« ForrigeFortsett »
enforced a limitation contained in the original act against land acquired under the supplemental act. 8 The Montana Supreme Court had a clear precedent for its decision.
a Three years earlier, Federal Judge Bourquin had so held in a bankruptcy case (In re Auge, 238 Fed. 621 (D. C. Mont. 1916)). On that occasion the court observed:
The bankrupt's contention that all said land is exempt is based on section 2296, R. S. * * * which reads:
“No lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor."
The chapter referred to is that of the Federal original homestead law, providing for entries of 160 acres or less. Later homestead enactments * * * permit entries for as much as 320 acres--enlarged homesteads-of public lands of certain quality and subject to somewhat different conditions. These latter are but additions to and amendments of the original law, and upon settled principles all form a whole, to be taken and read together as though the later enactments were part of the original law from the beginning, so far as the protection extended by section 2296 is concerned. Said section provides protection; other sections define the area protected. Changes in the latter affect not the former. Hence enlarged homesteads are “lands acquired under the provisions of this chapter,” within section 2296, and are entitled to its protection, even as lesser or ordinary homesteads are. (Emphasis supplied.]
Even in the absence of the specific provision of section 14 of the Boulder Canyon Project Act, the general structure of this statute reveals that it was not meant to exist independently but rather as a part of the legislative scheme embodied in the Federal reclamation law. For instance, section 1 contains the authorization for the Secretary of the Interior to construct the All-American Canal. The act specifically provides the expenditures for said main canal and appurtenant structures to be reimbursable, as provided in the reclamation law *
* *." In order to determine the extent and mode of reimbursement, the pertinent provisions of the Federal reclamation law must be consulted. Other reference to the Federal reclamation law are found in sections 4 (b),' section 5,10 and section 9 11 of the Boulder Canyon Project Act. “It cannot be said that an act so absolutely dependent upon prior acts is an independent statute" (First State Bank v. Bottineau County Bank, supra, at 164). Thus the intent of Congress, to make the Boulder Canyon Project Act part of the legislative pattern of the Federal reclamation laws, is clearly manifest.
There are many cases which discuss the meaning of the word "supplement" in statutory construction. The prevailing opinion clearly is that the term signifies something which adds to, or completes, or extends that which is already in existence, without changing or modifying the original (McCleary v. Bahcock, 169 Ind, 228, 82 N. E. 453 (1907); Lost Creek School T'p. 1, Vigo Co. v. York, 215 Ind. 636, 21 N. E. (20) 58, 60
See also Loomis v. Runge, 66 Fed. 856, 859 (C. C. A. 5th 1895); Swanson v. State, 132 Neb. 82, 271 N. W. 264, 268 (1937); Edwards v. Stein, 94 N. J. Eq. 251, 119 Atl. 504, 507 (1923); Bradley & Currier Co. v. Loving, 54 N. J. L. 227, 23 Atl. 685, 686 (1892); Rahway Savings Institution v. City of Rahway, 53 N. J. L. 48, 20 Atl. 756, 757 (1890)).
I "SEC. 4 (b) Before any money is appropriated for the construction of said main canal and appurtenant structures to connect the Laguna Dam with the Imperial and Coachella Valleys in California, or any construction work is done upon said canal or contracted for, the Secretary of the Interior shall make provision for revenues, by contract or otherwise, adequate in his judgment to insure payment of all expenses of construction, operation, and maintenance of said main canal and appurtenant structures in the manner provided in the reclamation law." (Emphasis supplied.)
10 "SEC. 5. That the Secretary of the Interior is hereby authorized, under such general regulations as he may prescribe, to contract for the storage of water in said reservoir and for the delivery thereof • * • charges that will provide revenue which, in addition to other revenue accruing under the reclamation law and under this Act, will in his judgment cover all expenses of operation and maintenance incurred by the United States on account of works constructed under this Act and the payments to the United States ***" (Emphasis supplied.)
11 SEC. 9. That all lands of the United States found by the Secretary of the Interior to be practicable of irrigation and reclamation by the irrigation works authorized herein shall be withdrawn from public entry. Thereafter, at the direction of the Secretary of the Interior, such lands shall be opened for entry, in tracts varying in size but not exceeding one hundred and sixty acres, as may be determined by the Secretary of the Interior, in accordance to ith the provisions of the reclamation law [Emphasis supplied.)
Furthermore, there is no language in the Boulder Canyon Project Act which expressly and directly repeals the excess-land provisions of the reclamation law. As laws are presumed to be enacted with deliberation and with a full knowledge of all existing statutes on the same subject, it is only reasonable to conclude that Congress, in passing the Boulder Canyon Project Act, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two should prove irreconcilable (United States v. Noce, 268 U. S. 613 (1925); 12 United States v. Greathouse, 166 U. S. 601, 605 (1897); 13 Frost v. Wenie, 157 U. S. 46 (1895); 14 Henderson's Tobacco, 11 Wall. (78 U. S.) 652 (1870).15 The rule has been well stated in Red Rock v. Henry (106 U. S. 596 (1882)), 16 at
* * * when an affirmative statute contains no expression of a purpose to repeal a prior law, it does not repeal it unless the two acts are in irreconcilable conflict, or unless the later statute covers the whole ground occupied by the earlier and is clearly intended as a substitute for it, and the intention of the legislature to repeal must be clear and manifest.
Repeals by implication are not favored, and it will not be presumed that, by a subsequent enactment, the legislature intended to repeal former laws upon the general subject, and more especially in a case such as this where the existing reclamation law is referred to directly. See decisions cited in notes 11 through 15 and State v. Bowker (63 Mont. 6, 205 Pac. 961, 963 (1922)); 17 Jobb v. Meagher County (20 Mont. 424, 51 Pac. 1034 (1898)).18
Nothing in the legislative history of the Boulder Canyon Project Act indicates that it was the intention of Congress to abdicate the public policy embodied in the excess-land provisions of the reclamation law and thus open the door to the vicious real estate speculation which was all ready to take advantage of the Boulder Canyon project lands. Congress was fully aware of this danger, and it was commonly
12 This case held that a provision in sec. 11 of the act of May 18, 1920 (41 Stat. 601), reading, “That hereafter longevity pay for officers in the Army, Navy, Marine Corps, Coast Guard, Public
Health Service, and Coast and Geodetic Survey shall be based on the total of all service in any or all of said services," did not repeal sec. 6 of the act of October 24, 1912 (37 Stat. 569, 594), providing “That hereafter the service of a cadet who may hereafter be appointed to the United States Military Academy, or to the Naval Academy, shall not be counted in computing for any purpose the length of service of any officer of the Army."
13 The proviso in the act of March 3, 1887 (24 Stat. 505), known as the Tucker Act, "That no suit against the Government of the United States shall be allowed under this Act unless the same shall have been brought within six years after the right accrued for which the claim is made," did not repeal so much of sec. 1069 of the Revised Statutes as provides, “that the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid, within three years after the disability has
11 This decision held that Congress, by enacting the act of December 15, 1880 (21 Stat. 311), opening for settlement certain lands in Kansas within the abandoned Fort Dodge Military Reservation, "in the absence of express words of repeal," did not impair the rights guaranteed to the Osage Indians by the treaty of 1865.
15 The doctrine of repeal by implication was repudiated. The case held that the act of July 20, 1868, im. posing taxes on distilled spirits and tobacco, did not repeal the proviso to the 25th section of the Internal Revenue Act of March 2, 1867, which limited to 20 days the time for commencing proceedings to enforce forfeitures.
18 The Minnesota statutes in question both concerned municipal financing.
17 This case, which held that the procedure provided by a State prohibition statute, enacted in 1921, did not by implication supersede procedures established under a general statute, enacted in 1917, contains a comprehensive discussion of the subject. The Montana Supreme Court said: “Repeals by implication are not favored, and it will not be presumed that by a subsequent enactment the legislature intended to repeal former laws upon the subject not mentioned *** and more especially so in the case before w where the existing law appears to have been under consideration to the extent of direct reference thereto, both in the title and in the repealing clause." (Emphasis supplied.)
18 Two Montana statutes concerning the appointment of deputy sheriffs were involved. The court refused to countenance any idea of repeal by implication.
assumed by Congress that the Boulder Canyon Project Act was subject to the excess-land provisions.19
In the light of the foregoing authorities, it is my conclusion that the Boulder Canyon Project Act is supplementary to the reclamation law, except as otherwise therein provided, and, accordingly, the excess-land provisions are applicable to the Coachella Valley County Water District lands.
It now becomes necessary to examine and refute the principal arguments against the foregoing conclusion.
It has been contended, for example, that in view of the language of section 14 of the Boulder Canyon Project Act the reclamation law applies only to the "construction, operation, and management of the works.” This contention must, by necessity, be based either on the doctrine of ejusdem generis or on the doctrine of expressio unius est exclusio alterius. These doctrines belong more properly in the field of contract construction than statutory construction. The courts have repeatedly held that these doctrines are not of universal application, but serve only as an aid in the ascertainment of the meaning of the law, and must yield whenever a contrary intention of the lawmaker is apparent (Springer v. Philippine Islands, 277 U. S. 189, 206 (1928); Helvering v. Stockholm Enskilda Bank, 293 U. S. 84, 89 (1934)). The contrary intent of Congress is apparent in section 14 of the Boulder Canyon Project Act.
The unreported decision of the Superior Court for Imperial County, Calif., in Hewes v. All Persons (May 24, 1932), has been cited as precedent for the nonapplicability of the excess-land provisions. The superior court held that the contract between the United States and the Imperial Irrigation District, dated December 1, 1932, providing for the construction of the All-American Canal, and all proceedings leading to its execution, are valid in all particulars. The jurisdiction of the court was invoked pursuant to the followin gprovision of the contract:
ARTICLE 31. The execution of this contract by the District shall be authorized by the qualified electors of the District at an election held for that purpose. Thereafter, without delay, the District shall prosecute to judgment proceedings in court for a judicial confirmation of the authorization and validity of this contract. The United States shall not be in any manner bound under the terms and conditions of this contract unless and until a confirmatory final judgment in such proceedings shall have been rendered, including final decision, or pending appellate action if ground for appeal be laid. * * *
The court made the following finding No. 35: That under said contract between the United States and Imperial Irrigation District, dated the 1st day of December 1932, the delivery of water will not be limited to 160 acres in a single ownership and that the lands of the defendant Charles Malan in excess of 160 acres will not be denied water because of the size of said ownership, and that water service to lands regardless of the size of owner
11 See, for example, the following discussion in the House of Representatives (69 Cong. Rec. 9626 (1928)): "Mr. MORTON D. HULL. The language of the bill is not clear to me. “Mr. Douglas of Arizona. The bill authorizes the Secretary of the Interior to construct a canal to the Imperial and Coachello (sic) Valleys. The appropriation bill in specific terms is only for the All-American Canal to the Imperial Valley. If the Coachello (sic) Valley, where there are public lands, and if the areas in the vicinity of the Imperial Valley are to be brought in under cultivation, then the Congress must appropriate another $18,000,000.
"Mr. SWINO. Mr. Chairman, if the gentleman will permit, I think the gentleman from Ilinois (Mr. Morton D. Hull) is referring to the limitation on the area that one person can hold after the canal is built, requiring that any large holding must be broken up, and if it is not broken up, it must be turned over to the Secretary of the Interior, who may sell it for an appraised price, so that no one will hold over a maximum of 160 acres.
"Mr. Douglas of Arizona. That is in the bill. I thank the gentleman. In this connection I might state also that the Imperial Valley and southern California is deluged with advertisements now: 'Buy land in Imperial Valley now; speculate on Boulder Dam.'” (Emphasis supplied.)
ship will not in any manner affected by said contract, so far as the size of individual ownership is concerned.
The court amplified this finding in its decision as follows:
USE OF WATER NOT LIMITED BY RECLAMATION LAW
Defendant Malan, the owner of 210 acres of land in Imperial Irrigation District, asserts that the contract is void because section 5 of the reclamation law provides that no right to the use of water for land in private ownership shall be sold for a tract exceeding 160 acres in any one landowner, thus preventing him from obtaining water for all of his land, that he will be required to pay water assessments upon all of his land but will be able to get water for only 160 acres, and that the contract takes from him, without compensation, his water right for all of his land in excess of 160 acres.
The water right of neither the defendant Malan nor of any other person in the Imperial Irrigation District may be taken by the district or by the Government without compensation. Furthermore, section 5 of the reclamation law does not apply in these proceedings. The Boulder Canyon Project Act provides a complete scheme for the construction of the Boulder Dam, the All-American Canal, and the dam diverting water from the Colorado River into the canal. Section 1 of the Boulder Canyon Project Act provides that the expenditures for the main canal and appurtenant structures shall be “reimbursable, as provided in the reclamation law," and in section 4 (b) it is required that before any money is appropriated for the construction of the main canal and appurtenant structures, the Secretary shall make provision for revenues adequate in his judgment to secure payment of all expenses of construction, operation, and maintenance in the manner provided in the reclamation law." Section 14 provides that the Boulder Canyon Project Act "shall be deemed a supplement to the reclamation law, which said reclamation law shall govern the construction, operation, and management of the works herein authorized, except as otherwise herein provided." The act does not adopt the reclamation law or any of its provisions, except as above stated, and the authority of the Secretary with reference to the delivery of water must be found in the Boulder Canyon Project Act and not in the reclamation law. Section 5 of the Boulder Canyon Project Act authorizes the secretary to contract for the delivery of water “under such general regulations as he may prescribe and provide that “contracts respecting water for irrigation and domestic uses shall be for permanent service. Article 30 of the contract reads as follows: “Except as provided by the Boulder Canyon Project Act, the reclamation law shall govern the construction, operation, and maintenance of the works to be constructed hereunder." There nothing in the statute or in the contract limiting the acreage to which water may be sold and delivered.
The reading of article 31 of the contract shows that the jurisdiction of the court was invoked solely "for a judicial confirmation of the authorization and validity of the contract.” Since the court was not called upon to determine the applicability of section 5 20 of the Reclamation Act to the contract, it thus clearly exceeded its authority. Accordingly, its finding No. 35, and that part of the opinion referring to it, must be regarded as dictum. This dictum is narrowly confined to the question of the applicability of section 5 of the reclamation law. Even assuming for purposes of discussion that the California court might be right as to the nonapplicability of section 5, this decision completely disregards the whole legislative scheme of the Federal reclamation laws on the subject of excess-land laws, e.g., section 46 of the Omnibus Adjustment Act, supra; the Warren Act, supra.
Appeal was instituted by the Imperial Water District, and by stipulation of the parties the appeal was dismissed by the Supreme Court of California on February 26, 1934. The outcome of this action was of utmost importance to the United States because the construction
20 This section provides: "No right to the use of water for land in private ownership shall be sold for a tract exceeding one hundred and sixty acres to any one landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of such land, and no such right sball permanently attach until all payments therefor are made." (Emphasis supplied.)
of the All-American Canal was delayed because of a decision of the Comptroller General who held (A-32702, December 6, 1933) that no funds might be expended for construction until the contract had been found valid by the State court of last resort.
These circumstances furnish the background and explanation for a letter of former Secretary of the Interior, Hon. Ray Lyman Wilbur, dated February 24, 1933. In this letter the Secretary stated:
Early in the negotiations connected with the All-American Canal contract the question was raised regarding whether and to what extent the 160-acre limitation is applicable to lands to be irrigated from this canal. Upon careful consideration the view was reached that this limitation does not apply to lands now cultivated and having a present water right. These lands, having already a water right, are entitled to have such vested right recognized without regard to the acreage limitation mentioned. Congress evidently recognized that these lands had a vested right when the provision was inserted that no charge shall be made for the storage, use, or delivery of water to be furnished these areas.
A study of the letter reveals that it completely disregards all other excess-land provisions except section 5 of the Reclamation Act of 1902.21 This construction of the congressional intention is not borne out by a review of the proceedings of Congress. Senator Pittman introduced, on December 14, 1928, the following amendment:
That no charge shall be made for water or for the use, storage, or delivery of water for irrigation or water for potable purposes in the Imperial or Coachella Valleys.22
The following discussion ensued:
I will state that originally I entered a motion to strike out that whole proviso. However, as the representatives of Imperial Valley desired [sic] to stay in, and are willing to limit its effects entirely to that valley, I defer to their wishes
Mr. Johnson. I have no objection to the amendment that is suggested.
Mr. King. Mr. President, may I inquire of the Senator from Nevada whether that is similar to the amendment which was offered yesterday? I have just entered the Chamber, and did not hear the entire statement of the Senator. The purpose, as I understand, of the amendment, is to relieve Imperial Valley from any charges whatever, except such as would be imposed under the reclamation act.
Mr. PITTMAN. That is the opinion of the representatives of Imperial Valley, and that is the reason why it is put in that form. They feel that in some way that paragraph is more in harmony with the reclamation act. There is some doubt in my mind as to that; but, as they are willing to limit its effect entirely to their own valley, it is not a matter of such great concern to me.
Mr. KING. Let me ask the Senator, in my own time, if he does not have the time, whether in his opinion the new lands which it is expected will be brought under cultivation in the Coachella or Imperial Valleys ought to be exempted from contribution to the construction of the dam?
Mr. PitTMAN. There is no charge in this bill whatever on the Imperial Valley land or the Coachella Valley land for the construction of the dam or powerhouse.
Mr. King. I know that, but inquire whether the Senator believes the users of water should exempt (sic). Under the reclamation projects, as the Senator knows, those who make contracts for the purchase of land or the purchase of water are required to pay for both water and the construction of canals and dams, and the amount which they pay includes all of the expenses of the Government. Here we are asking the settlers to pay only for the canal, and exempting them from paying anything whatever toward the construction of the dam.
Mr. PitTMAN. I admit this is an exception to the practice under the reclamation act in that it relieves this land from the payment of any part of the cost of the
21 While this section, set out in footnote 20. supra, limits the sale of water rights to tracts of 160 acres or less, sec. 46 of the Ominbus Adjustment Act, set out previously in the text of this opinion, uses the term “delivered" instead of "sold."
22 70 Cong. Rec. 575 (1928); the amendment was accepted and appears in exactly the same wording as the last proviso of sec. 1 of the Boulder Canyon Project Act.