Removal of suits.-The act is not a "revenue law" within the meaning of Revised Statutes, section 643, which provides for the removal of suits brought in State courts "against any officer appointed under or acting by authority of any revenue law of the United States." On account of any act done under color of his office, a suit against the officer in charge of reclamation work to determine water rights in a stream is not removable by him thereunder. Nor is there any reason of public policy why such suit should be transferred to the Federal courts, as by the terms of the act the rights of the Government as an appropriator of water are governed by the laws of the State and are no greater than those of any other officer. (Twin Falls Canal Co. (Ltd.) v. Foote et al., 192 Fed. 583. Followed in City of Stanfield v. Umatilla River Water Users' Association et al., 192 Fed. 596.)

The project manager of a Federal irrigation project is the Government representative through whom the project is managed and carried on. He is engaged in the administration of a Federal law and has the right to bring into the Federal courts controversies to which he is made a party touching the validity or propriety of acts done by him in his representative capacity. When sued in a State court for damages on account of his alleged negligence in operating a project canal, he can remove the cause to a Federal court. (Whiffin v. Cole, memorandum decision, January 24, 1919, by Dietrich, United States district judge, Boise.)

Reclamation fund a trust fund.-The official reports show that, in 1902, there were in 16 States and Territories 535,486,731 acres of public land still held by the Government and subject to entry. A large part of this land was arid, and it was estimated that 35,000,000 acres could be profitably reclaimed by the construction of irrigation works. The cost, however, was so stupendous as to make it impossible for the development to be undertaken by private enterprise, or, if so, only at the added expense of interest and profit private persons would naturally charge. With a view, therefore, of making these arid lands available for agricultural purposes by an expenditure of public money, it was proposed that the procedes arising from the sale of all public lands in these 16 States and Territories should constitute a trust fund to be set aside for use in the construction of irrigation works, the cost of each project to be assessed against the land irrigated, and as fast as the money was paid by the owners back into the trust it was again to be used for the construction of other works. Thus the fund, without diminution except for small and negligible sums not properly chargeable to any particular project, would be continually invested and reinvested in the reclamation of arid land. (Swigart v. Baker, ante.)

See 14 Comp. Dec. 361, holding that the reclamation fund is a special fund, but not a trust fund.

66

Reclamation fund, of what constituted.-In view of the decision of the Supreme Court in United States v. Gratiot (14 Pet. 526, 10 L. Ed. 573, 13 U. S. 644), there can be do doubt that a lease is a disposal" of lands, as contemplated by section 1 of the reclamation act. The said section appropriates "all moneys received from the sale and disposal of public lands" in certain States except the 5 per cent of the proceeds of the sales of public lands in the above States set aside by law for educational and other purposes.' The full 100 per cent of the proceeds of the lease is appropriated, without deduction, to the reclamation fund by section 1 of the reclamation act. (Departmental decision, in re Owl Creek Coal Co., August 31, 1912.)

66

Moneys derived by the Reclamation Service (Bureau of Reclamation) from the lease of lands of the Uintah Indian Reservation should be covered into the Treasury to the credit of the reclamation fund, the liability of the Reclamation Service (Bureau of Reclamation) to compensate the Indians for the use of such lands not affecting the disposition of the proceeds derived from their use. (14 Comp. Dec. 285.)

The act of June 27, 1906 (34 Stat. 518), granting to the State of California 5 per cent of the net proceeds of cash sales of public lands in that State, including sales made prior to its passage and since the admission of the State, does not authorize the withdrawal of any part of the proceeds of public lands of said State carried to the reclamation fund prior to its passage. Five per cent of the net proceeds of cash sales of public lands in the State of California made after the passage of the act of June 27, 1906, is set aside by that act for educational purposes and excepted from moneys appropriated after its passage to the reclamation fund. (13 Comp. Dec. 289.)

It is not the intent of Congress by the acts of April 16 and June 27, 1906 (34 Stat. 116 and 520), to take away the right of the State of Idaho to the 5 per cent of the net proceeds of sale from public lands for the support of the common schools of the State lying within said State. If, however, the whole proceeds of said sales have been covered into the "reclamation fund" and the 5 per cent paid to the State out of the permanent indefinite appropriation therefor, the reclamation fund should be charged therewith. (20 Comp. Dec. 365.)

Moneys paid to the Treasurer of the United States in accordance with the provisions of section 4 of the act of August 20, 1912 (37 Stat. 321), authorizing the Attorney General to compromise suits involving lands purchased from the Oregon & California Railroad Co. are not "moneys received from the sale and disposal of public lands" within the purview of the reclamation act, but are "miscellaneous receipts." Effecting a compromise of a suit does not constitute a sale of public lands. Where a conveyance by a grantee of public lands is decreed void or is set aside if found voidable only, a forfeiture to the United States does not ipso facto result, and lands once granted by the United States can not thereafter be classed as public lands so long as any unextinguished right or title therein under or through said grant exists. (20 Comp. Dec. 397.)

The amount of purchase money refunded in reclamation States, in cases of erroneous sales of public land, under the provisions of sections 2362 and 3689, Revised Statutes, should be deducted from the total sums received in said States in computing the amounts to be transferred to the reclamation fund by appropriation warrants. (20 Comp. Dec. 415.)

This section does not authorize the transfer to the reclamation fund of moneys paid to a receiver by an intended purchaser of public lands unless the sale is confirmed and the lands are actually conveyed by the United States to the purchaser. (Idem.)

Moneys erroneously paid to a receiver of public moneys by a would-be pur. chaser of public lands and which are required by law to be refunded are not moneys received from the sale or disposal of public lands within the meaning of this act. (20 Comp. Dec. 597.)

Lands withdrawn for a reservoir site or similar reclamation purposes which are essential to the project, and lands acquired by purchase or condemnation for the exclusive use of the project, may be developed for their mineral resources only by temporary leases for periods not inconsistent with the needs of the project, and the proceeds therefrom must be placed in the reclamation fund to the credit of that project. (J. D. Mell et al., 50 L. D. 309.)

In order to expedite the availability of moneys from the sale of public lands, which moneys are actually in the Treasury and belong to the reclamation fund, so that they may be promptly utilized in expenditures by the Reclamation Service (Bureau of Reclamation), the division of bookkeeping and warrants of the office of the Auditor for the Department of the Interior may issue appropriation warrants transferring the proceeds in question to the reclamation fund upon quarterly certifications made by the Commissioner of the General Land Office, without awaiting the examination and audit of the vouchers covering the sales of the lands. (Comp. Dec., September 25, 1918.)

Moneys received from royalties and rentals under the act of October 2, 1917 (40 Stat. 297), which authorizes exploration for and disposition of potassium on public lands, should not first be deposited to the credit of sales of public lands, but should be credited direct to the reclamation fund. (Comp. Dec., December 5, 1918.)

Where necessary canals, laterals, and structures properly a part of a Federal irrgation system can not be constructed by the United States because funds are not available, a landowner may advance the needed moneys to the United States, and he may be later reimbursed, without interest, by credits upon his water charges as they become due. (Departmental decision, October 8,

1919, Milk River.)

See act of March 3, 1905 (33 Stat. 1032), and notes thereunder.

See act of October 2, 1917 (40 Stat. 297), placing receipts from potassium deposits in the reclamation fund.

Reclamation fund, application of.--The authority of the Secretary respecting the use of the reclamation fund is to make preliminary investigations to determine the feasibility of any contemplated irrigation project, to construct reservoirs and irrigation works, and operate and maintain those thus constructed,

and to acquire "for the United States by purchase or condemnation under judicial process" rights or property necessary for these purposes. (California Development Co., 33 L. D. 391.)

The drilling of wells for the purpose of determining whether underground water exists that may be made available in connection with a project comes within the power conferred by this section "to make examinations and surveys for the development of waters." (Op. Asst. Atty. Gen., 34

* * *

L. D. 533.)

Where, under the act of March 3, 1905 (33 Stat. 1069), lands of the Uintah Indian Reservation have been set apart and reserved as a reservoir site for general agricultural development and subsequently have been withdrawn, under section 3 of the reclamation act, from all forms of sale and entry, the United States is liable upon an implied contract to the Indians of said reservation for the occupancy and use of said lands to the extent that the use made of them is inconsistent with the rights of the Indians to use and occupy them or leave them open to sale and entry for their benefit, and the reclamation fund is applicable to the payment thereof. (14 Comp. Dec. 49.)

Since, in the absence of specific statutory authority, one department or branch of the Government is not authorized to enter into contracts with another such department or branch and to make payments thereunder, the General Land Office may not lawfully pay rent to the Reclamation Service (Bureau of Reclamation) for the use of a part of a warehouse when the reclamation fund is not depleted by such use. However, any cost of maintenance of the warehouse may be apportioned properly between the Reclamation Service (Bureau of Reclamation) and the General Land Office. Comp. Dec. 684.)

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The Reclamation Service (Bureau of Reclamation) is a field service under the control of the Secretary of the Interior, with its headquarters located at Washington, as distinguished from a part of the Interior Department proper, or bureau or office thereof, or other Government establishment at Washington; and therefore printing and binding required for such service is not "printing and binding " for an executive department, or bureau or office thereof, or other Government establishment at Washington within the meaning of section 2 of the sundry civil act of June 30, 1906 (34 Stat. 697), and is not required by the provisions of such section to be submitted to Congress in the annual estimates of the expenses of printing and binding (13 Comp. Dec. 733.)

The appropriation for public printing and binding is exclusively applicable to the expense of printing done at the Government Printing Office for an executive department; and therefore the appropriation for the Reclamation Service (Bureau of Reclamation) can not be used to pay for printing done at said office for the Department of the Interior. (11 Comp. Dec. 398.)

The Reclamation Service (Bureau of Reclamation) is not a part of an executive department within the meaning of the public printing act of January 12, 1895, and therefore payment for printing for the sole and exclusive use of the Reclamation Service (Bureau of Reclamation) should be made from the appropriation for said service, and not from the appropriation for printing for the Interior Department. (11 Comp. Dec. 595.)

The Secretary of the Interior having by authority of section 10 of the act of June 17, 1902, authorized the furnishing of medical attendance and medicines to employees of the Reclamation Service (Bureau of Reclamation) engaged upon work in connection with the Salt River irrigation project in Arizona, payment for medical attendance furnished such employees by a physician other than the one regularly employed for that purpose is authorized if it was at the time impracticable to secure the services of the regular physician. Comp. Dec. 803.)

(11

While ordinarily the Government is not liable for the burial expenses of its deceased employees, payment of the reasonable expenses of a decent burial may be authorized when it is necessary for sanitary reasons to remove the remains of a deceased employee from the grounds on which other employees are located. (11 Comp. Dec. 789.)

There is no authority of law for the payment of an amount in excess of $100 to cover the burial expenses of a field employee of the Reclamation Service (Bureau of Reclamation) killed by accident due to his employment. (4 Comp. Gen. 365, citing 1 Comp. Gen. 372.)

Reimbursement is not authorized for the value of a horse hired by the Reclamation Service (Bureau of Reclamation) and killed as the result of a fall

while being driven by its owner in the regular discharge of the work for which hired, the Government not being an insurer of the animal in such a case. (22 Comp. Dec. 383. See 16 Comp. Dec. 68.)

In the absence of express statutory provision therefor, the Reclamation Service (Bureau of Reclamation) is without authority to engage by contract of employment persons "with horse," "with team," or "with automobile," and

pay them compensation higher than that paid to persons without a horse, team, or automobile; but in view of the long-existing practice of doing so, objection to such procedure will not be interposed prior to June 30, 1926; after that date compensation may be paid only on the basis of the personal services rendered. (4 Comp. Gen. 1031; C. L. 1423, June 22, 1925.) But see act of May 10, 1926 (44 Stat. 453, 495), which makes appropriation for hire, with or without personal services, of work animals and animal-drawn and motor-propelled vehicles and equipment. See also appropriation act of January 12, 1927, Pub.

No. 541.

Section 5 of the act of July 16, 1914 (38 Stat. 508), relative to the purchase of motor-propelled or horse-drawn passenger-carrying vehicles is not limited to annual appropriations or to service in the District of Columbia, but applies to all Government funds made available for expenditure and to all branches of the Government service. That the United States Reclamation Service (Bureau of Reclamation) is a "branch of the Government service" there can be no room for reasonable doubt. Therefore, in the absence of specific authority of law therefor, no appropriation for said service is available for the purchase of any motor-propelled or horse-drawn passenger-carrying vehicle. (21 Comp. Dec. 14. But see act March 3, 1915, 38 Stat. 859. See also 4 Comp. Gen. 836, and 5 idem. 183.)

The reclamation fund may not be used as a reward for the apprehension of an employee of the Reclamation Service (Bureau of Reclamation) who may have been guilty of a breach of trust. (Departmental decision, January 28, 1910.)

If, in the judgment of the Secretary of the Interior, the offering of a reward for the return of horses belonging to the Reclamation Service (Bureau of Reclamation), which have strayed away would be an appropriate means to be used to secure their return, he is authorized to make the offer under section 10 of the reclamation act of June 17, 1902 (32 Stat. 388). (Comp. Dec., May 19, 1911.)

If it is deemed necessary to operate a telephone line in connection with the work authorized under the reclamation act, the Secretary of the Interior unquestionably has the authority to take such action as may be necessary and proper to protect such telephone line from damage or interference while in the possession of the United States. The means to be employed for such protection is left largely in the discretion of the Secretary. If, in his judgment, the offering of a reward for information leading to the conviction of any person willfully damaging or interfering with such telephone line would be a necessary and proper means to protect it from such damage or interference, payment from the reclamation fund of the reward so offered would be authorized when satisfactory proof of the earning thereof has been presented. (Comp. Dec., March 7, 1913.)

In view of the fact that the Reclamation Service (Bureau of Reclamation) must proceed in many cases in conformity with State laws, and it is necessary to institute cases in State courts or intervene in those brought by others, the expense of such proceedings in State courts in payment of lawful costs, including expenses of necessary printing and costs of appeal bonds, should be charged to the reclamation fund. It is understood, of course, that such proceedings on behalf of the United States will be instituted by or with the authority of the Attorney General, and that it is not intended by this decision to include compensation to attorneys or counsel. (Comp. Dec., June 30, 1914, and December 6, 1916.)

Costs in an action against an employee of the Reclamation Service (Bureau of Reclamation), which is defended for said employee by the United States, are payable out of the reclamation fund. (Comp. Dec., in re Marley v. Cone (Salt River), December 6, 1916.)

Reimbursement can not be made from the reclamation fund to a bank to cover exchange on a check given in payment of water charges. (Comp. Dec., in re C. W. Kellogg, March 9, 1917.)

In a decision rendered July 18, 1924 (A-2537) in connection with work under article 6 of the treaty with Great Britain regarding St. Mary and Milk Rivers,

the Comptroller General ruled that the appropriation of $100,000 for investigations of secondary projects from the reclamation fund made by act of January 24, 1923 (42 Stat. 1207), could not be used on work under said treaty, as the proposed work was not in connection with "examination and survey for the construction and maintenance of irrigation works, etc.," and not within the purpose for which the reclamation fund was established.

Where a reservoir is being constructed under the reclamation act upon a site remote from civilization and 30 miles from the nearest school, and it is difficult, without school facilities, to secure a proper supply of efficient labor for the needs of such construction, particularly bosses and skilled workmen with families, and the erection of a school building will aid in securing more men, induce them to remain longer in the service, and be in the interest of the Government, then the cost of such a building may be paid from the reclamation fund. (Comp. Dec., September 24, 1917, in re Rimrock, Yakima.)

If a grantor of land to the United States for a nominal consideration pays the stamp taxes provided for deeds of conveyance under the "Revenue act of 1918," approved February 24, 1919 (40 Stat. 1057), he may properly be reimbursed therefor from the reclamation fund as a part of the consideration for the land conveyed. (Comp. Dec., April 22, 1919.)

The purchase of ice to cool the available supply of drinking water, when necessary from the Government's standpoint, as in the case of water furnished construction gangs employed on projects of the Reclamation Service (Bureau of Reclamation), is authorized. When such facts are shown on the vouchers or otherwise in the accounts, payment for such purchases is authorized from the same funds as the other expenses of such construction. Gen. 201; C. L. 1460.) See notes under section 10 of this act.

(5 Comp.

Reclamation Service (Bureau of Reclamation).—The Reclamation Service (Bureau of Reclamation) is not a department or establishment of the Government in Washington, but a field service, and the act of June 17, 1910 (36 Stat. 531), relative to purchase of supplies for executive departments and other establishments in Washington is not applicable to the field force of the Reclamation Service (Bureau of Reclamation). (20 Comp. Dec. 42, 13 idem, 733; 11 idem, 595.)

The Bureau of Reclamation (Reclamation Service) is a field service under the control of the Secretary of the Interior, with its headquarters located in Washington, D. C., and the accounts thereof are required by section 22 of the act of July 31, 1894 (28 Stat. 211), as extended by section 304 of the act of June 10, 1921 (42 Stat. 24), to be administratively examined at the seat of Government. (3 Comp. Gen. 931. See also 13 Comp. Dec. 733, 734.)

The provision in the sundry civil act of June 30, 1906 (34 Stat. 727), authorizing the Secretary of the Interior to permit scientific and other employees of the Geological Survey employed in the field to make assignments of their pay and to reimburse such employees for expenses incurred by them in the discharge of their duties in the field and paid by them from their personal funds, does not extend to employees of the Reclamation Service (Bureau of Reclamation). (13 Comp. Dec. 783. See act May 27, 1908, 35 Stat. 350.)

See 19 Comp. Dec. 181, in reference to chief of field party taking affidavit to expense account.

Miscellaneous references.-Weil on Water Rights in the Western States (3d ed., vol. 2, ch. 60-63, pp. 1275-1325.)

Kinney on Irrigation and Water Rights, (2d ed., vol. 3, ch. 65, pp. 2232–2339.) Long on Irrigation (2d ed., sec. 308.)

Sec. 2. [Authority to locate and construct irrigation works-Report to Congress.]-That the Secretary of the Interior is hereby authorized and directed to make examinations and surveys for, and to locate and construct, as herein provided, irrigation works for the storage, diversion, and development of waters, including artesian wells, and to report to Congress at the beginning of each regular session as to the results of such examinations and surveys, giving estimates of cost of all contemplated works, the quantity and location of the lands which can be irrigated therefrom, and all facts relative to the practicability of each irrigation project; also the cost of works in process of construction as well as of those which have been completed. (32