mental opinion. L. D. 223.)

December 31, 1923, in re Shoshone irrigation project, 50

The Secretary of the Interior has no general statutory authority to suspend, even temporarily, public notices issued by him pursuant to section 4 of the act of June 17, 1902, of lands irrigable under reclamation projects, nor does he possess supervisory power to do so in the absence of a specific statute authorizing it. (Idem.)

See act of February 13, 1911 (36 Stat. 902), authorizing the Secretary of the Interior to withdraw public notices issued under section 4 of the reclamation act.

Operation and maintenance charges.-Irrigable lands may be assessed with the annual cost of operation and maintenance under the authority conferred on the Secretary of the Interior. (Swigart v. Baker, 229 U. S. 187, 57 L. Ed. 1143, 33 Sup. Ct. 645, reversing 199 Fed. 865, 118 C. C. A. 313, and affirming 196 Fed. 569.)

The history of the reclamation act of 1902, shows that it was the intent of Congress that the cost of each irrigation project should be assessed against the property benefited and that the assessments as fast as collected should be paid back into the fund for use in subsequent projects without diminution. This intent can not be carried out without charging the expense of maintenance during the Government-held period as well as the cost of construction. (Idem.)

Subsequent legislative construction of a prior act may properly be examined as an aid to its interpretation; and so held that statutes passed since the reclamation act of 1902 indicate that Congress has construed the provisions of that act as authorizing the Secretary of the Interior to assess cost of maintenance as well as of construction of irrigation projects upon the land benefited. (Idem.)

Where the executive officer charged with its enforcement annually reports to Congress the same construction of a statute, it is significant if Congress never has taken any adverse action in regard to such construction. (Idem.)

Quaere whether Congress may not by legislation construe a prior statute so that as to all matters subsequently arising the action is legislative in character. (Idem.)

The repeated and practical construction of the reclamation act of 1902 by both Congress and the Secretary of the Interior, in charging cost of maintenance as well as construction, accords with the provisions of the act taken in its entirety and is followed by this court. (Idem.)

The Secretary of the Interior has authority to levy and collect assessments on lands irrigated from any irrigation works to defray the cost of maintaining such works until the time.when under the act the maintenance and operation passes to the landowners. (Baker v. Swigart, 196 Fed. 569, reversed 199 Fed. 865, 118 C. C. A. 313, affirmed 229 U. S. 187, 57 L. Ed. 1143, 33 Sup. Ct. 645.)

The purpose of this act is to encourage the settlement and cultivation of public lands, and it contemplates that such lands may be entered on as soon as the irrigation system is so far completed that water may be furnished thereon for irrigation purposes; and when the act empowers the Secretary of the Interior to fix and determine the charges against the land, it must have intended that he should cover the cost of maintenance and operation while in control of the United States as well as construction. (United States v. Cantrall, 176 Fed. 949.)

Water may be furnished without operation and maintenance charge for the irrigation of the grounds about country schoolhouses upon reclamation projects. (Departmental decisions, January 11, 1912, and October 24, 1919.) See notes 5 and 6 under section 5 of this act.

7. Reclamation contracts to be filed in returns office. The reclamation act requires that all moneys received from any source in an irrigation project shall be paid into the reclamation fund. All charges are determined with a view of returning to the reclamation fund the cost of the construction of each project so that the moneys can be used for other irrigation works. It is certainly within the policy of the statute that all the contracts pertaining to irrigation projects should be recorded in the Interior Department in order that the condition of the projects and of the reclamation fund may be readily ascertained. Contracts authorized by the Secretary of the Interior, which were entered into between an acting supervising engineer in the United States Reclamation Service (Bureau of Reclamation) and certain users of water furnished for irrigation purposes by the Reclamation Service (Bureau of Reclamation) are within the purview of section 3744, Revised Statutes, and copies thereof should be filed

in the returns office of the Department of the Interior by the officer making and signing the same. (28 Op. Atty. Gen. 66.)

66

Must contain "Member of Congress" clause.-Agreements for the purchase of lands, for water rentals, for conveyance of water rights, and similar instruments, contractual in form, relating to the adjustment of vested water rights, executed in behalf of the United States by some officer of the Reclamation Service (Bureau of Reclamation) for the purposes within the purview of the reclamation act (32 Stat. 388), are agreements" or "contracts" within the meaning of sections 3739-3742, Revised Statutes, which prohibit any Member of Congress from being a party to, or interested in, any contract with, or on behalf of, the United States which is in its nature executory and continuous as to future performance, and require the insertion therein of the condition prescribed by section 3941. (26 Op. Atty. Gen. 537.)

8. Assessments of water users' associations.-Where a water users' association organized for the purpose of guaranteeing payment of the construction cost of a Federal irrigation project, having executed a contract with the United States for that purpose, makes assessments against its members to raise a fund with which to conduct litigation to avoid paying project costs, the United States will not assist the association in collecting such assessments by requiring prospective water users to show as a condition precedent to acceptance of waterright applications that such assessments have been paid. (Departmental decision, May 4, 1918, Boise.)

See Umatilla W. U. A. v. Irvin, 108 Pac. 1016; U. S. v. Bunting, 206 Fed. 340. 9. Miscellaneous references.-General Land Office circulars regarding applications for water rights. (April 4, 1906, 34 L. D. 544; March 22, 1909, 37 L. D. 521; and April 20, 1909, 37 L. D. 581.)

General Land Office instructions of January 18, 1908, to registers and receivers in reference to this section. (36 L. D. 256.)

Secretary's regulations in reference to water-right charges. (May 27, 1908, and July 8, 1908, 37 L. D. 11-16, supplemented by regulations of April 8, 1911, 40 L. D. 15.)

Secretary's instructions as to forms for water-right applications, etc. (September 9, 1910, 39 L. D. 197; January 30, 1911, 39 L. D. 532; and June 16, 1911, 40 L. D. 139.)

Secretary's order of February 26, 1913, 42 L. D. 203, and public notice of June 23, 1913, 42 L. D. 201, regarding collection of operation and maintenance charges as affected by case of Swigart v. Baker, ante.

Sections 100-115, inclusive, general reclamation circular, approved May 18, 1916, 45 L. D. 385.

Sec. 5. [Requirements of entrymen-Limit of 160 acres-ResidencePayments Disposal of receipts-Commissions.]-That the entryman upon lands to be irrigated by such works shall, in addition to compliance with the homestead laws, reclaim at least one-half of the total irrigable area of his entry for agricultural purposes, and before receiving patent for the lands covered by his entry shall pay to the Government the charges apportioned against such tract, as provided in section 4. No right to the use of water for land in private ownership shall be sold for a tract exceeding 160 acres to any one landowner, and no such sale shall be made to any landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments therefor are made. The annual installments shall be paid to the receiver of the local land office of the district in which the land is situated, and a failure to make any two payments when due shall render the entry subject to cancellation, with the forfeiture of all rights under this act, as well as of any moneys already paid thereon. All moneys received from the above sources shall be paid into the reclamation fund. Registers and receivers shall be allowed the usual commissions on all moneys paid for lands entered under this act. (32 Stat. 389.)

NOTES

1. Amendment.-See act of August 9, 1912 (37 Stat. 265), amending this section in reference to payments, etc.

See act of August 10, 1917 (40 Stat. 273), suspending residence requirements during World War.

See notes under section 4 of this act.

2. Homestead entry requirements.-Persons making homestead entry of lands within the irrigable area of any project commenced or contemplated under the act, will be required to comply fully with the requirements of the homestead law as to residence, cultivation, and improvement; and failure to supply water from such works in time for use upon the land entered will not justify a failure to comply with the law and to make proof thereof within the time required by the statute. (Secretary's instructions (Minidoka) May 17, 1904, 32 L. D. 633. See act of June 25, 1910, 36 Stat. 864.)

There is no authority for granting a leave of absence to a homesteader who made entry of lands believed to be susceptible of irrigation under a contemplated project, on the ground that he can raise no crops on the land in its present arid state and that it is impossible to procure water for the irrigation thereof prior to completion of the project. (Jacob Fist, 33 L. D. 257. See act of June 25, 1910, 36 Stat. 864.)

The provisions of the three-year homestead act of June 6, 1912 (37 Stat. 123), respecting cultivation, have no application to entries made under the reclamation act; but the reclamation laws require, as a prerequisite to the issuance of final certificate and patent, that the entryman shall have reclaimed, for agricultural purposes, at least one-half of the total irrigable area of his entry and paid all reclamation charges at that time due. (Wilbur Mills, 42 L. D. 534.)

The provisions of the three-year homestead law respecting cultivation do not apply to entries made subject to the reclamation act. (Rosa Voita, 43 L. D. 436.)

Upon the death of an entryman who has made satisfactory homestead final proof on a reclamation farm unit, the homestead becomes a part of his estate and as such subject to distribution, and is not an unperfected entry subject to the provisions of section 2291, Revised Statutes. The condition imposed by the reclamation act as to reclamation, payment of charges, and filing of waterright application are conditions not of homestead law or proof but arising out of reclamation and imposed as a further requirement. (Heirs of Wm. L. Naftzger, 46 L. D. 61. See also Edward Pierson, 47 L. D. 625.)

3. Limit of acreage. The provision of this section, restricting the sale of a right to use water for land in private ownership to not more than 160 acres, will not prevent the recognition of a vested water right for a larger area, and protection of the same by allowing the continued flowage of the water covered by the right through the works constructed by the Government. Atty. Gen., 34 L. D. 351; Anna M. Wright, 40 L. D. 116.)

(Op. Asst.

A qualified water-right applicant may, after having disposed of a previously acquired water right, make another application, and as to the latter, may be considered in the position of an original applicant. A landowner may be the purchaser of the right to the use of water for separate tracts at the same time, provided he can properly qualify and the tracts involved do not exceed 160 acres in the aggregate. (Departmental decision, in re Wm. B. Bridgman (Sunnyside), November 20, 1909.)

The fact that a widow who under section 2291, Revised Statutes, succeeds to the right of her husband in an unperfected homestead entry within a reclamation project has previously secured water from the project for reclamation of land held by her in private ownership in no wise affects her right to acquire water under the project for completion of such entry under the reclamation act. (Anna M. Wright, 40 L. D. 116.)

Congress is without power to control or regulate the sale or acreage of lands in private ownership within reclamation projects; but, so long as the projects are under Government control, may determine the acreage for which water may be supplied through such projects to any one landowner. (Amaziah Johnson, 42 L. D. 542.)

A person who holds a farm unit shall not be permitted before full payment has been made on the appurtenant water right, to acquire other lands with appurtenant water rights unless the water-right charges on the latter have been fully paid. A person may hold private lands with appurtenant water

rights up to the limit of single ownership fixed for the project in one or more parcels before full payment of the water-right charge, but may not acquire other lands with appurtenant water rights unless the water-right charges thereon have been paid in full. The limit of area of the farm units and of single private-land holdings to which water rights are appurtenant, and as to which water-right charges have not been paid in full, shall in no case exceed 160 acres. (Departmental decision, July 22, 1914, 43 L. D. 339.) Departmental instructions of July 1, 1920, amend paragraph 41 of general reclamation circular of May 18, 1916 (45 L. D. 385). See C. L. 911, July 6, 1920, or 47 L. D. 417. See act of August 9, 1912 (37 Stat. 265), and notes thereunder.) See amendment of section 23, regulations of May 18, 1916 (45 L. D. 390) as printed at 48 L. D. 113.

4. Residence and occupancy.-Where a tract of land under a reclamation project is owned by two or more persons jointly, unless each is a "resident" or an occupant on the land, no right to use water to irrigate the same can be acquired under this section. (Departmental decision, January 12, 1910.)

To entitle an applicant to the use of water for lands held in private ownership within the irrigable area of an irrigation project under this act to the benefits of this act, he must hold the title in good faith, and his occupancy must be bona fide and in his own individual right. (Secretary's instructions, May 21, 1904, 32 L. D. 647.)

The residence requirements provided for in this section apply to all persons acquiring by assignment water-right contracts with the United States, unless prior to such assignment the final water-right certificate contemplated by section 1 of the act of August 9, 1912 (37 Stat. 265), has been issued, in which event the land may be freely alienated, subject to the lien of the United States. (H. G. Colton, 43 L. D. 518.)

The residence requirement of this section in reference to private lands is fully complied with if at the time the water-right application is made the applicant is a bona fide resident upon the land or within the neighborhood. After approval of the application further residence is not required of such applicant, and final proof may therefore be made under the act of August 9, 1912 (37 Stat. 265), without the necessity of proving residence at the time proof is offered. (Departmental decision, April 19, 1916.)

The term "in the neighborhood" held to mean within 50 miles. mental decision, January 20, 1909.)

(Depart

Paragraph 105 of the general reclamation circular approved May 18, 1916 (45 L. D. 385), provides that in case of the sale of all or any part of the irrigable area of a tract of land in private ownership covered by a waterright application which is not recorded in the county records, the vendor will be required to have his transferee make new water-right application for the land transferred. Held, that in making the new application it is immaterial whether or not the transferee be "an actual bona fide resident on such land or occupant thereof residing in the neighborhood." (Reclamation decision, July 25, 1917, in re J. W. Merritt, Truckee-Carson.)

Order withdrawing land from entry under section 3, reclamation act, did not relieve entryman from the duty of reclaiming land under section 5, reclamation act, and complying with homestead law as to residence and cultivation under Revised Statutes United States, sections 2289-2291. 2297, prior to amendment of 1912, where the land officials made a public announcement that the withdrawals of lands were not permanent, but were for the purpose of enabling preliminary investigations to be made as to feasibility of irrigation project (Bowen v. Hickey (1921), (Cal. App.) 200 Pac. 46; certiorari denied (1921), 42 Sup. Ct. 168, 257 U. S. 656, 66 L. Ed. 420.)

An entryman under this act does not acquire or maintain a residence by occasional visits or by going upon the land for the purpose of merely formal compliance with the law, substantial residence and good faith being necessary. Determination of officials of the Land Department that entryman under this act failed to establish a residence upon the land held justified by the evidence. (Idem.)

5. Payment of water charges. The provision in section 5 of the reclamation act that failure to make payment of any two annual installments when due shall render the entry subject to cancellation, with forfeiture of all rights under the act, is not mandatory, but it rests in the sound discretion of the Secretary of the Interior whether the entryman in such case may thereafter be permitted to cure his default by payment of the water charges, where he has continued to comply with the provisions of the homestead law; and in event an entry has

been canceled for such failure, the Secretary may, in the absence of adverse claim, authorize reinstatement thereof with a view to permitting the entryman to cure his default. (Marquis D. Linsea, 41 L. D. 86.)

Inasmuch as the acts of June 17, 1902, and August 13, 1914, did not peremptorily declare in mandatory language that forfeitures must be declared, or that they will necessarily result by operation of law as soon as defaults in payments by water users on reclamation projects have occurred, it rests within the sound discretion of the Secretary of the Interior to determine whether an entryman may thereafter be permitted to cure the default by payment of the charges. (Departmental opinion, December 31, 1923, in re Shoshone irrigation project, 50 L. D. 223.)

One holding a mortgage against only a part of a tract of land in private ownership upon a Federal reclamation project for which entire tract a waterright application has been made, may pay up from time to time the charges on that portion of the tract covered by the mortgage in the event the landowner fails to pay. (Departmental decision, July 13, 1917.)

Fiscal agents upon United States reclamation projects are authorized to accept from water users money tendered in payment of an accrued installment of either construction, operation, and maintenance, or rental charges, for any year, even though installments for a previous year remain unpaid. (Reclamation decision, August 6, 1917; C. L. No. 680.)

In cases where the title to lands under water-right application upon a Federal reclamation project is in dispute, and the land is in possession of one other than the record owner, the Reclamation Service (Bureau of Reclamation) may deliver water to the party in possession, upon payment in advance of the operation and maintenance charges. (Reclamation decision, August 24, 1917, in re Wood v. Eggleston, Truckee-Carson.)

Where entries and water-right applications have been held for cancellation for failure to pay the building charges, pending final action, water may be furnished for the land upon proffer of the portion of the installments for operation and maintenance. (Departmental decision, February 9, 1909.)

No power exists in the Secretary of the Interior to formally grant specific extension of time for payment of overdue water-right charges. (Departmental decision, April 22, 1909.)

The provisions of section 5 of the reclamation act of June 17, 1902 (32 Stat. 388), and of sections 3 and 6 of the reclamation extension act of August 13, 1914 (38 Stat. 686), regarding one year of grace for the payment of overdue water charges, refer only to the drastic remedies of cancellation and forfeiture and not to the right to bring suit in a court for collection of a water charge past due and unpaid. (Reclamation decision, December 4, 1917, U. S. v. Edison E. Kilgore, Shoshone. See Secretary's regulations of February 27, 1909, regarding delinquent payments, 37 L. D. 468.)

See notes 5 and 6 under section 4 of this act.

6. Parties to suit enjoining collection of water charges.-A corporation with which as the representative of its shareholders, who are parties accepted by the United States as holders of water rights in a project under the reclamation act, the United States makes a contract for the benefit of such shareholders relative to the supply of water due and the dues to be paid by the shareholders and which covenants in the contract to collect dues for the United States and guarantees the payment thereof, is the proper party plaintiff in a suit to enjoin officers of the United States from collecting unlawful charges from the shareholders, turning the water from their lands and canceling their water rights and homestead rights because they fail to pay such charges. (Magruder et al. v. Belle Fourche Valley Water Users' Association, 219 Fed. 72; 133 C. C. A. 524.)

7. Release of nonirrigable lands.-The director is authorized to assent to the release from stock subscription of any and all lands in any and all projects heretofore or hereafter shown by official survey or by the original or amended farm unit plats to be nonirrigable; also, to assent to the reduction of stock subscription for any such lands to the acreage so shown as irrigable. (Departmental decisions, March 11, 1912, and September 16, 1912.)

8. Taxation of land within reclamation project.-A patent to lands within a reclamation project issued to a homestead entryman under act of August 9, 1912 (37 Stat. 265), on proof of compliance with the provisions of law as to residence, reclamation, and irrigation conveys a legal title, the Government reserving only a prior lien on the land and appurtenant water rights as