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tion 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. (Szigart v. Baker (Wash. 1913), 229 U. S. 187, 57 L. Ed. 1143, 33 Sup. Ct. 645, reversing (1912) 199 Fed. 865, 118 C. C. A. 313, and affirming (1912) 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.)

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. (C. C. Ida. 1911), 192 Fed. 583. Followed in City of Stanfield v. Umatilla River Water Users' Association et al., 192 Fed. 596.)

The project manager (superintendent) of a Federal irrigation project is the Government representative through whoin 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 (1919), 264 Fed. 252.)

A suit to establish right to prior use of waters, wherein the Secretary of the Interior is defendant, held not removable to Federal court, as suit against officer of revenue, of United States court, or of either House of Congress. (North Side Canal Co. v. Troin Falls Canal Co. et al. (D. C. Ida. 1926), 12 Fed. (20), 311.)

Where a suit is against the United States, Federal court's jurisdiction is to be determined by that fact rather than by the fact that it arises under laws of the United States. (Idem.)

The word "land" in Judicial Code, section 24, giving Federal district courts jurisdiction of suits to partition land, where the United States is tenant in common or joint tenant, means realty, as distinguished from personalty, and includes waters on land and water claimed to be appropriated for use in irrigation. (Idem.)

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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 proceeds 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.

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 no 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 in the Vintah 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

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United States does not ipso facto result, and lands once granted by the United States cannot 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 the 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 irrigation 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.)

An employee of the Yakima project, Washington, died intestate, leaving neither creditors, heirs, nor relatives entitled under the laws of his last domicile to share in the distribution of his estate. In addition to compensation due the decedent by the Bureau of Reclamation, the proceeds of his effects were for disposition. It was decided that the money due from the bureau to the deceased employee could not be paid to the tax commissioner of the State to escheat to the State. To take care of such matters a special fund was established in the Treasury under the title "Effects of deceased employees, Interior Department," a settlement being issued by the General Accounting Office charging the reclamation fund with a balance due the estate after payment of the burial expenses, and crediting the new fund with a like amount. Any claims that might be subsequently submitted by parties in interest should be given proper administrative action and forwarded to the General Accounting Office for consideration and settlement. (7 Comp. Gen. 478, dated February 15, 1928.)

Damages collected not to be credited to reclamation fund.—Where a contractor defaults in deliveries of material for use on work in connection with the reclamation fund, any damages collected, representing the excess cost of openmarket purchase, should be credited as a miscellaneous receipt in the Treasury,

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and not to the reclamation fund. The cost of any proceedings to collect damages sustained because of the failure of a contractor to comply with the terms of his contract would not be chargeable to the reclamation fund. The reclamation act does not provide that damages sustained by the United States on the breach of a contract, if and when collected, shall be credited to the reclamation fund, and it is improper to credit said fund with damages collected and not charge it with the expense of collecting such damage. (8 Comp. Gen. 284.) This decision was affirmed, after reconsideration requested by the Secretary of the Interior, by the Comptroller General in Decision A-24542, of June 17, 1929. But see the act of June 6, 1930 (46 Stat. 522), which changes this procedure.

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 l'intah 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.)

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.)

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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 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), and subsequent appropriation acts, which make appropriations for hire, with or without personal services, of work animals and animaldrawn and motor-propelled vehicles and equipment.

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

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