Baker v. Swigart

• Decision Date: 07 October 1912
• Docket Number: 2,125.
• Parties: BAKER v. SWIGART et al.
• Court: U.S. Court of Appeals — Ninth Circuit

199 F. 865

BAKER v. SWIGART et al.

No. 2,125.

United States Court of Appeals, Ninth Circuit.

October 7, 1912

W. T Dovell and Hughes, McMicken, Dovell & Ramsey, all of Seattle Wash., for appellant.

Oscar Cain, U.S. Atty., and E. C. Macdonald, Asst. U.S. Atty., both of Spokane, Wash., and E. W. Burr, Sp. Asst. Atty. Gen., of North Yakima, Wash., for appellees.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS Circuit Judge.

This appeal is from a decree entered after a hearing upon bill and answer. In his amended bill the complainant alleged that being the owner of certain lands in Yakima county, state of Washington, he made application for a water right under the Sunnyside Unit of the Yakima Project, the same being a project of the United States Reclamation Service, under the provisions of the act of Congress commonly known as the 'Reclamation Act,' approved June 17, 1902. The bill alleged a compliance by the complainant with all of the requirements of the act, and an acceptance of his application by the Secretary of the Interior, thus constituting between the United States and himself a contract under its provisions, whereby the government was to furnish, and he was to receive, out of a ditch called the 'Sunnyside Ditch,' three acre feet of water per acre for his tract of land, paying therefor at the rate of $52 per acre in 10 annual installments, as provided in the application. The bill further alleged that thereupon, and in reliance upon the contract, the complainant cultivated his land, and that there was furnished him, out of the ditch and the laterals connected therewith, water to irrigate the same, so that at the time of the filing of the bill the complainant had upon his tract a growing crop of alfalfa; that such water was and is necessary for the cultivation of his land and the maturing of his crops, and that there was and is no other source than the Sunnyside Ditch from which to secure water; that in the midst of the irrigating season, to wit, about the month of June, in the year 1911, the defendants to the bill, who are the appellees here, claiming to act as officers of the Reclamation Service of the United States, wrongfully and without warrant of law made an assessment against the complainant to the extent of 95 cents per acre for the use of the water, and demanded payment thereof; that the complainant refused to pay the charge so assessed, and thereupon the defendants, claiming to act as officers of the Reclamation Service, wrongfully and without warrant of law shut off the water from the complainant's land, and threatened to continue to refuse to supply any water therefor, unless the complainant should pay upon demand charges from time to time assessed, in the manner above indicated, against the land of the complainant, as a pretended charge for the maintenance of the said ditch; that the charge was arbitrarily fixed, without authority of law, and without regard to the actual cost of maintaining the ditch, and that the defendants threatened to collect the charge so assessed, and, if the same was not paid upon demand, to refuse the complainant water from the ditch for use upon his land.

The defendants answered the amended bill, and pleaded, among other things, in justification of the allegations of the amended bill in respect to the arbitrary assessment of 95 cents an acre and the coercive attempt to collect the same, as follows:

'For answer unto paragraph VII of the amended bill, defendants say that the Secretary of the Interior on November 18, 1908, fixed a charge for the operation and maintenance under said Sunnyside Unit for the year 1909, and until further notice, at ninety-five (95) cents per acre per annum, which said order has not since been abrogated, modified, or changed, and is now in full force and effect, and the defendant (plaintiff) has at all times heretofore paid such operation and maintenance fee as required by said order of the Secretary of the Interior.'

The sole point presented for decision is whether the act of Congress of June 17, 1902 (32 Stat. 389), requires the cost of operation and maintenance of the ditch in question to be paid by the water users prior to the time when the payments required by the act shall have been made for the major portion of the lands irrigated from the waters of the particular works in question. The first thing to do in such a case is to see just what the lawmaking power has enacted. If the provisions of the statute are plain and unambiguous, the courts must accept the law as there declared; otherwise, they would usurp the function of the legislative department of the government. Of course, if the provisions of the statute in question be uncertain, conflicting, or ambiguous, they become the proper subject for construction, which is a function of the court, in which event, and in aid thereof, resort may be had to any construction put upon it by any subsequent act of the same legislative body, if such there be, and to the construction placed thereon by that department of the government charged with the execution of the law, and, in order that the court may be enlightened in its effort rightly to construe the language employed in the statute, reference may also be had to the legislative debates during the pendency of the enactment. These observations are so well supported by the authorities as to make extended reference to them unnecessary. We therefore cite only, among the many to that effect, Houghton v. Payne, 194 U.S. 99, 24 Sup.Ct. 590, 48 L.Ed. 888; Fairbank v. United States, 181 U.S. 310, 21 Sup.Ct. 648, 45 L.Ed. 862; Hamilton v. Rathbone, 175 U.S. 421, 20 Sup.Ct. 155, 44 L.Ed. 219; United States v. Goldenberg, 168 U.S. 102, 18 Sup.Ct. 3, 42 L.Ed. 394; Lake County v. Rollins, 130 U.S. 670, 9 Sup.Ct. 651, 32 L.Ed. 1060; United States v. Tanner, 147 U.S. 661, 13 Sup.Ct. 436, 37 L.Ed. 321; United States v. Alger, 152 U.S. 384, 14 Sup.Ct. 635, 38 L.Ed. 488; Webster v. Luther, 163 U.S. 331, 16 Sup.Ct. 963, 41 L.Ed. 179; Bate Refrigerating Company v. Sulzberger, 157 U.S. 1, 15 Sup.Ct. 508, 39 L.Ed. 601; St. Paul, etc., Railway Company v. Phelps, 137 U.S. 528, 11 Sup.Ct. 168, 34 L.Ed. 767.

Looking at this statute, it is seen that by its first section it is provided that all moneys received from the sale and disposal of public lands in certain named states and territories (Washington among them), and with certain exceptions not important to be mentioned, shall be and are--

'reserved, set aside, and appropriated as a special fund in the treasury to be known as the 'Reclamation Fund' to be used in the examination and survey for and the construction and maintenance of irrigation works, for the storage, diversion and development of waters for the reclamation of arid and semi-arid lands in the said states and territories, and for the payment of all other expenditures provided for in this act; provided,' etc.

By the second section of the act the Secretary of the Interior was authorized and directed to make examinations and surveys for, and to locate and construct, as therein provided, irrigation works for the storage, diversion, and development of waters, including artesian wells, and to report to Congress at the beginning of each regular session the results of such examination and surveys, and other matters not here necessary to state. By the third section the Secretary of the Interior was, among other things, authorized to determine whether or not the particular irrigation project is practicable and advisable; and the fourth, fifth, sixth, and tenth sections of the act are as follows:

'Sec. 4. That upon the determination by the Secretary of the Interior that any irrigation project is practicable, he may cause to be let contracts for the construction of the same, in such portions or sections as it may be practicable to construct and complete as parts of the whole project, providing the necessary funds for such portions or sections are available in the reclamation fund, and thereupon he shall give public notice of the lands irrigable under such project, and limit of area per entry, which limit shall represent the acreage which, in the opinion of the Secretary, may be reasonably required for the support of a family upon the lands in question; also of the charges which shall be made per acre upon the said entries, and upon lands in private ownership which may be irrigated by the waters of the said irrigation project, and the number of annual installments, not exceeding ten, in which such charges shall be paid and the time when such payments shall commence. The said charges shall be determined with a view of returning to the reclamation fund the estimated cost of construction of the project, and shall be apportioned equitably: Provided, that in all construction work eight hours shall constitute a day's work, and no Mongolian labor shall be employed thereon.

'Sec. 5. That the entryman upon lands to be irrigated by such works shall, in addition to compliance with the homestead laws, reclaim at least one-half of the total irrigable area of his entry for agricultural purposes, and before receiving patent for the lands covered by his entry shall pay to the government the charges apportioned against such tract, as provided in section four. 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, and no such sale shall be made to any landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments therefor are made. The annual installments shall be paid to the receiver of the local land office of the district in which the land is situated,

...