and the expenses thus accrued shall be taxed up as costs against the defendant. Respectfully submitted, N. C. MILLER, Attorney General By I. B. MELVILLE, Assistant Attorney General. STATE BOARD OF HORTICULTURE. Secretary of State Board of Horticulture can be also a member, and if so, can draw per diem as member in addition to her pay as secretary. December 15, 1905. MRS. MARTHA A. SHUTE, Secretary State Board of Horticulture, State Capitol, Denver, Colorado. Dear Madam-I have your letter of November 29th, reading as follows: "If consistent, will you render your opinion to the writer, if the Secretary of the State Board of Horticulture is entitled to per diem, being a member of said board?” The compensation of members and the secretary of the board is fixed by section 2142-a, 3 Mills (Rev.): "The secretary shall receive a salary of one thousand dollars and mileage, at the rate of five cents per mile for every mile necessarily traveled in the proper discharge of official duties, and the members of the board shall receive three dollars per day for each day actually in the performance of their duties, and actual traveling expenses necessarily incurred in the discharge of their official duties; Provided, That said members of the board shall not receive pay for more than thirty days in any one year." The board may elect a secretary who is not a member, and if such is the course of action, one thousand dollars is paid to a secretary, and ninety dollars is paid to a member of the board. On the other hand, if a member of the board is made secretary, the two compensations may go to the one person, for there is nothing inconsistent with a person being a member of the board and secretary. Our law allows a person to hold two offices when the same are not conflicting. Now, if you draw pay as a member of the board when rendering service as such, I do not think it is objec tionable because your compensation as secretary covers all you do except when the board is in session. Therefore, my conclusion is that when you are inspecting your district, as do other members of the board their districts, you may draw $3.00 a day when performing duty as a member of the board, not to exceed thirty days in one year. Yours respectfully, N. C. MILLER, STATE CANAL NO. 3. Attorney General. Tools belonging to the Board of Control of State Canal No. 3 should not be included in the transfer required to be made by the State to the United States government under the Act of the General Assembly, approved March 16, 1903. September 7, 1905. HON. JESSE F. McDONALD, Governor of Colorado, State Capitol. Sir I have your communication requesting an opinion as to whether certain tools, worth about $200.00, belonging to the Board of Control of State Canal No. 3, are included in the transfer to be made by the State to the United States government, under the act of the General Assembly, approved March 16, 1903, and enclosing therewith certain correspondence relating to the same. * * re By section 1 of said act, the State of Colorado "* leases and relinquishes to the United States of America all of its right, title and interest in and to State Canal No. 3, and all rights and privileges acquired in connection therewith." However, it is further provided as follows: "The Board of Control of said State Canal No. 3 is hereby directed, upon the acceptance by the United States government, through such lawful means as said government shall determine, of the benefits of this act, and by its taking over the said canal, to release, relinquish and convey to the said United States government, or to such body or board as may be created by the congress of the United States to take over and complete said canal, all rights, title, claim and interest of the State of Colorado and of said Board of Control of State Canal No. 3, in and to the said canal and tunnel, and all rights, privileges and authority in connection therewith, and to do any and all things necessary and 1 proper to fully and completely turn over to the United States government, or to any body or board so created by it, the property, rights and privileges herein referred to, such release, relinquishment and conveyance to be made without cost to the United States government; all to the end that the United States government may have full and complete authority to construct, maintain, operate and dispose of said canal, and any and all water and rights in connection therewith." See Session Laws 1903, pages 292-293. It will be observed that said act requires the conveyance of the property mentioned therein by the Board of Control to the United States, which, I understand, has not yet been made. I am of the opinion that the tools referred to are not included within the terms of said act, nor was it contemplated by said enactment that said tools should be a part of the property to be transferred to the United States. I herewith respectfully return said correspondence. Enclosures. Respectfully yours, N. C. MILLER, By W. R. RAMSEY, STATE ENGINEER'S DEPARTMENT. SYLLABUS. 3 Mills (Rev.), 24471, requires that the certified copy of priorities and tabulated statement of decrees shall be kept and preserved in the State Engineer's office. The salary of the division engineer should be paid for time actually engaged in the discharge of his duties. The sum of $500 is the total amount of reimbursement allowed a division engineer for expenses necessarily incurred. Being in readiness and prepared to discharge the duties of the office entitles the division engineer to pay only for the period of time between the day the first water commissioner is called out and the day the last one is needed. April 28, 1905. HON. T. W. JAYCOX, State Engineer, Denver, Colorado. Dear Sir-I am in receipt of your favor of the 27th inst., asking for an opinion from this office in regard to the interpretation of the following sections of the statutes: First "Should the certified copies of all decrees of District Courts establishing priorities of water rights within that district (as referred to in 1 M. A. S., 2453) be sent to the office of the State Engineer? If so, does section 2447i, 3 Mills' (Rev.). require the Irrigation Division Engineer to also file these certified copies with the State Engineer, or does it allow him to retain them in his own office?" Section 2453, supra, required the Superintendent of Irriga tion, who, under the later law, has been succeeded by the Irrigation Division Engineer, to prepare a book, entitled, "The Register of Priorities of Appropriation of Water Rights for Water Division No. ...., State of Colorado," in which register it was his duty to enter and preserve the certified copies of the decrees of. District Courts in regard to priorities of water rights, fur nished him by the clerks of said courts, and to file such register in the office of the State Engineer. In addition, it was his duty to make from this register "a tabulated statement of all the ditches, canals and reservoirs in his division, whose priorities have been decreed, which statement shall contain the following information concerning each ditch, canal and reservoir, arranged in separate columns, etc." As there is no provision in ( this statute requiring him to file this "tabulated statement" or a copy thereof with the state engineer, it must be presumed that the register thus prepared should be kept in the office of the Superintendent of Irrigation. Section 2447i, supra, provides that: "The clerk of any court establishing judicial decrees fixing the priorities of appropriation of water for irrigation, or other beneficial purposes, in any of such divisions, shall furnish the Irrigation Division Engineer having jurisdiction, with certified copies thereof, as heretofore provided by law in the case of su perintendents of irrigation, whereupon such engineer shall make a tabulated statement of such decrees in a book prepared for that purpose, and shall forward a copy thereof to the State Engineer, and keep and preserve in his office the certified copy." It will be observed from the section last quoted that the only difference between the duties of the Irrigation Division Engineer and the duties of the Superintendent of Irrigation is the preparation and transmittal of a copy of the "tabulated statement" of such decrees to the state engineer, but that in all other particulars the duties of the Irigation Division Engineer are the same, including the sending of the certified copy received from the clerk of the district court to the State Engineer, to be kept and preserved in the office of the latter. Second "Is the monthly salary of the Irrigation Division Engineer, as provided by 3 Mills' (Rev.), section 2447e, to be paid for the entire twelve months of the year, regardless of the duties performed, or is it to be paid only for the time necessarily and actually employed in the discharge of his official duties?" Section 2447e, supra, provides that: "Each Irrigation Division Engineer shall receive the sum of one hundred and twenty-five dollars ($125) per month for the time acutally employed in the discharge of his duties, payable monthly upon vouchers approved by the State Engineer, drawn upon the Auditor of State, by whom a warrant shall be drawn upon the State Treasurer therefor." Section 2447g, 3 Mills' (Rev.), provides: "The duties of the Irrigation Division Engineer shall be as follows: He shall be governed by all acts heretofore enacted relative to superintendents of irrigation and shall have general control over the water commissioners of the several districts within his division." The time during which the Superintendent of Irrigation was employed was fixed by section 2451, 1 M. A. S., as follows: "Said Superintendent of Irrigation shall commence the discharge of his duties in his division as soon as the first water commissioner in any district within his division shall be called out, and shall continue to discharge his duties until the last water commissioner in any district of his division ceases to be needed. |