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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Lands withdrawn for a reservoir site or similar reclamation purposes which are essential to the project, and lands acquired by purchase or condemnation for the exclusive use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 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.)

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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proper means to protect it from such damage or interference, payment from the reclamation fund of the reward so offered would be authorized when satisfactory proof of the earning thereof has been presented. (Comp. Dec., March 7, 1913.)

In view of the fact that the Reclamation Service (Bureau of Reclamation) must proceed in many cases in conformity with State laws, and it is necessary to institute cases in State courts or intervene in those brought by others, the expense of such proceedings in State courts in payment of lawful costs, including expenses of necessary printing and costs of appeal bonds, should be charged to the reclamation fund. It is understood, of course, that such proceedings on behalf of the United States will be instituted by or with the authority of the Attorney General, and that it is not intended by this decision to include compensation to attorneys or counsel. (Comp. Dec., June 30, 1914, and December 6, 1916.)

Costs in an action against an employee of the Reclamation Service (Bureau of Reclamation), which is defended for said employee by the United States, are payable out of the reclamation fund. (Comp. Dec., in re Marley v. Cone (Salt River), December 6, 1916.)

Reimbursement can not be made from the reclamation fund to a bank to cover exchange on a check given in payment of water charges. (Comp. Dec., in re C. W. Kellogg, March 9, 1917.)

In a decision rendered July 18, 1924 (A-2537), in connection with work under article 6 of the treaty with Great Britain regarding St. Mary and Milk Rivers, the Comptroller General ruled that the appropriation of $100,000 for investigations of secondary projects from the reclamation fund made by act of January 24, 1923 (42 Stat. 1207), could not be used on work under said treaty, as the proposed work was not in connection with "examination and survey for the construction and maintenance of irrigation works, etc.," and not within the purpose for which the reclamation fund was established.

Where a reservoir is being constructed under the reclamation act upon a site remote from civilization and 30 miles from the nearest school, and it is difficult, without school facilities, to secure a proper supply of efficient labor for the needs of such construction, particularly bosses and skilled workmen with families, and the erection of a school building will aid in securing more men, induce them to remain longer in the service, and be in the interest of the Government, then the cost of such a building may be paid from the reclamation fund. (Comp. Dec., September 24, 1917, in re Rimrock, Yakima.)

If a grantor of land to the United States for a nominal consideration pays the stamp taxes provided for deeds of conveyance under the "Revenue act of 1918," approved February 24, 1919 (40 Stat. 1057), he may properly be reimbursed therefor from the reclamation fund as a part of the consideration for the land conveyed. (Comp. Dec., April 22, 1919.)

The purchase of ice to cool the available supply of drinking water, when necessary from the Government's standpoint, as in the case of water furnished Construction gangs employed on projects of the Reclamation Service (Bureau of Reclamation), is authorized. When such facts are shown on the vouchers or otherwise in the accounts, payment for such purchases is authorized from the same funds as the other expenses of such construction. (5 Comp. Gen. 201; C. L. 1460.)

Payment of the expenses of Federal employees while attending a State court can not be authorized from appropriated funds merely because the State law prohibits such payments to Government employees, if such be the case; nor may they be paid their salaries while so absent from duty unless they are entitled to annual leave and such absence is charged thereto. (Comp. Gen. Decision A-22498, April 27, 1928, citing 2 Comp. Gen. 801, in which it was held that fees and mileage may be paid from the appropriation "Fees of witnesses, United States courts," to persons possessing information and willing to make affidavit for the purpose of aiding prohibition enforcement officers, and who are subpoenæed to appear before a judge or a United States commissioner to make affidavits as a basis for issuing a search warrant.)

See notes under section 10 of this act.

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Reclamation Service (Bureau of Reclamation).-The Reclamation Service (Bureau of Reclamation) is not a department or establishment of the Government in Washington, but a field service, and the act of June 17, 1910 (36 Stat. 531), relative to purchase of supplies for executive departments and other establishments in Washington is not applicable to the field force of the Reclamation Service (Bureau of Reclamation). (20 Comp. Dec. 42, 13 idem, 733; 11 idem, 595.)

The Bureau of Reclamation (Reclamation Service) is a field service under the control of the Secretary of the Interior, with its headquarters located in Washington, D. C., and the accounts thereof are required by section 22 of the act of July 31, 1894 (28 Stat. 211), as extended by section 304 of the act of June 10, 1921 (42 Stat. 24), to be administratively examined at the seat of Government. (3 Comp. Gen. 931. See also 13 Comp. Dec. 733, 734.)

The provision in the sundry civil act of June 30, 1906 (34 Stat. 727), authorizing the Secretary of the Interior to permit scientific and other employees of the Geological Survey employed in the field to make assignments of their pay and to reimburse such employees for expenses incurred by them in the discharge of their duties in the field and paid by them from their personal funds, does not extend to employees of the Reclamation Service (Bureau of Reclamation). (13 Comp. Dec. 783. See act May 27, 1908, 35 Stat. 350.)

See 19 Comp. Dec. 181, in reference to chief of field party taking affidavit to expense account.

The

The construction of the Agency Valley Dam in a remote locality in Oregon caused a large increase in the District school attendance in that locality and the Bureau considered paying a proportionate share of the school cost. Comptroller General, however, ruled that there is no provision in the Reclamation Act or its amendments, in the annual appropriations, or in title II of the National Industrial Recovery Act, authorizing the use of public funds for the education of children of employees engaged on reclamation projects; that the cost of educating children of Federal employees is not now and never has been regarded generally as a responsibility of the Federal government, and in the absence of special statutory authority, Federal funds are not available for such payments. (Decision of Comp. Gen., A-62267, Aug. 12, 1935.)

Miscellaneous reference.-Weil on Water Rights in the Western States (3d ed., vol. 2, ch. 60-63, pp. 1275-1325.)

Kinney on Irrigation and Water Rights, (2d ed., vol. 3, ch. 65, pp. 2232-2339.) Long on Irrigation (2d ed., sec. 308.)

Sec. 2. [Authority to locate and construct irrigation works-Report to Congress.]-That the Secretary of the Interior is hereby authorized and directed to make examinations and surveys for, and to locate and construct, as herein provided, irrigation works for the storage, diversion, and development of waters, including artesian wells, and to report to Congress at the beginning of each regular session as to the results of such examinations and surveys, giving estimates of cost of all contemplated works, the quantity and location of the lands which can be irrigated there from, and all facts relative to the practicability of each irrigation project; also the cost of works in process of construction as well as of those which have been completed. (32 Stat. 388.)

Textual note. This section is codified as section 411, title 43, United States Code, the first words, down through "herein provided", reading as follows: "The Secretary of the Interior is authorized and directed to make examinations and surveys for, and to locate and construct, as provided in this chapter."

NOTES

Governmental function not exercised in construction of works. In the construction of works for the irrigation of arid public lands, the United States is not exercising a governmental function, nor even a strictly public function, but

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