as collected should be paid back into the fund for use in subsequent projects without diminution. This intent cannot be carried out without charging the expense of maintenance during the Government-held period as well as the cost of construction. Swigart v. Baker, 229 U.S. 187 (1913).

Subsequent legislative construction of a prior act may properly be examined as an aid to its interpretation. 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 the court. Swigart v. Baker, 229 U.S. 187 (1913).

The Federal reclamation law is contained in the Reclamation Act of June 17, 1902, which, together with acts amendatory and supplementary thereto, forms a complete legislative pattern in the field. Solicitor Harper Opinion, M-33902, at 2 (May 31, 1945), in re applicability of excess land provisions to Coachella Valley lands.

The irrigation systems on the Flathead Indian Reservation do not constitute a reclamation project as contemplated by the Reclamation Act of June 17, 1902, and the amendments thereto. Flathead Lands, 48 L.D. 475 (1921).

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

The Act contemplates the irrigation of private lands as well as lands belonging to the Government and the fact that a scheme contemplates the irrigation of private as well as a large tract of Government land does not render the project illegal, so as to prevent the condemnation of land necessary to carry it out. Burley v. United States, 179 Fed. 1, 102 C.C.A. 429 (Ida. 1910).

Whatever may be its maximum power under the Constitution, it is thought that by the Reclamation Act Congress has chosen to confer authority upon the Secretary of the Interior only to undertake projects the primary or predominant purpose of which is to reclaim public lands. Griffiths v. Cole, 264 Fed. 374 (D.C. Ida. 1919).

The Act of June 17, 1902, outlines a comprehensive reclamation scheme, and

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provides for the examination and survey of lands and for construction and maintenance of irrigation works for the storage, diversion, and development of water for the reclamation of arid and semi-arid lands. Henkel v. United States, 237 U.S. 43 (1915).

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 is _promoting its proprietary interests. Twin Falls Canal Co. v. Foote, 192 F. 583 (D. Ida. 1911).

The Reclamation Act is not a "revenue law" within the meaning of Revised Statutes, section 643, allowing removal to Federal Courts of suits brought in state courts "against any officer appointed under or acting by authority of any revenue law of the United States." Twin Falls Canal Co., Ltd. v. Foote, 192 Fed. 583 (D. Ida. 1911); City of Stanfield v. Umatilla Water Users' Assn., 192 Fed. 596 (D. Ore. 1911).

2. Constitutionality

There can be no doubt of the Federal government's general authority to construct projects for reclamation and other internal improvements under the general welfare clause, article I, section 8, of the Constitution as well as article IV, section 3, relating to the management and disposal of federal property. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 294 (1958).

In conferring power upon Congress to tax "to pay the Debts and provide for the common Defense and general Welfare of the United States," the Constitution delegates a power separate and distinct from those later enumerated, and one not restricted by them; thus Congress has a substantive power to tax and appropriate for the general welfare, limited only by the requirement that it shall be exercised for the common benefit as distinguished from some mere local purpose. It is now clear that this includes the power of Congress to promote the general welfare through large-scale projects for reclamation, irrigation, or other internal improvement. United States v. Gerlach Live Stock Co., 339 U.S. 725, 738 (1950).

The United States has constitutional authority to organize and maintain an irrigation project within a State where it owns arid lands whereby it will associate with itself other owners of like lands for the purpose of reclaiming and improving them, and for that purpose it exercises the right of eminent domain against other land owners to obtain land necessary to carry the proposed project into effect. Burley v. United States, et al., 179 Fed. 1, 102 C.C.A.

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429 (Ida. 1910), affirming 172 Fed. 615 (C.C. 1909). See also Magruder v. Belle Fourche Valley Water Users' Assn., 219 Fed. 72, 133 C.C.A. 524 (S.D. 1914).

The Reclamation Act is within the power of Congress as to lands within the States as well as Territories, under Constitution, article 4, section 3, giving it power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States", and is not in violation of the Constitution on the ground that it authorizes the expenditure of public money without an appropriation, since it is in itself an appropriation of the proceeds of land sold, nor as delegating legislative authority to the Secretary of the Interior. United States v. Hanson, 167 Fed. 881, 93 C.C.A. 371 (Wash. 1909).

6. Powers of Secretary-Generally

Section 10 of the Reclamation Act does not authorize the Secretary to construct extra capacity in a sewerage system beyond the needs for project construction purposes, and make this capacity available to an adjacent town in return for the town's agreement to operate and maintain the system. The proposed use would violate R.S. § 3678, 31 U.S.C. § 28, which limits the use of appropriated funds to the objects for which the appropriation is made, unless otherwise provided by law. 34 Comp. Gen. 599 (1955), in re Glendo, Wyoming.

In cases where, because of administrative laxity in enforcing the excess land limitations of reclamation law, or because projects were initiated prior to the enactment of section 46 of the 1926 Act, owners of excess lands have been receiving water therefor without having executed recordable contracts, the Secretary, in the exercise of his authority to perform all acts necessary and proper to carry the reclamation laws into full force and effect (sec. 10 of the Reclamation Act of 1902; sec. 15 of the Reclamation Project Act of 1939), may permit the continued delivery of water to such excess lands on condition that the owner, by the execution of a recordable contract, agrees to dispose of such lands within a reasonable time on reasonable conditions. Associate Solicitor Cohen Opinion, M34999 (October 22, 1947).

Secretary of the Interior had power to execute a plan of conservation whereby he stopped winter flow of water through power plant in irrigation district, ceased producing power in nonirrigating season for purpose of conserving such water for irrigating season, contracted with private power company to supply commercial demand in district, and preserved the profitable com

mercial power business which would otherwise have been lost through lack of dependable source of power during irrigation season. Burley Irr. Dist. v. Ickes, 116 F. 2d 529, 73 App. D.C. 23 (1940), cert. denied 312 U.S. 687.

Neither the Boulder Canyon Project Act nor the Reclamation laws generally authorize the Secretary of the Interior to establish a Federal reservation, in connection with the construction of the dam and powerplant, over which the United States would have exclusive jurisdiction pursuant to a Nevada statute generally ceding jurisdiction over lands acquired by the United States for public buildings. Six Companies, Inc. v. DeVinney, County Assessor, 2 F. Supp. 693 (D. Nev. 1933).

The Secretary of the Interior has no general supervisory authority under section 441, Revised Statutes, under section 10 of the Act of June 17, 1902, or under section 15 of the Act of August 13, 1914, to suspend public notices issued under the reclamation law. In re Shoshone irrigation project, 50 L.D. 223 (1923).

See C.L. 818, May 12, 1919, regarding authority of Secretary of the Interior to provide means for extermination of grasshoppers and other pests.

Under the Reclamation Act the Secretary of the Interior has power to contract with an irrigation district to supply, or partially supply, the district with water. Pioneer Irr. Dist. v. Stone, 23 Idaho 344, 130 Pac. 382 (1913); Hillcrest Irr. Dist. v. Brose, 24 Ida. 376, 133 Pac. 663 (1913); Nampa & Meridian Irr. Dist. v. Petrie, 153 Pac. 425 (1915). See also Nampa & Meridian Irr. Dist. v. Petrie, 223 Pac. 531, 37 Ida. 45 (1924).

7. —Leases and permits

The Secretary of the Interior may establish rules as to the use of withdrawn lands while not needed for the purpose for which they are reserved, and may lease them for grazing and limit animals to be grazed thereon; the revenue derived going into the reclamation fund. Clyde v. Cummings, 101 Pac. 106, 35 Utah 461 (1909).

There is no general statutory authority for leasing Government-owned land, and the Secretary of the Interior may adopt such methods as he deems in the best interest of the United States and the project. In the administration of the Boulder Canyon project area, the Bureau of Reclamation and the National Park Service may grant leases for lands and permits to engage in business activities to private individuals without advertising for proposals or securing competitive bids. Solicitor Margold Opinion, M-28694 (October 13, 1936).

An easement for the construction and maintenance of an electrical transmission line over lands purchased under the reclamation law could be granted for a maximum period of 50 years on certain conditions administratively imposed. Solicitor's Opinion, M-24897 (December 31, 1928), Newlands project.

The Secretary of the Interior has authority to make temporary leases of lands reserved or acquired by purchase for use in connection with an irrigation project contemplated under the provisions of the Reclamation Act where use under the proposed lease will not interfere with the use and control of the lands when needed for the purposes contemplated by the reservation or purchase. Op. Asst. Atty. Gen., 34 L.D. 480 (1906).

Temporary leases for grazing and other agricultural purposes may be made of lands acquired through condemnation proceedings for reservoir or canal purposes in reclamation projects during such periods as may elapse between the acquisition of title and the actual use of the same for reservoirs and canals. All such leases should state the purpose for which the lands were acquired and that such purpose will not in any manner be interfered with or delayed by the lease; should specifically provide for the immediate, or speedy, termination of the lease in event it is desired to utilize the land or any part thereof for reclamation works, or in event the work of reclamation is found to be hindered or delayed by reason thereof; and should be limited to one year, but may contain provision for renewal for the succeeding year in event the lands should not sooner be needed for reclamation purposes. Instructions, 39 L.D. 525 (1911).

Whenever it is reasonably necessary for the preservation of the buildings, works, and other property, or for the proper protection and efficiency of any reclamation project, or where special conditions make it advisable, first-form withdrawn or purchased lands may be leased to the highest bidder for a term to be decided upon by the Reclamation Service (Bureau of Reclamation) as

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the conditions may arise. Reclamation decision, March 23, 1917.

The Secretary has full authority to purchase lands necessary for reservoir purposes, to arrange the terms of purchases, and to allow the vendor to retain possession after the Government has taken possession until the land may be actually needed where by so doing the purchase may be more advantageously made; but he has no authority under said act to lease such purchased lands after the Government has taken possession thereof. Instructions, 32 L.D. 416 (1904). 8. -Overseas projects

Section 10 of the Reclamation Act is to be construed as relating only to projects of the United States and does not authorize the Bureau of Reclamation engineers to review designs for two dam projects in Ceylon, and prepare supplemental plans and specifications therefor, with funds to be provided in advance by the Government of Ceylon. Dec. Comp. Gen. B-60382 (October 8, 1946).

16. Rules and regulations-Generally

This section gives the Secretary of the Interior no authority or power that he would not have if it were omitted. Op. Atty. Gen., April 27, 1905.

Rules and regulations prescribed by the Secretary of the Interior under statutory authority have the effect of statutes and will be judicially noticed by the courts. Alford et al. v. Hesse, 279 Pac. 831 (Calif. 1929).

While this section authorizes the Secretary of the Interior to make such regulations as may be necessary and proper to carry this act into full force and effect, he is not authorized to amend, modify, or change statutory provisions fixing rights of a successful contestant, who has secured cancellation of any pre-emption homestead or timber culture entry. Edwards v. Bodkin, 249 Fed. 562, 161 C.C.A. 488 (Cal. 1918).

A rule by the Secretary of the Interior, the import of which is to carry into effect the provisions of an act relating to the public lands, is valid, and has the same binding force as the law itself. Clyde v. Cummings, 101 Pac. 106, 35 Utah 461 (1909).

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