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feiture shall be suspended pending such suit or action. (38 Stat. 687.)

Textual note. The above section is codified in sections 478, 480, and 481, of title 43, United States Code. Section 478 also contains the substance of subsection H, section 4, act of December 5, 1924 (43 Stat. 703), as it affects section 3 of the act of August 13, 1914.

NOTES

Amendments.--Sections 1, 2, 3, 5, and 6 of this act amended by section 1 of act May 15, 1922. (42 Stat. 541.) (See Departmental opinion of September 29, 1923, 50 L. D. 142.)

Subsection H, section 4, act of December 5, 1924 (43 Stat. 703), reduces the penalty of 1 per centum per month provided for herein to one-half of 1 per centum per month. (See Departmental instructions of March 19, 1925, 51 L. D. 218.)

When construction charges become due.-Construction charges against lands subject to section 1 of this act can not become due until after waterright application has been made; as to lands subject to section 2 of this act, construction charges against same become due on December 1 of the year in which public notice affecting the land is issued, and if not paid they accumulate against the land. (Departmental decision October 18, 1919; C. L. 852. C. L. 862 outlines the accounting procedure under C. L. 852.)

Suit for water charges. The provisions of sections 3 and 6 of the extension act in reference to one year of grace for the payment of overdue water charges, refer only to drastic remedies of cancellation and forfeiture, and not to the right to bring suit in a court for collection of a water charge past due and unpaid. (Reclamation decision, December 4, 1917, U. S. v. Edison E. Kilgore, Shoshone.)

Penalties. Under section 501, act March 8, 1918 (40 Stat. 440), penalties arising under this section will not run during the period of the military service. (Departmental instructions of May 16, 1919, 47 L. D. 167; C. L. 820; also C. L. 849.)

Right to declare forfeiture.-Inasmuch as the acts of June 17, 1902, and August 13, 1914, did not peremptorily declare in mandatory language that forfeitures must be declared, or that they will necessarily result by operation of law as soon as defaults in payments by water users on reclamation projects have occurred, it rests within the sound discretion of the Secretary of the Interior to determine whether an entryman may thereafter be permitted to cure the default by payment of the charges. (Departmental opinion of December 31, 1923, 50 L. D. 224.)

The Secretary of the Interior, in his discretion, may follow the procedure outlined in sections 3 and 6 of the extension act of August 13, 1914, with respect to construction and operation and maintenance charges more than one year in arrears. rather than apply to the courts under the forfeiture provisions of the act of August 9, 1912 (37 Stat. 265); i. e., the Secretary may cancel the water right in such cases and declare a forfeiture of the reclamation charges theretofore paid, at the same time allowing title to the lands to remain in the patentee or his successor. (Departmental decision January 16, 1928, Tieton division, Yakima project. C. L. 1689.)

Circular letters.-No. 497, June 2, 1915, in reference to payments by nonresident landowners and effect thereof.

No. 516. September 2, 1915, regarding accumulation of construction charges. No. 1027, July 9, 1921, regarding procedure relative to delinquent water accounts.

No. 1186, January 3, 1923, penalties on account of delinquent water charges. No. 1205, March 26, 1923, modification of penalty.

Sec. 4. [Restriction on increasing construction charges-Time for paying increase-Charges subject to certain conditions.]-That no increase in the construction charges shall hereafter be made, after the same have been fixed by public notice, except by agreement between the Secretary of the Interior and a majority of the water-right applicants and entrymen to be affected by such increase, whereupon all

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water-right applicants and entrymen in the area proposed to be affected by the increased charge shall become subject thereto. Such increased charge shall be added to the construction charge and payment thereof distributed over the remaining unpaid installments of construction charges: Provided, That the Secretary of the Interior, in his discretion, may agree that such increased construction charge shall be paid in additional annual installments, each of which shall be at least equal to the amount of the largest installment as fixed for the project by the public notice theretofore issued. And such additional installments of the increased construction charge, as so agreed upon, shall become due and payable on December first of each year subsequent to the year when the final installment of the construction charge under such public notice is due and payable: Provided further, That all such increased construction charges shall be subject to the same conditions, penalties, and suit or action as provided in section three of this act. (38 Stat. 687.)

Textual note.-Codified as section 469, title 43, United States Code, with the following changes: The introductory word "That" is omitted; "hereafter" in the second line is changed to "after August 13, 1914"; and "section 3 of this act," in the last line, is changed to read "sections 478, 480, and 481 of this chapter."

NOTES

Amendment.-Act March 3, 1915 (38 Stat. 861), provides that no work shall be undertaken or expenditure made which will increase an announced construction charge until an agreement to repay the cost shall have been made in accordance with the provisions of this section.

Change of date of payment of construction charges.-The act of August 13, 1914, provided for the payment of irrigation construction charges upon a specified date, the only authority for change of which is contained in the act of May 15, 1922 (42 Stat. 541), and where the latter act is invoked to change the date of payment under a prior contract, the procedure prescribed therein must be followed in order to give validity to the amended contract. (Departmental opinion September 29, 1923, 50 L. D. 143.)

Cost of drainage system on completed project chargeable to operation and maintenance rather than to construction.-When an irrigation system has been completed under the reclamation act, subsequent construction of a drainage system to remove injurious consequences of its normal operation on the lands included is chargeable to maintenance and operation rather than to construction and section 4 of the reclamation extension act, preventing increase of construction charges when once fixed except by agreement between the Secretary of the Interior and a majority of water-right applicants and entrymen affected, does not apply. (Nampa & Meridian Irrigation District v. Bond (Ida. 1925), 268 U. S. 50; 45 S. Ct. 383; 69 L. Ed. 843; 283 Fed. 569 (D. C. 1922), 288 idem, 541 (C. C. A. 1923), affirmed.)

This is consistent with attributing to construction the cost of drainage provided for in the original plan because the need for it was existent or foreseen. (Idem.) (See notes under this case appended to section 5 of this act.)

Increase of construction charge over amount originally estimated.-A suit was brought by the United States to foreclose a lien for construction charges on land within the Orland project. Jessie Donohoe, owner of the land, purchased a water right therefor in 1917, after the construction charges had been estimated and announced at $44 an acre. In 1918 the Secretary of the Interior, with the consent of a majority of the water-right applicants, including Donohoe, increased the construction charges $11 more an acre. In 1926 the charges were again increased, by an amount of $68 an acre, and a majority of the water users, not including the defendant, the successor to Jessie Donohoe, agreed to the increased cost. The issue was whether the latter increase was a lien upon the land. The contract provided for increases of construction charges in accordance with the act of August 13, 1914, and that the lien shall extend to the increased charges. The court decided in favor of the plaintiff. (U. S. v. Charles L. Donohoe Co. (District Court, N. D., Calif., 1929), 33 Fed. (2d) 362.)

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Circular letters.-See (e) No. 394, November 9, 1914, regulations of reclama

tion commission.

No. 400, November 21, 1914, No. 447, February 20, 1915, No. 506, June 24, 1915. No. 556, April 17, 1916, and No. 611, November 14, 1916, in reference to supplementary construction.

No. 659, May 3, 1917, amending C. L. No. 611.

Sec. 5. [Operation and maintenance charges-Basis therefor-Minimum charge Secretary may transfer care and operation of project-Reduction or increase of charges.]-That in addition to the construction charge, every water-right applicant, entryman, or landowner under or upon a reclamation project shall also pay, whenever water service is available for the irrigation of his land, an operation and maintenance charge based upon the total cost of operation and maintenance of the project, or each separate unit thereof, and such charge shall be made for each acre-foot of water delivered; but each acre of irrigable land, whether irrigated or not, shall be charged with a minimum operation and maintenance charge based upon the charge for delivery of not less than one acre-foot of water: Provided, That whenever any legally organized water users' association or irrigation district shall so request, the Secretary of the Interior is hereby authorized, in his discretion, to transfer to such water users' association or irrigation district the care, operation, and maintenance of all or any part of the project works, subject to such rules and regulations as he may prescribe. If the total amount of operation and maintenance charges and penalties collected for any one irrigation season on any project shall exceed the cost of operation and maintenance of the project during that irrigation season, the balance shall be applied to a reduction of the charge on the project for the next irrigation season, and any deficit incurred may likewise be added to the charge for the next irrigation season. (38 Stat. 687.)

Textual note.-The first clause of the above section (with the omission of the introductory word "That"), down through the colon, and the last sentence of the section are codified as section 492, title 43, United States Code. The proviso is codified as section 499, title 43, United States Code.

NOTES

Amendment.-Sections 1, 2, 3, 5, and 6 of this act amended by section 1 of act May 15, 1922 (42 Stat. 541). (See Departmental opinion of September 29, 1923, 50 L. D. 142.)

Operation and maintenance charges.-These charges follow the same rule as construction charges and do not accumulate against lands for which waterright application has not been made. The effect is that all operation and maintenance charges since December 1, 1914, under the extension act are to be considered as not accumulating. (C. L. No. 622, December 16, 1916.)

The word "year" used in connection with the operation and maintenance costs is the 12 months ending with December 31. (C. L. No. 555, April 17, 1916.) In Oregon Short Line R. R. Co. v. Minidoka Irrigation District (Idaho, 1929) the trial court held that there was no water available for the right of way of the Oregon Short Line R. R. Co. through lands of the Minidoka irrigation district, Minidoka project. The Minidoka irrigation district assessed the right of way of the Oregon Short Line R. R. Co. for operation and maintenance charges. The railway company paid the taxes under protest and brought suit to recover them. The State supreme court held that Idaho Compiled Statutes, section 4489, under which operation and maintenance charges for an irrigation district on a Federal reclamation project are leviable, makes the charges apportionable under section 5 of the act of Congress of August 13, 1914, which section in turn requires a landowner to pay operation and maintenance charges "whenever

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water service is available for the irrigation of his land." The trial court had found that there was no water available for the right of way of the Oregon Short Line R. R. Co. in this case, and it was accordingly held that the assessment was invalid. (Oreg. Short Line R. R. Co. v. Minidoka Irrigation Dist. (Idaho, 1929), 283 Pac. 614.)

See circular letters No. 378, October 17, 1914, No. 402, November 25, 1914, and No. 618, December 13, 1916, in reference to operation and maintenance charges. (C. L. 1186, January 3, 1923, penalties on account of delinquent operation and maintenance charges.)

When operation and maintenance charges become due.-Against lands subject to section 1 of this act, these charges can not become due until after waterright application has been made; against lands subject to section 2 of this act these charges may accrue before making of water-right application, and accumulate against the land. (Departmental decision, October 18, 1919; C. L. 852, supplemented by C. L. 862, December 19, 1919.) Operation and maintenance deficits prior to 1914 collectible.-On December 16, 19-0, the Solicitor for the Interior Department rendered an opinion that the operation and maintenance deficit arising on the Belle Fourche project, South Dakota, prior to the enactment of the extension act of August 13, 1914 (38 Stat. 686), was not extinguished by that act and is collectible. (Opinion printed in full in Reclamation Record of February, 1921, p. 75.)

Cost of drainage system on completed project chargeable to operation and maintenance.-Where lands of an Idaho irrigation district were included in a Federal reclamation project under a contract obliging the Government to furnish water and construct drainage works within the district, which was done and the cost assessed as a construction charge against all the project water users, the district agreeing that the project lands in the district should pay the same operation and maintenance charge per acre as announced by the Secretary of the Interior for similar lands of the project, held that the project lands within the district were liable with the other project lands to bear, as an operation and maintenance charge, the cost of providing drainage for project lands outside the district which were being ruined by seepage water from the operation of the irrigation system. (Nampa & Meridian Irrigation District v. Bond (Ida. 1925), 268 U. S. 50, 45 Sup. Ct. 383, 69 L. Ed. 843; 283 Fed. 569, 288 idem 541, affirmed.) See notes under this case appended to section 4 of this act. Release of subscribers to water users' association.-Where irrigation districts subscribed for stock in an association of water users on a reclamation project entitling them to water, the board of directors and the Secretary of the Interior held authorized to release the irrigation districts from their subscriptions and obligations to take water. (Payette-Boise Water Users' Association v. Cole (D. C. Idaho, 1919), 263 Fed. 734.)

Where an irrigation district subscribing to stock in an association of water users on a reclamation project was released from its obligations by the association's board of directors, and though the other subscribers learned thereof within a reasonable time, no action to set aside the release was brought for several years during which the district landowners ceased to exercise any rights as stockholders and were not recognized as such, and the district issued bonds by means of which it procured other water, and lands in the district were bought and sold and transfers thereof made, the members of the association were chargeable with laches preventing them from attacking the release in equity. (Idem.)

Contract with Reclamation Service (Bureau of Reclamation) valid.-A contract made under the reclamation act between the United States and an irrigation company on behalf of its stockholders for the furnishing of additional water to the lands of such stockholders from the Government reservoir, construed, and held valid, and to authorize the charges made against the company for maintenance and operation. (New York Canal Co. v. Bond (C. C. A, Ida., 1920), 265 Fed. 228.)

Miscellaneous circular letters.-Questions and answers, November 7, 1914, regarding the act in general.

No. 449, February 25, 1915, prohibiting partial payments on installments of water-right charges.

No. 497, June 2, 1915, in reference to payments by nonresident landowners and effect thereof.

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Preliminary regulations of October 1, 1915 (circular letter of that date), for transfer to water users' associations or irrigation districts of the care, operation, and maintenance of reclamation projects.

For later regulations see Reclamation Record of April, 1916, page 162.

The matter of taking over operation and maintenance by water users was covered prior to the enactment of section 5 of the extension act by section 6 of the original reclamation act. (See notes under section 6 of latter act, under heading "Transfer of project to water users.")

Sec. 6. [Date when charges become due fixed by the Secretary-Discount for prompt payment-Penalty for nonpayment-Cancellation for continued arrears-Actions for recovery.]-That all operation and maintenance charges shall become due and payable on the date fixed for each project by the Secretary of the Interior, and if such charge is paid on or before the date when due there shall be a discount of five per centum of such charge; but if such charge is unpaid on the first day of the third calendar month thereafter, a penalty of one per centum of the amount unpaid shall be added thereto, and thereafter an additional penalty of one per centum of the amount unpaid shall be added on the first day of each calendar month if such charge and penalties shall remain unpaid, and no water shall be delivered to the lands of any water-right applicant or entryman who shall be in arrears for more than one calendar year for the payment of any charge for operation and maintenance or any annual construction charge and penalties. If any water-right applicant or entryman shall be one year in arrears in the payment of any charge for operation and maintenance and penalties, or any part thereof, his water-right application, and if he be a homestead entryman his entry also, shall be subject to cancellation, and all payments made by him forfeited to the reclamation fund, but no homestead entry shall be subject to contest because of such arrears. In the discretion of the Secretary of the Interior suit or action may be brought for the amounts in default. and penalties in like manner as provided in section three of this act. (38 Stat. 688.)

Textual note.-Section 6 is codified in the following sections of title 43, United States Code: 493, 494, 495, 479, 496, and 497. Subsection N of section 4, act of December 5, 1924 (43 Stat. 704), is a part of section 493, title 43, United States Code; and subsection H of section 4, act of December 5, 1924, is a part of section 494, title 43, United States Code.

NOTES

Amendments.-Sections 1, 2, 3, 5, and 6 of this act amended by section 1 of act May 15, 1922 (42 Stat. 541). (See departmental opinion of September 29, 1923, 50 L. D. 142.)

Subsection H, section 4, act of December 5, 1924 (43 Stat. 703), reduces the penalty provided for herein from 1 per cent per month to one-half of 1 per cent per month, as to all installments which may thereafter become due. (51 L. D. 218.) See notes under subsection H.

Acts of January 12, 1927 (44 Stat. 958); March 7, 1928 (45 Stat. 228); March 4, 1929 (45 Stat. 1590); May 14, 1930 (46 Stat. 306); and February 14, 1931 (46 Stat. 1143), define the period of allowable delinquency as 12 months, by a proviso to that effect inserted in each of said appropriation acts, instead of one calendar year as provided above.

See the provision of the appropriation act dated May 10, 1926 (44 Stat. 479), under the heading [Extension of time for payment of unpaid operation and maintenance of water-rental charges.]

Temporary provisions authorizing the furnishing of water to landowners or entrymen in arrears more than one calendar year, notwithstanding the

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