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SURPLUS WATERS AND COOPERATION IN IRRIGATION WORK 129

tract under section 2 of the Warren Act for the advance by the United States of $200,000 to permit the contractor with the United States, the North Side Canal Co., to obtain carriage capacity in the main canal of the gravity extension unit, or Gooding division of the Minidoka project, the construction of which canal for the joint benefit of the United States and the company was under contemplation. The appropriations available for carrying out this contract did not expressly authorize expenditures for the benefit of the company, but were made generally for the investigation and construction of the gravity extension unit of the Minidoka project. The company was to be required to repay the amount so expended in 20 annual installments, with interest at 6 per cent per annum.

Decree as to proceedings of irrigation district not appealed from conclusive.Where a petition or petitions have been presented to the district court for the confirmation of any part of the proceedings that have been taken and a decree has been made and entered confirming the same and no appeal has been taken therefrom, it is final and conclusive as to the proceedings taken prior thereto, unless such decree is assailed by a direct attack or unless it appears from the record that the proceedings taken and confirmed were taken in such manner that the district court was without jurisdiction to confirm the same. (American Falls Reservoir Dist. v. Thrall (1924), 228 Pac. 236.)

Bonds general lien on land until discharged.—Under the Idaho Irrigation District Law the bonds of the district are a general lien upon the lands of the district, and all of said lands are and must remain liable for the district assessments levied for the payment of such obligations until the same are fully paid and discharged. (Idem.)

Condition of irrigation district bonds as to collection irrevocable.—The bonds or other obligations of an irrigation district may contain a provision that the collection of the principal and interest of such bonds or other obligations shall be made by the county officers of the county in which the lands taxed are situate, and when such condition is indorsed upon the obligation it is irrevocable until such indebtedness is paid. (Idem.)

Irrigation district municipal corporation respecting contracts.-An irrigation district is a public, or quasi public, corporation, not organized for governmental purposes, but to conduct the business for the private benefit of the owners of the land within its limits, and as respects its contracts made in the manner prescribed by law it is a municipal corporation. (Idem.)

Court's jurisdiction not defeated because of failure to give notice.--In a proceeding to confirm the organization of an irrigation district the jurisdiction of the court to confirm is not defeated because of a failure to give notice of the hearing before the board of county commissioners, since the proceeding is in rem and the objection was available and could have been raised at the confirmation proceedings, of which notice was given. (Idem.)

Organization of irrigation district can not be attacked in proceeding to confirm assessment of benefits.-When proceedings to organize an irrigation district are on their face regular, show a substantial compliance with the statute prescribing the method of organizing such district, and have been confirmed by a judgment of the district court, from which no appeal has been taken, the question of the validity of the district's organization is res judicata and therefore can not be attacked in a subsequent proceeding to confirm the assessment of benefits. (Idem.)

Areas in excess of 160 acres.-See note under section 1 of act of May 15, 1922 (42 Stat. 541), entitled "Areas in excess of 160 acres."

Excess acreage.-The Supreme Court of Oregon, reversing the decision of the circuit court, held that a land company which by reason of holding land under another irrigation project was prohibited from using water obtained by an irrigation district under a contract with the United States, and which had not received water from the district, had a good defense to a suit by the district to foreclose delinquent tax certificates for assessments. (Enterprise Irrigation Dist. v. Enterprise Land & Investment Co. (Oreg. 1931), 300 Pac. 507.)

But see Klamath County v. Colonial Realty Co. (Oreg. 1932), 7 Pac. (d) 976, 139 Oreg. 311, in which the same court, under a slightly different state of facts, reached a different conclusion, and in which said court now appears to be in harmony in this matter with the courts of the other arid States and with its own earlier decisions.

130 SURPLUS WATERS AND COOPERATION IN IRRIGATION WORK

Sec. 3. [Moneys received covered into reclamation fund. ]—That the moneys received in pursuance of such contracts shall be covered into the reclamation fund and be available for use under the terms of the reclamation act and the acts amendatory thereof or supplementary thereto. (36 Stat. 926.)

Textual note.-Section 525, United States Code, codifies the substance of this section.

NOTES

Assessments.—Yuma project.—Moneys received from the Imperial Irrigation District for the privilege of connecting with and using the Laguna Dam and the main canal of the Yuma reclamation project for the irrigation of lands in the Imperial Valley can not be applied in reduction of the assessments against the lands of the Yuma project, but must be covered into the reclamation fund as directed by section 3, act of February 21, 1911 (36 Stat. 926). (32 Op. Atty. Gen. 41.)

But see act June 28, 1926 (44 Stat. 776).
See also subsection J, section 4, act December 5, 1924 (43 Stat. 703).

Penalties on account of delinquent water charges-Under contracts with irrigation districts under act of May 15, 1922 (42 Stat. 541), and also under the Warren Act of February 21, 1911, penalties on account of all classes of charges shall be credited to the reclamation fund generally and not to the project in connection with which they arise. (C. L. 1186, January 3, 1923. This circular amends C. L. 960 (standard clauses for contracts with irrigation districts), by adding a sentence to clause (H) thereof.)

Profits from sale of Jackson Lake water, Minidoka project—Certain profits arose on the Minidoka project from the sale of Jackson Lake water under the Warren Act. The Secretary of the Interior, after full consideration and a hearing accorded the parties, allocated the profits among the different divisions of the project. The Minidoka Irrigation District, representing one division of the project, being dissatisfied with the allocation, brought suit in the courts of the District of Columbia to secure a mandatory injunction compelling the Secretary to make an allocation in accordance with the contentions of the plaintiff. The trial court denied the Government's motion to dismiss, and the Government appealed to the Court of Appeals of the district, where the Secretary's allocation was upheld, and the lower court ordered to dismiss the bill. It was held that the Secretary was acting in a quasi-judicial capacity, that his decision was not arbitrary or capricious, and that the plaintiff was seeking a judgment in mandamus directing the Secretary to act contrary to the facts and the law of the case as found by him, and that such an appeal will not be entertained by the courts. (Wilbur v. Minidoka Irrigation District, decided by the Court of Appeals of the District of Columbia May 4, 1931, 50 Fed. (20) 495, 60 App. D. C., 205; certiorari denied October 1931, 284 U. S. 634, 52 S. Ct. 18; 76 L. Ed. 540.)

After the foregoing decision was rendered the Minidoka Irrigation District petitioned the Department for a review, and in decision of February 23, 1933, M-27043, the petition was denied by the Secretary of the Interior on the ground that the matter had been settled by the courts and previous departmental decision of September 27, 1926

LEASE OF SURPLUS ELECTRIC POWER

An act to amend an act entitled "An act providing for the withdrawal from public entry

of lands needed for town-site purposes in connection with irrigation projects under the reclamation act of June 17, 1902, and for other purposes," approved April 16, 1906. (Act February 24, 1911, ch. 155, 36 Stat. 930)

[Sec. 1. Development and lease of surplus power-Proceeds—Impairment of projects prohibited—Longer lease permitted on Rio Grande project.]- That section five of an act entitled “An act providing for the withdrawal from public entry of lands needed for town-site purposes in connection with irrigation projects under the reclamation act of June seventeenth, nineteen hundred and two, and for other purposes," approved April sixteenth, nineteen hundred and six, be amended so as to read as follows:

"Sec. 5. That whenever a development of power is necessary for the irrigation of lands, under any project undertaken under the said reclamation act, or an opportunity is afforded for the development of power under any such project, the Secretary of the Interior is authorized to lease for a period not exceeding ten years, giving preference to municipal purposes, any surplus power or power privilege, and the money derived from such leases shall be covered into the reclamation fund and be placed to the credit of the project from which such power is derived : Provided, That no lease shall be made of such surplus power or power privileges as will impair the efficiency of the irrigation project: Provided further, That the Secretary of the Interior is authorized, in his discretion, to make such a lease in connection with Rio Grande project in Texas and New Mexico for a longer period not exceeding fifty years, with the approval of the water users' association or associations under any such project, organized in conformity with the rules and regulations prescribed by the Secretary of the Interior in pursuance of section six of the reclamation act approved June seventeenth, nineteen hundred and two." (36 Stat. 930.)

Textual note.—The substance of the above act is codified as section 522, title 43, United States Code, the first paragraph and the words "SEC. 5. That" of the second paragraph being omitted ; "said reclamation act" reading "said reclamation law; and "section six of the reclamation act approved June seventeenth, nineteen hundred and two" reading "section 498 of this chapter."

NOTES

Cross reference. See notes under section 5, act April 16, 1906 (34 Stat. 116). RELIEF OF CERTAIN RECLAMATION HOMESTEAD ENTRYMEN

WHEN WATER IS NOT AVAILABLE

An act for the relief of homestead entrymen under the reclamation projects in the United

States. (Act April 30, 1912, ch. 100, 37 Stat. 105)

[Sec. 1. Homesteaders under reclamation act allowed time to reestablish residence after water is available—Period of absence not credited.] – That no qualified entryman who prior to June twenty-fifth, nineteen hundred and ten, made bona fide entry upon lands proposed to be irrigated under the provisions of the act of June seventeenth, nineteen hundred and two, the national reclamation law, and who established residence in good faith upon the lands entered by him, shall be subject to contest for failure to maintain residence or make improvements upon his land prior to the time when water is available for the irrigation of the lands embraced in his entry, but all such entrymen shall, within ninety days after the issuance of the public notice required by section four of the reclamation act, fixing the date when water will be available for irrigation, file in the local land office a water-right application for the irrigable lands embraced in his entry, in conformity with the public notice and approved farmunit plat for the township in which his entry lies, and shall also file an affidavit that he has reestablished his residence on the land with the intention of maintaining the same for a period sufficient to enable him to make final proof: Provided, That no such entryman shall be entitled to have counted as part of the required period of residence any period of time during which he was not actually upon the said land prior to the date of the notice aforesaid, and no application for the entry of said lands shall be received until after the expiration of the ninety days after the issuance of notice within which the entryman is hereby required to reestablish his residence and. apply for water right. (37 Stat. 105.)

Textual note.--This act is codified as section 445, title 43, United States Code, the word "That" at the beginning being omitted ; "act of June seventeenth, nineteen hundred and two, the national" being omitted; "section four of the reclamation act" reading "section 419 of this chapter."

NOTES

Regulations. See General Land Office instructions of July 25, 1912, in reference to this act. (41 L. D. 115.)

132

EIGHT-HOUR LAW

An Act limiting the hours of daily service of laborers and mechanics employed upon work done for the United States, or for any Territory, or for the District of Columbia, and. for other purposes. (Act of June 19, 1912, 37 Stat. 137)

[Eight-hour limitation; Five dollar penalty for each day employee is worked over eight hours; contractor has right of appeal within six months to Department and after decision by Department has six months to file appeal in Court of Claims.]—That every contract hereafter made to which the United States, any Territory, or the District of Columbia is a party, and every such contract made for or on behalf of the United States, or any Territory, or said District, which may require or involve the employment of laborers or mechanics, shall contain a provision that no laborer or mechanic doing any part of the work contemplated by the contract, in the employ of the contractor or any subcontractor contracting for any part of said work contemplated, shall be required or permitted to work more than eight hours in any one calendar day upon such work; and every such contract shall stipulate a penalty for each violation of such provision in such contract of five dollars for each laborer or mechanic for every calendar day in which he shall be required or permitted to labor more than eight hours upon said work; and any officer or person designated as inspector of the work to be performed under any such contract, or to aid in enforcing the fulfillment thereof, shall, upon observation or investigation, forthwith report to the proper officer of the United States, or of any Territory, or of the District of Columbia, all violations of the provisions of this Act directed to be made in every such contract, together with the name of each laborer or mechanic who has been required or permitted to labor in violation of such stipulation and the day of such violation, and the amount of the penalties imposed according to the stipulation in any such contract shall be directed to be withheld for the use and benefit of the United States, the District of Columbia, or the Territory contracting by the officer or person whose duty it shall be to approve the payment of the moneys due under such contract, whether the violation of the provisions of such contract is by the contractor or any subcontractor. Any contractor or subcontractor aggrieved by the withholding of any penalty as hereinbefore provided shall have the right within six months thereafter to appeal to the head of the department making the contract on behalf of the United States or the Territory, and in the case of a contract made by the District of Columbia to the Commissioners thereof, who shall have power to review the action imposing the penalty, and in all such appeals from such final order whereby a contractor or subcontractor may be aggrieved by the imposition of the penalty hereinbefore provided such contractor or subcontractor may within six months after decision by such head of a department

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