against it. This additional cross-action was based on the contract between Reagan and Humble and on the provisions of the judgment. Further, an additional cross-action was asserted against Producers.

Humble replied by dilatory pleas, general denial and cross-action against Reagan.

The foregoing is not an attempt to state fully even the substance of the pleadings. The transcript alone consists of over seven hundred and fifty single-spaced pages. It is thought that the statement made will be a sufficient basis for a discussion of the issues involved, rather meager though it be.

The rights asserted by all parties herein are contractual. The basis of such rights are evidenced by documents. These documents are as follows:

1. Various leases from the State to the Producers;

2. Contract between Producers and Reagan dated November 24, 1924;

3. Contract between Humble and Reagan dated December 15, 1924;

4. The judgment in Cause No. 42752, District Court of Travis County, entered October 12, 1928.

These leases were issued under the Act of 1917, Chapter 83, Vernon's Ann.Civ.St. art. 5338 et seq. The legal effect and obligations of leases of this character have many times been determined by the Supreme Court. By the lease the lessee is vested with full title to all of the oil underlying the land included in the lease. The one-eighth royalty provided for in favor of the State represents purchase money. Theisen v. Robison, 117 Tex. 489, 8 S.W.2d 646, 652. In that case it was said: "In Sawyer v. Robison, 114 Tex. 437, 268 S.W. 151, it was determined that — An oil lease under the 1917 act ``occupies exactly the same legal status as a grant from the state to land. It concedes to the lessee and his assigns all the right and title of the state to the estate dealt with, under the conditions stated therein, the same as a patent conveys the title of the state to land.'"

From the fact of the title of the oil in place, it follows that the lessee has the full legal title to the oil when captured or produced. "Full legal title" implies the right and power to sell and convey to others. Stephens County v. Mid-Kansas Oil Gas Co., 113 Tex. 160,254 S.W. 290, 292, 29 A.L.R. 566.

In short, the right of the State as to the oil when same was produced was not an undivided one-eighth interest therein. Her right was to be paid by the lessee monthly an amount equaling one-eighth of the full value of the oil produced by the lessee. This is the provision of the leases. Such provision is provided for and enjoined by the statute authorizing the lease. Acts 1917, Chapter 83, Vernon's Ann.Civ.St. art. 5338 et seq.

Prior to November 24, 1924, the Producers drilled a large number of oil wells on some of the leases in question here, securing large production. This contract was preceded by another contract in which the creation of Reagan was one of the provisions thereof. It is not thought necessary to state the terms of this preliminary contract. A large quantity of oil was sold thereunder on the same terms as provided for in the contract of November 24, 1924. It is not deemed necessary to further state the terms of the preliminary contract, a general statement thereof is made in the opinion of the Austin Court of Civil Appeals on the appeal from the order overruling Reagan's plea of privilege herein. Reagan County Purchasing Company et al. v. State, Tex.Civ.App. 65 S.W.2d 353.

The contract of November 24th between Producers and Reagan provided for the sale by Producers to Reagan of ten thousand barrels of oil per day between March 1st and December 1, 1925, and thereafter up to twenty thousand barrels per day; further provided that all covenants should run with Producers' leasehold estates.

Much of the controversy here arises over the proper construction of the price clause of the purchasing contract. The provisions thereof are as follows: "The Purchasing Company agrees to pay and the Producers shall receive for the petroleum oil sold and delivered by the Producers to the Purchasing Company under this agreement the fair market price of such oil on the date same is delivered by the Producers into the pipe line and gathering system of the Purchasing Company. The fair market price of such oil on the date it is delivered shall be ascertained and determined as follows: The Purchasing Company shall, at the time of remitting payment for any such oil received by it, ascertain the average posted price in the Mid-Continent Field for oil of similar gravity on the date such oil was delivered to the Purchasing Company, by such of said general Purchasing Companies hereinafter named, not less than two in number, as shall on said respective delivery dates be purchasing oil of similar gravity in the Mid-Continent Field at their respective posted prices. The general Purchasing Companies whose posted price shall be taken and considered for the purpose of determining the aforesaid average posted price, shall be the Prairie Oil and Gas Company, The Texas Company, the Gulf Oil Corporation, the Humble Oil and Refining Company, and the Magnolia Petroleum Company. Any price posted by any subsidiary company and/or purchasing agency of any of the aforesaid companies shall be treated and considered as a posted price of the principal or parent company of any such subsidiary company or agency. The term ``Average Posted Price' as used in this agreement, shall be construed to mean the price or quotient obtained by dividing the sum of all the posted prices on any given date of all the aforesaid purchasing companies whose price or prices, under this agreement are authorized to be considered, by the number of said posted prices. At the time of remitting the purchase price of any such oil to the Producers, selling and delivering the same to the Purchasing Company, the Purchasing Company shall remit to such Producer a summary of the computations used and made by the Purchasing Company in ascertaining the average posted price as herein authorized. The average posted price, as herein provided, shall be taken and treated as the fair market price of oil of similar gravity in the Mid-Continent Field and shall be conclusive upon all parties to this agreement. The average posted price as computed by the Purchasing Company, shall be accepted as correct, unless notice of objection to the correctness thereof is given by any Producer complaining to the Purchasing Company within fifteen (15) days after receipt of such remittance."

The Mid-Continent Field referred to in the clause of the contract just quoted was defined by the contract. Generally speaking, as defined in the contract, it consisted of the States of Oklahoma, Kansas, and a large portion of the State of Texas. It has not been attempted to set out the entire substance of the contract in question, but it is thought enough thereof has been stated for discussion of the issues involved.

On December 15, 1924, Reagan entered into a contract with Humble for the sale and delivery of the oil it contemplated receiving under its contract with Producers. The price clause of the Reagan-Humble contract is as follows: "The price which the buyer agrees to pay and the seller shall receive for oil sold and delivered under the preceding articles hereof each day shall be that price which on the same day the seller is required to pay and the Producers are entitled to receive for oil of similar gravity sold and delivered on the same day by the Producers to the sellers under the purchasing contract determined as therein provided, plus twenty cents (20¢) per barrel."

It should be explained here that Reagan received the oil at its gathering lines and delivered it at a pipe line specified by Humble in the contract. This was the additional service performed by Reagan in connection with its delivery of the oil to Humble.

Under the contract of November 24, 1924, Producers delivered to Reagan millions of barrels of oil for which Reagan paid them millions of dollars. This same oil has been delivered by Reagan to Humble in pursuance of the contract of December 15, 1924, and Humble has paid Reagan millions of dollars therefor.

Under the contract between Reagan and Producers Reagan had the duty of computing the price due from it for oil delivered to it, and tendering to Producers such price in accordance with the contract; further. the tender was to be accompanied by a summary of the method used in arriving at the amount due. Reagan, in tendering and making the numerous periodical settlements called for by the contract, has in every case accompanied the tender with an accurate summary as to how the amount tendered as a performance was computed. Reagan, from the first delivery of oil to it under the contract up to November, 1931, has made its tenders in accordance with its construction of the price clause of the contract. This construction has at all times been shown in the summaries accompanying the tenders. All payments that have been made have been made in accordance with Reagan's construction of the contract.

In applying the price clause of the purchasing contract, Reagan considered equal prices appearing in the postings of one of the companies whose posted prices were to be applied and were applied by the bulletin to different localities in the Mid-Continent Field as one price and counted same in arriving at the price only once. In short, Reagan applied a simple average.

Appellants contend that the purchasing clause provides for the weighted average. By this is meant that the quotient of all prices offered in the Mid-Continent Field by one of the Purchasing Companies and applied by such company to particular localities, whether equal or unequal, should have been used in computing the average posted price.

The method used by Reagan in arriving at the relevant average posted price is substantially set forth in Paragraph 11 of the State's Fourth Amended Original Petition, filed on the ___ day of ______, 1939. Reagan does not deny this was substantially the method used, but justifies on the ground that it was the method provided for in the contract. Paragraph 11 also sets forth the method appellants contend should have been applied, which is the weighted average theory — all prices, equal or unequal, offered as to any field or locality in the Mid-Continent Field.

For something like a year and a half Reagan determined its liability on the basis of the simple average standard without protest on the part of the Producers. The Producers remitted one-eighth of the price paid by Reagan as fulfillment of their obligation to the State under the respective leases held by each.

As to oil not delivered under the contract, in settling with the State, the Producers used the same formula applied in the same way as for oil received by Reagan under the contract. At sometime during this period, on request of Producers, Reagan, with the assent of Humble, agreed to eliminate the posted prices of the Purchasing Companies as to the Thrall Field. As we understand it, this was rather an isolated field and the prevailing posted prices as to same were relatively uniformly low. After this agreement Reagan ceased to apply the posted prices for the Thrall Field, but continued the application of the standard as theretofore, with that exception.

The State, on September 21, 1926, filed suit No. 42572 in the District Court of Travis County against all the parties herein. Sought was the cancellation of the leases involved here; the cancellation of the contract of November 24, 1924 between Reagan and Producers, hereinbefore described; likewise the contract of December 15, 1924 between Reagan and Humble, hereinbefore described. For grounds of cancellation of the leases a want of conformity to law in obtaining same was averred. For the cancellation of the two State contracts, it was alleged that same were entered into for the purpose of defrauding the State out of its royalty due by virtue of the leases. There were alternative pleas as to any of the leases that might be held valid, that the lessees have failed and refused to pay the State one-eighth of the full value of the oil produced, and a recovery of the alleged deficit was sought, which deficit was alleged to amount to the sum of a million dollars.

The defendants joined issue on the State's petition. The Producers pled a conformity with the law in obtaining the leases and full payment of the royalty reserved in said leases; specially denied fraud as to the contract of November 24, 1924 and that of December 15, 1924; that the operation under those two contracts had resulted in benefit to the State. Reagan and Humble answered separately denying any fraud; further denied any contract liability to the State.

This action was determined on October 12, 1928 by a judgment. The judgment denied: (1) the cancellation of the contracts of November 24, 1924 and the resale contract of December 15, 1924, and provided as to said contracts that same were, as adjudicated by the court, beneficial to the State; (2) adjudicated the leases valid; (3) it further provided that in addition to royalty payment required by statute and the leases, each Producer should pay monthly to the State a sum of money equal to one-sixteenth of Reagan's monthly net profits under the resale contract of December 15, 1924. To secure compliance of the Producers with this provision, it provided for the hypothecation by the Producers of forty-nine per cent of the capital stock of Reagan, same to be delivered to the Attorney General with power of sale in case of default. It might be added here that Producers owned forty-nine per cent of the capital stock of Reagan. There were to be yearly adjustments. These payments were allotted to the Available Fund of the University, and settlement was to be made from time to time with the Auditor of that Institution. (4) Reagan was required to furnish monthly to Producers a statement of its net profit on the Reagan-Humble contract; (5) that nothing in the judgment should be construed to add any obligation or burden on Reagan or Humble not already assumed by them under purchasing and resale contracts; (6) that nothing therein contained should affect the interpretation or construction of the leases involved; (7) that the State recover from each of the Producers the sum of $500,000 this, with the exception of $50,000 thereof, representing interest, was adjudged to the Permanent University fund; (8) that the State be denied all relief except as therein provided; (9) that the Producers' title to their leases be quieted; (10) (here we give a literal copy of Paragraph 8 of the judgment, as same was numbered in the judgment):

"8. It is found, adjudged and decreed by the Court that the Reagan County Purchasing Company, Inc., and the Humble Oil Refining Company have paid the Big Lake Oil Company and Group No. 1 O.1 Corporation in full for all oil purchased up to October 1, 1928, (excepting only the payments due from Reagan County Purchasing Company, Inc., to Big Lake Oil Company or to Group No. 1 Oil Corporation, for oil delivered by said producing companies during the month of September, 1928), and that Big Lake Oil Company and Group No. 1 Oil Corporation have paid the State in full for all royalty on account of such oil (excepting only the royalty payable upon account of production from said leases during the month of September, 1928); but this judgment is not to be taken as a construction of the purchasing contract of November 24, 1924, as applied to sales of oil under said contract, made prior to October 1, 1928, and the future construction of this contract shall remain open just as though this Decree had not been rendered, except that no questions may be raised as to payments or liability claimed for oil delivered prior to October 1, 1928. In the future if the Reagan County Purchasing Company, Inc., shall ascertain and pay the Big Lake Oil Company and/or Group No. 1 Oil Corporation a price for said oil which said Big Lake Oil Company and/or Group No. 1 Oil Corporation should deem insufficient under a proper construction of the price clause of the said contract, and a controversy should arise as to the proper construction thereof, then the State shall join the producing company or companies or intervene in such suit or suits as shall be necessary to construe the contract and recover the additional amount claimed, and shall be bound by any such final judgment which may be rendered by a Court of competent jurisdiction construing said contract and decreeing the correct amount due thereon."

On the quoted paragraph of the judgment taken in connection with the rest of the judgment, the State founded her case. If this judgment, considered as such, and wherein it evidenced the contract, has not the substantial effect asserted by the State, the State's case has failed. If the State's case failed, the action of the trial court in instructing a verdict was correct, and a correct judgment was entered on the verdict.

The Producers assert no right against any of the other defendants unless the State established a liability against them; Reagan asserts no right against Humble unless the Producers and the State recover against it; Humble asserts no right against Reagan or the Producers unless it be held liable to the State.

The State's theory, as reflected by her applicable pleadings and her points here, is that she is entitled to enforce, as to her royalty, the contract of November 24, 1924 between Reagan and Producers as against Producers, Reagan and Humble.

In order to sustain the State's theory, most certainly it must be established that some act in law occurring subsequent to the execution of the contracts has brought this about. Neither Reagan nor Humble is a party to the leases. The leases measure the State's royalty as one-eighth of the value of the oil produced. The outstanding acts in law relied upon are the contract of November 24, 1924, the contract of December 15, 1924, and the judgment of October 12, 1928. In this case Reagan presented a plea of privilege to be sued in Tarrant County. This plea was overruled; Reagan appealed to the Austin Court of Civil Appeals. That Court affirmed the judgment of the trial court. Reagan County Purchasing Company et al. v. State, Tex.Civ.App. 65 S.W.2d 353.

In that case, before the trial court was not the question of what were the merits of the controversy, but the venue of the trial to determine the merits. The same question was before the Austin Court of Civil Appeals. Much that is said in the opinion in that case cannot successfully be challenged, but assent in all respects is not given to all that is said in the opinion. The different views held will appear from a comparison of that opinion with what is hereinafter said. The opinion disclaims an intention to pass upon the authority of the Attorney General to make the agreement or agreements evidenced by the judgment.

Restating the position of the State as to the judgment of October 12, 1928, by a paraphrase of what is said in her brief, it is, that said judgment was entered by agreement of all the parties at bar and approved in writing by all of these parties, and this served to integrate the leases and the purchasing contract and resale contract into a single general operating agreement and contract between all parties.

Our discussion shall proceed on the assumption that the judgment of October 12, 1928 was an agreed judgment; that as such in its purely decretal aspects it has the same force and effect as though rendered by the court after trial of the issues. By decretal, as here used, is meant the granting or denying of sought remedy. 26 Tex.Jur. p. 103, par. 401; Prince v. Frost-Johnson Lbr. Co., Tex.Civ.App. 250 S.W. 785, loc. cit. page 789, par. 8; Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786.

This latter, even though it goes beyond the pleadings, with the proviso that the court had jurisdiction to enter the judgment with proper pleadings; further, in authorizing entry of an agreed judgment, the trial judge acts ministerially. His power depends on the agreement of the parties. Pope v. Powers, 132 Tex. 80, 120 S.W.2d 432; Wyss v. Bookman, Tex.Com.App., 235 S.W. 567.

In so far as the entry evidences agreements as to contractual obligations or provisions, same acquire neither validity nor sanctity from the fact that same are included in the entry of a judgment.

As illustrating what are considered as strictly decretal provisions of the judgment, we call attention to the following: (1) That as to the cancellation of the leases the State recover nothing; (2) that the title of Producers be quieted as to the leases; (3) that the State recover from each of the Producers the sum of $500,000; (4) that the contract between Producers and Reagan and the contract between Reagan and Humble be not cancelled; (5) that all relief sought by the State not granted by the judgment be denied.

The provision contained in paragraph No. 3, wherein it is provided that thereafter the Producers shall pay to the State a sum equal to one-eighth of the net profits realized by Reagan on the Reagan-Humble contract and the various related provisions thereof, evidence a strictly contractual provision.

By the alchemy of this judgment the State contends that she is entitled to measure her royalty, not by the standard prescribed by her leases, but by a standard prescribed by contract to which she was and is not a party; further, she is entitled to claim same against Humble and Reagan as well as the Producers, although neither Humble nor Reagan is a party to such leases. The judgment also purports to confer on the State the right from its date to collect from the Producers a sum equal to one-eighth of the profits made by Reagan on the resale contract of December 15, 1924. Under this purported right it appears that she has collected a sum in excess of over $500,000 from the Producers.

This judgment does not expressly impose any duty upon Humble, either when considered as such, or in its aspect as a contract. On Reagan it purports to impose a duty of reporting monthly to Producers as to profits made from the resale contract with Humble. Reagan assented to the provision that the State would join the Producers if they sued on the contract of November 24, 1924. These matters are not either the awarding or the denial of present coercive relief. If binding and operative, they are such because the parties so agreed. The provision reciting that the contracts of November 24, 1924 and December 15, 1924 are beneficial to the State is not a judgment. At most, it is a recital of the ground upon which the Court denied the cancellation of those contracts. The judgment was the denial of the sought cancellation. This recital as a judgment was no more efficacious than if the court had assigned as a reason for denying the coercive and present consequential relief that such contracts in no way affected the legal rights of the State. Its effect as an agreement will be later discussed.

The judgment that the State was entitled to recover $500,000 against each of the Producers does not necessarily determine that the measure applied to determine the State's right was that provided for in the contract of November 24, 1924. There is some significance we think to be given in the construction of this judgment that the money recovery was against the Producers alone.

Giving the judgment the construction contended for by the State, the agreement was that thereafter the State's royalty was one-eighth of the amount to become due the Producers under the contract of November 24, 1924, plus a sum equaling one-eighth of the net profits realized by Reagan from the resale contract of December 15, 1924. This came about by a contract between the State, acting through the Attorney General, and the other parties acting through their attorneys of record.

The Attorney General is one of the Chief Magistrates of the State. Great powers have been conferred upon him by the Constitution and statutes of the State. His power, however, may be and has been limited by its source. His acts beyond the scope of his delegated power are not binding on the State.

Art. 4411, R.S. 1925, provides: "No admission, agreement or waiver, made by the Attorney General, in any action or suit in which the State is a party, shall prejudice the rights of the State." This Article has been the law of Texas since 1846.

In State v. Harney, Tex.Civ.App. 164 S.W.2d 55, 56, writ refused, it is said: "As the powers and duties of the Attorney General are prescribed by the Constitution and Statutes, those powers must be limited to those so prescribed, and may not be enlarged by the courts." See also Scribner's Sons v. Marrs, 114 Tex. 11, 262 S.W. 722.

A determination of the terms upon which the public domain may be sold is not a function pertaining to the office of the Attorney General. This is especially true where, as here, by statute the manner of sale and the terms of sale have been fixed by the Legislature. Any attempted change in such terms would be a violation of the statute, and, if effective, a partial repeal thereof.

Suppose the trial court here had had occasion to submit to the jury the market value of the oil delivered by the Producers to Reagan from October 1, 1928 to November 30, 1931 (the suit period); further assume the jurors agreed to apply the standard prescribed by the contract of November 24, 1924, and that should be their answer, and in pursuance of such agreement a true calculation was made and the same was returned as their verdict in accordance with the agreement. These circumstances appearing on motion for new trial, there would have been but one result. Again, suppose that, in connection with the issue as to the market value of the oil, the court had instructed the jury in accordance with the formula laid down in Article 10 of the contract between Producers and Reagan. There can be no question but that the instruction would be erroneous.

Many of the factors prescribed in Article 10 of the contract might have evidentiary value in determining the market value of the oil in question at the relevant times. All the determining factors included in the determination of market value are not included in that contract.

From the issuance of these leases to the present, the fair market value of one-eighth of the oil produced determines the extent of the rights of the State in this respect. In this case the evidence fails to show what was the market value of the oil produced. The State has not sued to recover the market value of the oil produced, but the average posted price in the Mid-Continent Field as established by the posting of five specified companies. There has been paid a royalty of one-eighth of the average posted price correctly computed by Reagan in accordance with its construction of Clause 10 of the purchase contract. In addition thereto, the State has been paid a sum exceeding $500,000 as royalty. The evidence fails to show whether such payments fell short of, equaled, or exceeded, one-eighth of the market value of the oil produced. In regard to the payment exacted from Producers by the judgment of one-eighth of the net profits of Reagan on the resale contract, we have said this is royalty — that is, part of the purchase money. This is thought to be correct under Section 11 of Article 7 of the Constitution, Vernon's Ann.St., despite the fact that these payments seem, by the judgment, to have been awarded to the Available Fund of the University.

Our holding is that the action of the trial court under the pleadings and evidence was correct. It is not within our power to reverse a correct judgment to the end that another trial be had on different pleadings or evidence.

The State's theory throughout was that the judgment sued upon was an agreed judgment. From this it is not to be taken that in every case where on the draft of the judgment for entry appears the signature of counsel indicating approval of the proposed form of evidencing the judgment pronounced, that such counsel agrees to the judgment. In most cases all the signature means is that the draft proposed truly evidences the judgment rendered by the court, and not that the judgment is agreed. According to the common and approved practice, the entering of his approval by an attorney on the draft of a judgment containing his exception thereto would not be considered a contradiction. While the judgment here under consideration does not purport in the body thereof to have been rendered by agreement, and no express stipulation appears in the record that the judgment be so entered, the fact that the approval of all the attorneys of record appears on the face of the judgment record and the signature of the trial judge appears subscribed thereto on the Minutes, in connection with other circumstances, warrants the holding, we think, the judgment was by agreement.

Even though the holding that this was an agreed judgment is incorrect, it is thought the action of the trial court was correct. The State sued to enforce this judgment. The essence of a consequential judgment consists of the award or denial of sought remedy. It does not create substantive rights. This holds true, it is thought, as to even a purely declaratory judgment. Same is not creative. It does not create what it declares, but simply declares as to what existed before its rendition. If the judgment of October 12, 1928 was not an agreed judgment, any provisions purporting to change existing rights or to create new contractual rights are void.

This is the first point of error in the State's brief: "The error of the court in directing a verdict against the plaintiff and in not enforcing the judgment of October 12, 1928, which requires that the value of the State's royalty shall be determined by applying the price clause of the Purchasing Contract of November 24, 1924."

The second proposition thereunder is as follows: "The judgment of the court of October 12, 1928, in Cause No. 42,752, is not subject to the collateral attack sought to be made upon it by Humble and Reagan in this suit."

If the judgment be an agreed judgment, and the agreements evidenced thereby are unenforcible on account of the lack of authority of the Attorney General to bind the State, it is immaterial whether the attack be direct or collateral. If not an agreed judgment, the contractual provisions thereof are void and subject to collateral attack. It is perhaps immaterial to determine whether the attack made be direct or collateral. Even though it may be immaterial to the disposition of this case, it is thought that the attack made by Humble and Reagan is direct. The action is to enforce the judgment. All the vital parties thereto are parties here. It is sought to use this judgment as a sword, not as a shield. Under these circumstances, it is thought Reagan and Humble would have a right to make a direct attack. Walker v. Chatterton, Tex.Com.App.,222 S.W. 1100.

However, the matter is regarded as immaterial, and it is not held that the pleadings of Humble and Reagan were sufficient to constitute a direct attack. Further, the determination by interpretation of the scope and effect of a judgment is neither a direct nor a collateral attack thereon.

Here there is ground for the inference at least that the State received as much as she would have received had the controversy not been settled as it was. It may be there has been received as royalty an amount equaling that provided in the leases. In any event, the contrary does not appear from the evidence. The provision of the lease according to the statute, is now and has always been the measure of the royalty.

It is, therefore, ordered that the prior opinion be withdrawn, the rehearing of appellees in all things granted, and there being no error in the judgment of the trial court, same is in all things affirmed.