Charles Swigart v. Baker
| Decision Date | 26 May 1913 |
| Docket Number | No. 944,944 |
| Citation | 229 U.S. 187,33 S.Ct. 645,57 L.Ed. 1143 |
| Parties | CHARLES H. SWIGART, E. McCulloch, and R. K. Tiffany, Appts., v. D. P. BAKER |
| Court | U.S. Supreme Court |
Assistant Attorney General Knaebel and Messrs. S. W. Williams and W. W. Dyar, Attorneys in the Department of Justice, for appellants.
Mr. W. T. Dovell for appellee.
[Argument of Counsel from pages 188-191 intentionally omitted] Mr. Justice Lamar delivered the opinion of the court:
The Sunnyside Unit of the Yakima Irrigation Project was so far completed in 1909 that the Secretary of the Interior gave notice that water would be furnished for irrigation purposes, and that The appellee, Baker, applied for a water right and paid the assessed charges until 1911, when he refused to pay the 95 cents per acre for maintenance and operation, on the ground that the Secretary had no authority to make such an assessment. The reclamation officers thereupon threatened to cut off the supply of water, and Baker at once filed, in the United States circuit court for the eastern district of Washington, a bill against them, alleging that the charge for maintenance was illegal, that his crops would be destroyed if water was not furnished, and praying that the reclamation officers should be perpetually enjoined from cutting off the supply of water because of his failure to pay the illegal assessment.
The defendants in their answer set up that the charge of 95 cents per acre, per annum, for maintenance and operation, had been lawfully made by the Secretary of the Interior under the power conferred upon him by statute. The case was heard on bill and answer, and the bill dismissed. 196 Fed. 569. Baker took the case to the circuit court of appeals, where, one judge dissenting, the decree was reversed (199 Fed. 865) on the ground that the Secretary of the Interior could not assess irrigable land with the cost of maintenance and operation.
Since its adoption in 1902 the act has always been differently construed by the Secretary of the Interior, who, in granting water rights, has uniformly assessed the landowners with the cost of maintenance. The contrary construction by the circuit court of appeals raises a question of great importance to the owners of the land now irrigated. It is of equal importance to the government and to that part of the public interested in the reclamation of those portions of the arid region which can be irrigated as soon as funds are available. For, by so much as the fund is depleted in the payment of operating charges at one place, by so much is the reclamation of arid lands elsewhere postponed.
The statute provides that the cost of construction of the project shall be charged The phrase is not expressly defined, and being general in its terms, is not necessarily limited to building, but may include the preservation and maintenance of what has been built. For example, a statute authorizing the levy of a tax to construct a sewer was held to empower the city to levy taxes for its maintenance. Power to construct a dock imposed the duty of operating it. Permission to 'construct internal improvements' warranted the purchase of a plant already built, and authority to construct a road conferred power to maintain it. Re Fowler, 53 N. Y. 60; Seymour v. Tacoma, 6 Wash. 138, 32 Pac. 1077; Atty. Gen. v. Boston, 142 Mass. 200, 7 N. E. 722; Pelham v. The B. F. Woolsey, 16 Fed. 418; Atchison, T. & S. F. R. Co. v. McConnell, 25 Kan. 372; Bell v. Maish, 137 Ind. 226, 36 N. E. 358, 1118; Weston v. Hancock County, 98 Miss. 800, 54 So. 307. So, in the present case the statute provides that the Secretary may assess 'the cost of construction of the project' without defining the term, and it may assist in arriving at the legislative intent to refer briefly to the facts leading up to the passage of the reclamation act.
The official reports show that, in 1902, there were in sixteen states and territories 535,486,731 acres of public land still held by the government and subject to entry. A large part of this land was arid, and it was estimated that 35,000,000 acres could be profitably reclaimed by the construction of irrigation works. The cost, however, was so stupendous as to make it impossible for the development to be undertaken by private enterprise; or, if so, only at the added expense of interest and profit private persons would naturally charge. With a view, therefore, of making these arid lands available for agricultural purposes by an expenditure of public money, it was pro- posed that the proceeds arising from the sale of all public lands in these sixteen states and territories should constitute a trust fund to be set aside for use in the construction of irrigation works,—the cost of each project to be assessed against the land irrigated, and as fast as the money was paid by the owners back into the trust, it was again to be used for the construction of other works. Thus the fund, without diminution except for small and negligible sums not properly chargeable to any particular project, would be continually invested and reinvested in the reclamation of arid land. See H. R. Report No. 1468, 57th Congress, 1st session.
The general outline of this plan was approved by Congress, which, on June 17, 1902 (32 Stat. at L. 389, chap. 1093), passed 'An Act Appropriating the Receipts from the Sale and Disposal of Public Lands in Certain States and Territories to the Construction of Irrigation Works for the Reclamation of Arid Lands.'1
The statute provided that the money arising from the sales of the public lands in these states and territories was to be known as the reclamation fund, and was to be used for the purpose of reclaiming arid lands. Provision was made for preliminary surveys, and when the Secretary determined that a project was practicable, he was authorized to make contracts for its construction, if there were funds available. The land capable of being irrigated was to be open only to homestead entry, and (§§ 4-6) the Secretary was then to give notice of the charges which should be made per acre and the number of instalments, not exceeding ten, in which the charges should be paid; these charges to be determined with a view of returning to the reclamation fund the estimated costs of the construction of the project, . . . and all moneys received from the above sources shall be paid into the reclamation fund. . . . The Secretary of the Interior is hereby authorized and directed to use the reclamation funds for the operation and maintenance of all reservoirs and irrigation works constructed under the provisions of this act; provided that when the payments required by this act are made for the major portion of the lands irrigated from the waters of any of the works herein provided for, then the management and operation of such irrigation works shall pass to the owners of the lands irrigated thereby, to be maintained at their expense; . . . Provided that the title to and management and operation of the reservoirs and works necessary for their protection and operation shall remain in the government until otherwise provided by Congress.
In pursuance of this act, various works, including that of the Sunnyside Unit of the Yakima Project, were constructed and notice was given of the charges that would be made. At first they were stated in a lump sum, cost of...
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