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telle, circuit judges, and the decision was rendered February 15, 1933, the court finding that the provisions of the Nevada law, upon which the State mine inspector relied, were not applicable to work on the Boulder Canyon project. An injunction was issued, in accordance with the petition of the plaintiff. (Six Companies, Inc., v. Stinson, 2 Fed. Supp. 689.)

All-American Canal.-By order of the United States District Court for the Southern District of California, dated December 5, 1931, the temporary order brought against the Imperial Irrigation District to restrain the district from entering into an agreement with other districts and other agencies for an ap portionment among themselves of water rights in the Colorado River system was vacated and discharged, and motion of complainants for an interlocutory injunction pendente lite was denied. The apportionment contract was an im portant part of the program for the construction of the All-American Canal. The court stated that the contract standing alone could not bring additional lands into the district, as contended by the plaintiffs, and stated further: "It is held that the execution of the allocation contract by the District is not ultra vires or beyond the power of the directors of the District, and that complainants have shown no existing or threatened injury and damage by reason of the allocation contract that is not remediable by available legal provisions under the laws of California". (Greeson and Strieby v. Imperial Irrigation District, C. C. A. Cal. 1932, 59 Fed. (2d) 529, affirming (D. C. 1931) 55 Fed. (2d) 321.)

All-American Canal contract validated. In an opinion dated May 24, 1932, the Superior Court of California held that the contract with the Imperial Irrigation District, dated Dec. 1, 1932, providing for the construction of the AllAmerican Canal, and all proceedings leading up to the execution thereof, are valid in all particulars. The court held that although the California Waiver Act and the Water Limitation Act (which were approved Mar. 4, 1929, pursuant to the requirements of sec. 4 (a) of the Boulder Canyon Project Act) did not take effect until August 14, 1929, 90 days after the adjournment of the legislature, the fact that the President's proclamation declaring the Boulder Canyon Project Act in effect was issued before the expiration of said period. of 90 days did not detract from its validity. The court also overruled the demurrer of the Coachella Valley Water District and denied a motion to consolidate the validation proceedings with the case of Charles Malan v. Imperial Irrigation District et al. (Evan T. Hewes (substituted for John L. DuBois) et al., v. All Persons, etc. Charles Malan v. Imperial Irrigation District et al.) In decision A-32702, dated December 6, 1933, the Comptroller held (construing sec. 4 (b) of the Boulder Canyon Project Act) that inasmuch as the Coachella Valley County Water District had filed appeal in the Supreme Court of California from decision of the lower court validating the contract of Dec. 1, 1932, with the Imperial Irrigation District for the construction of the AllAmerican Canal, no funds may be expended for construction until the contract. has been found valid by the court of last resort.

Section 1 of the Boulder Canyon Project Act authorizes the Secretary of the Interior to construct a main canal connecting the diversion dam with Imperial and Coachella Valleys. The statute authorizes, but does not require, the building of the canal to both Imperial and Coachella Valleys, or to either one of them. If one valley, no matter which, executes a contract sufficient in the judgment of the Secretary to insure payment of the cost (as required by Section 4 (b) of the Boulder Canyon Project Act), the Secretary is authorized to construct the canal to that valley without the concurrence of the other. It was never intended that the refusal of one valley to enter into a contract would prevent the other from so doing. There is nothing in the Boulder Canyon Project Act preventing the Secretary from entering into a separate contract with the duly constituted authorities of each valley. (Idem.)

See the third paragraph under "Limit of acreage" on page 46.

All-American Canal right-of-way.-In decision A-63595, dated Sept. 13, 1935, the Comptroller General rules that funds from the allotment of $9,000.000 under the National Industrial Recovery Act for construction of the All-American Canal, California, are available to pay the expense of giving published notice to mining claimants whose addresses are unknown and whose mining claims conflict with the right-of-way for the canal.

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Cost of workmen's compensation insurance.-Six Companies, Inc., entered into a contract for the construction of Boulder Dam, Boulder Canyon Project. The contractor was ordered to perform extra work under an article of the contract providing, "The extra work and material shall be paid for at actual necessary cost as determined by the contracting officer, plus fifteen percent for superintendence, general expense, and profit. The actual necessary cost will

in no case include any allowance for office expenses, general superintendence, or other general expenses." By another article of the contract it was provided that the decision of the head of the Department upon questions of fact should be final and conclusive. The contractor incurred expense for workmen's compensation insurance on the work so performed, and made a claim for this expense as an item of the cost of the extra work. The Department decided adversely to the contractor's claim (53 I. D. 586), and upon appeal to the Comptroller General, the claim was disallowed, by decision A-38974, dated March 28, 1932, the cost of the insurance being held to be a general expense. The Comptroller General also pointed out that the decision of the Department was final under United States v. Mason & Hangar Co., 260 U. S. 323, and Ley & Co. v. United States, 273 U. S. 386.

Purchase of cement in bulk.-See note under this caption following section 4, act of June 17, 1902.

Tax on electrical energy. With regard to the tax imposed on electrical energy by section 616 of the Revenue Act of 1932, under decision of the Commissioner of Internal Revenue, dated September 9, 1932, power used for domestic or commercial consumption is taxable, and so far as the contractors for the construction of Boulder Dam utilize electrical energy for distribution to their employees or for commercial consumption the tax is applicable. Instructions in regard to this matter were contained in letter from Acting Commissioner to Chief Engineer, dated October 4, 1932.

*

Indian title to nonirrigable lands Yuma reservation denied-District not required to give bond. The construction of the All-American Canal necessitated crossing the Yuma Indian Reservation, Calif.. and the Indian Bureau on behalf of the Yuma Indians claimed compensation therefor and a guarantee against future damage from the operation of the canal. The act of August 15, 1894 (28 Stat. 332) ratified an agreement in which the Indians ceded to the United States the Yuma Reservation established January 9, 1884, and after directing disposition of the irrigable land stated "all the lands ceded by said agreement which are not susceptible of irrigation shall become a part of the public domain and shall be open to settlement and sale and be subject to disposal under the provisions of the general land laws." The Solicitor in opinion M-28198 held that the relinquishment of the Indians as and when the nonirrigable character of the lands was determined became fully effective as of the date of the agreement and that the Indian title to the nonirrigable lands cannot be sustained. He held that in the operation of the canal the ordinary rule of negligence applies and that in the absence of an authorization in the contract under which the United States is constructing the canal for the Imperial Irrigation District, the Secretary of the Interior is without authority to require the District to give bond. (Decision of Solicitor, approved January 8, 1936, by First Assistant Secretary.)

Miscellaneous reference.-See New Reclamation Era, June, 1930, page 106. citing California legislation regarding the Boulder Canyon project act.

Sec. 2. (a) [Colorado River Dam fund established. (b) Secretary of Treasury to advance amounts necessary up to $165,000,000. $25,000,000 to be allocated to flood control, to be repaid. (c) No expenditures for operation and maintenance except from appropriations. (d) Secretary of Treasury to charge fund for payment of interest. (e) Secretary of Interior to certify to Treasury amount of money in fund in excess of that necessary for construction, etc.]-There is hereby established a special fund, to be known as the "Colorado River Dam fund" (hereinafter referred to as the "fund"), and to be available, as hereafter provided, only for carrying out the provisions of this act. All revenues received

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in carrying out the provisions of this act shall be paid into and expenditures shall be made out of the fund, under the direction of the Secretary of the Interior.

(b) The Secretary of the Treasury is authorized to advance to the fund from time to time and within the appropriations therefor, such amounts as the Secretary of the Interior deems necessary for carrying out the provisions of this act, except that the aggregate amount of such advances shall not exceed the sum of $165,000,000. Of this amount the sum of $25,000,000 shall be allocated to flood control and shall be repaid to the United States out of 622 per centum of revenues, if any in excess of the amount necessary to meet periodical payments during the period of amortization, as provided in section 4 of this act. If said sum of $25,000,000 is not repaid in full during the period of amortization, then 622 per centum of all net revenues shall be applied to payment of the remainder. Interest at the rate of 4 per centum per annum accruing during the year upon the amounts so advanced and remaining unpaid shall be paid annually out of the fund, except as herein otherwise provided.

(c) Moneys in the fund advanced under subdivision (b) shall be available only for expenditures for construction and the payment of interest, during construction, upon the amounts so advanced. No expenditures out of the fund shall be made for operation and maintenance except from appropriations therefor.

(d) The Secretary of the Treasury shall charge the fund as of June 30 in each year with such amount as may be necessary for the payment of interest on advances made under subdivision (b) at the rate of 4 per centum per annum accrued during the year upon the amounts so advanced and remaining unpaid, except that if the fund is insufficient to meet the payment of interest the Secretary of the Treasury may, in his discretion, defer any part of such payment, and the amount so deferred shall bear interest at the rate of 4 per centum per annum until paid.

(e) The Secretary of the Interior shall certify to the Secretary of the Treasury, at the close of each fiscal year, the amount of money in the fund in excess of the amount necessary for construction, operation and maintenance, and payment of interest. Upon receipt of each such certificate the Secretary of the Treasury is authorized and directed to charge the fund with the amount so certified as repayment of the advances made under subdivision (b), which amount shall be covered into the Treasury to the credit of miscellaneous receipts. (45 Stat. 1057.)

Textual note.-Section 2 (a) and succeeding paragraphs, (b), (c), (d), and (e), appear in chapter 12A, title 43, United States Code, as section 617a (a), (b), (c), (d), and (e), respectively, with the following changes: The word "act," occurring twice in section 2 (a) and twice in section 2 (b), is codified in section 617a (a) and section 617a (b) as "chapter" in each case; and "section 4," referred to in section 2 (b), appears as "section 617c."

NOTES

Secretary not required to make provision for amortization of amount allocated to flood control. The language of section 2 (b) shows clearly that Congress did not regard the $25,000,000 thereby allocated to flood control as falling within the amortization plan embodied in section 4 (b). The $25,000,000 allocated to

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flood control must be regarded as falling outside of the words "all amounts advanced to the fund under subdivision (b) of section 2 for such works" in section 4 (b). It is my opinion that the Secretary of the Interior is not required, in fixing the sale rates for power to be generated at Boulder Dam, to make provision for the amortization within the 50 years of the $25,000,000 allocated by the act to flood control. (36 Op. Attorney General, 121, Dec. 26, 1929.)

Interest on $25,000,000 allocated to flood control.-It does not seem reasonable to suppose that Congress intended to make the payment of interest on the $25,000,000 allocated to flood control an absolute charge during the 50 years when it left the payment of the principal to the chance that there might be excess earnings during that period. I am inclined to believe that interest should be ultimately paid on the $25,000,000 from the same source as is provided for the payment of the principal, to-wit: out of 621⁄2 per cent of the excess earnings during the 50-year period and out of 622 per cent of the net earnings thereafter. (Id.)

School buildings, transportation of pupils, swimming pool.-In decision A-38343, dated September 29, 1931, the Comptroller General held as follows: "In none of the statutes creating the Colorado River Dam fund, appropriating therefor, and stating the purposes for which the fund would be available, is there any provision specifically, or by reasonable implication, making the fund available for construction of school buildings, transportation of pupils, or construction of a swimming pool. The general authority vested in the Secretary of the Interior by section 14 of the Boulder Canyon Project Act and section 10 of the Reclamation Act of June 17, 1902, is not sufficient to render the fund available for any item of expenditure the Secretary of the Interior may approve, regardless of its connection with the purposes for which the fund was created and appropriated. There must be a direct relationship between the purposes for which the expenditure is proposed and the purposes for which the fund was created and appropriated." Upon request for reconsideration the Comptroller General, under date of October 17, 1931, stated that in view of the further representations made to the effect that the construction of the Boulder Dam was being delayed by lack of school facilities and that "the erection of school buildings is necessary to carry out the purposes of the project act", no objection would be interposed to the use of the Colorado River Dam fund for the construction of temporary buildings in which schools may be conducted during the current school year, provided the contractor will bear the expense of maintaining and operating the schools unless and until otherwise specifically provided for by law.

But see item in appropriation act of April 22, 1932.

See note following section 3 of this act entitled "Purchase of title insurance in connection with right-of-way agreements".

Interchange of funds.-See note under this caption of Comptroller General's decision A-41637, dated June 14, 1932, in appropriation act of April 22, 1932. Percentage deductions required by Economy Act.-In decision A-42691 dated February 13, 1933, the Comptroller General held that the amount of Economy Act deductions from the total compensation of employees who are paid out of the Colorado River Dam fund is required to be advanced from appropriated funds as a part of the cost of construction in the same manner as the remainder of the compensation of the employees and is subject to 4-percent interest charges provided by section 2 (b) of the act of December 21, 1928 (45 Stat. 1057), on all advances from the general fund to the special fund. The impounding of Economy Act deductions from the total compensation of employees who are paid out of the Colorado River Dam fund should be directly from such special fund to the impounded fund.

In decision A-56169, of July 2, 1934, the Comptroller General held that economy deductions under secs. 110 and 203 of the act of June 30, 1932, and under sec. 4 (d) of the act of March 20, 1933, are a part of the construction cost of the Boulder Canyon project and that the impounding and deposit of same to the surplus fund of the Treasury do not constitute a return or repayment of these amounts within the purview of the Boulder Canyon Project Act of December 21, 1928. Interest on said amounts must continue until repayment has been made in accordance with the terms of said act.

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Interest must be charged on funds advanced and returned unexpended.-In decision A-46044 dated February 28, 1933, addressed to the Secretary of the Treasury, the Comptroller General held that interest, at the rate of 4 percent, prescribed by sec. 2 (d), could not be remitted on funds advanced to the Colorado River Dam fund, placed to the credit of the Interior Department but later returned to the Treasury unexpended.

Sec. 3. [Appropriation not exceeding $165,000,000 authorized.]-There is hereby authorized to be appropriated from time to time, out of any money in the Treasury not otherwise appropriated, such sums of money as may be necessary to carry out the purposes of this act, not exceeding in the aggregate $165,000,000. (45 Stat. 1058.)

Textual note.-The word "act" in the next to the last line of above section is codified as "chapter" in section 617b, chapter 12A, title 43, United States Code. No other change in this section.

NOTES

Reduction of costs on authorized construction.-Section 320 of the "Economy Act" of June 30, 1932, relative to restriction on construction and rental of buildings is applicable to section 3 of the Boulder Canyon Project Act.

Purchase of title insurance in connection with right-of-way agreements.-In decisions A-39589 (dated, respectively, Dec. 30, 1931, and Jan. 29, 1932) the Comptroller General, in construing the Boulder Canyon Project Act in connection with section 7 of the act of June 17, 1902 (32 Stat. 388), held that Boulder Canyon project funds may be used to purchase land title abstracts or certificates with or without insurance payment to be made under the appropriation available for the purchase price, if such abstracts or certificates are necessary to enable the Secretary of the Interior, or such of his subordinates as he may designate, to determine the validity of the title to the land to be acquired.

The Boulder Dam appropriation is available for payment for placing and designing of panels, tablets, and inscriptions, award to be made on competitive designs by known artists. (Comptroller General's decision A-61595, May 24, 1935.)

Sec. 4. (a) [When act effective-Ratification of Colorado River compact-Proclamation by President-Agreement by California requiredAgreement authorized by Arizona, California, and Nevada-Apportionment of waters-Consumptive use of Gila River by Arizona-Water for domestic and agricultural use. (b) Contracts required for revenues to insure payment of expenses of operation and maintenance, etc., and repayment of construction within 50 years, before any money is appropriatedWork on main canal contingent on provision to insure payment of expenses-Payments to Arizona and Nevada.]-This act shall not take effect and no authority shall be exercised hereunder and no work shall be begun and no moneys expended on or in connection with the works or structures provided for in this act, and no water rights shall be claimed or initiated hereunder, and no steps shall be taken by the United States or by others to initiate or perfect any claims to the use of water pertinent to such works or structures unless and until (1) the States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming shall have ratified the Colorado River compact, mentioned in section 13 hereof, and the President by public proclamation shall have so declared, or (2) if said States fail to ratify the said compact within six months from the date of the_passage of this act then, until six of said States, including the State of California, shall ratify said compact and shall consent to waive the provisions of the first paragraph of Article XI of said compact, which makes the same binding and obligatory only when approved