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THE RECLAMATION ACT

An act appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands. (Act June 17, 1902, ch. 1093, 32 Stat. 388)

[Sec. 1. Reclamation fund established from public land receiptsException-Support of agricultural colleges-Deficiency.]-That all moneys received from the sale and disposal of public lands in Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming, beginning with the fiscal year ending June thirtieth, nineteen hundred and one, including the surplus of fees and commissions in excess of allowances to registers and receivers, and excepting the five per centum of the proceeds of the sales of public lands in the above States set aside by law for educational and other purposes, shall be, and the same are hereby, reserved, set aside, and appropriated as a special fund in the Treasury to be known as the " reclamation fund," to be used in the examination and survey for and the construction and maintenance of irrigation works for the storage, diversion, and development of waters for the reclamation of arid and semiarid lands in the said States and Territories, and for the payment of all other expenditures provided for in this act: Provided, That in case the receipts from the sale and disposal of public lands other than those realized from the sale and disposal of lands referred to in this section are insufficient to meet the requirements for the support of agricultural colleges in the several States and Territories, under the act of August thirtieth, eighteen hundred and ninety, entitled "An act to apply a portion of the proceeds of the public lands to the more complete endowment and support of the colleges for the benefit of agriculture and the mechanic arts, established under the provisions of an act of Congress approved July second, eighteen hundred and sixty-two," the deficiency, if any, in the sum necessary for the support of the said colleges shall be provided for from any moneys in the Treasury not otherwise appropriated. (32 Stat. 388.)

NOTES

Amendments.-See act of February 25, 1905 (33 Stat. 814), extending the reclamation act to a portion of the State of Texas.

See act of June 12, 1906 (34 Stat. 259), extending the reclamation act to the entire State of Texas.

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

See section 35, act of February 25, 1920 (41 Stat. 450), reserving to the reclamation fund certain amounts of money derived from bonuses, royalties, etc., under that act, commonly known as the "oil-leasing" act.

See section 17, act of June 10, 1920 (41 Stat. 1072), placing proceeds of charges arising from licenses for occupancy and use of public lands, etc., in the reclamation fund.

Constitutionality of reclamation act.-The reclamation act is within the power of Congress as to lands within the States as well as Territories, under Constitution, article 4, section 3, giving it power to dispose of and make all needful

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rules and regulations respecting the territory or other property belonging to the United States," and is not in violation of the Constitution on the ground that it authorizes the expenditure of public money without an appropriation, since it is in itself an appropriation of the proceeds of land sold, nor as delegating legislative authority to the Secretary of the Interior. (United States v. Hanson, 167 Fed. 881. 33 C. C. A. 371.)

The United States has constitutional authority to organize and maintain an irrigation project within a State where it owns arid lands whereby it will associate with itself other owners of like lands for the purpose of reclaiming and improving them, and for that purpose it exercises the right of eminent domain against other land owners to obtain land necessary to carry the proposed project in effect. (Burley v. United States et al., 179 Fed. 1, 102 C. C. A. 429, 33 L. R. A. (N. S.), 807, affirming 172 Fed. 615. See also Magruder v. Belle Fourche Valley Water Users Association, 219 Fed. 72, 133 C. C. A. 524.) Irrigation plan contemplated by the act.-The act contemplates the irrigation of private lands as well as lands belonging to the Government, and the fact that a scheme contemplates the irrigation of private as well as a large tract of Government land does not render the project illegal, so as to prevent the condemnation of land necessary to carry it out. (Burley v. United States, ante.)

In a proceeding by the United States to condemn land for reservoir purposes, whether a more feasible plan of irrigation than the one adopted might be devised, or some other site selected for the reservoir, is immaterial, the determination of the proper government authorities being conclusive. (United States v. Burley, 172 Fed. 615.)

Whatever may be its maximum power under the Constitution, it is thought that by the reclamation act (32 Stat. 388), Congress has chosen to confer authority upon the Secretary of the Interior only to undertake projects the primary or predominant purpose of which is to reclaim public lands. (Griffiths v. Cole (1919), 264 Fed. 374.)

Contract to supply water for irrigation district.-Under the reclamation act the Secretary of the Interior has power to contract with an irrigation district to supply, or partially supply, the district with water. (Pioneer Irrigation District v. Stone, 23 Idaho 344, 130 Pac. 382; Hillcrest Irrigation District v. Brose, 24 Idaho 376, 133 Pac. 663; Nampa and Meridian Irrigation District v. Petrie, 153 Pac. 425. See also Nampa & Meridian Irrigation District v. Petrie (1924), 223 Pac. 531; 37 Ida. 45.) See act February 21, 1911 (36 Stat. 925.) Assessment for operation and maintenance of project.-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.)

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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.

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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.)

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 purchaser 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. (22 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. (11 Comp. Dec. 803.)

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

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