Twin Falls Canal Co. v. Foote

• Citation: 192 F. 583
• Parties: TWIN FALLS CANAL CO., Limited, v. FOOTE et al.
• Decision Date: 23 October 1911
• Court: U.S. District Court — District of Idaho

192 F. 583

TWIN FALLS CANAL CO., Limited, v. FOOTE et al.

United States Circuit Court, D. Idaho, Southern Division.

October 23, 1911

A. M. Bowen and Cavanah & Blake, for plaintiff.

C. H Lingenfelter, U.S. Dist. Atty., and B. E. Stoutemyer, for defendant Foster.

DIETRICH District Judge.

By this action the plaintiff, the owner of a large canal system diverting water from a natural stream and making distribution thereof to its several stockholders for the irrigation of their farms, seeks an adjudication of the conflicting rights of itself and other claimants to the flow of Snake river, and prays an injunction restraining other users from interfering with its rights. Proceeding under the authority of Act Cong June 17, 1902, c. 1093, 32 Stat. 388 (U.S. Comp. St. Supp. 1909, p. 596), commonly known as the 'Reclamation Act,' the Secretary of the Interior has caused to be constructed, and is maintaining, a canal system diverting water from the Snake river at a point above the intake of the plaintiff's canal, and the defendant Charles N. Foster is the representative of the government in charge of this system, he having no other interest in the subject-matter of the litigation.

By section 643 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 521) it is provided that when any civil suit is commenced in a state court 'against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer on account of any act done under color of his office or of any such law or on account of any right, title or authority claimed by such officer or other person under any such law, ' such suit may at any time before the final hearing thereof be removed for trial into the Circuit Court of the United States upon petition of such defendant. Foster, having been made a party defendant by supplemental proceedings, promptly filed a petition pursuant to this provision of law for the removal of the cause to this court, and, an ex parte order having been made granting the petition, the plaintiff now moves to remand. The petition is in due form and the removal is conceded to have been properly made, provided the reclamation act is held to be a 'revenue law of the United States' within the meaning of the section referred to. The only question for consideration, therefore, is whether this act is a 'revenue law.'

Briefly abstracted, the act provides that, beginning with the fiscal year ending June 30, 1901, all moneys received from the sale of public lands in certain states, including the state of Idaho, with certain unimportant exceptions, shall be appropriated and set apart as a special fund to be known as the 'reclamation fund,' to be used for the construction and maintenance of irrigation works, for the storage, diversion, and development of waters for the reclamation of arid lands. Authority to administer the fund and to expend it under the law is vested in the Secretary of the Interior. He is empowered to direct surveys to be made, and, upon investigation and consideration, to take all the necessary steps for the construction of irrigating systems. And to that end he may withdraw public lands from entry under the general public land laws, and prescribe rules and regulations for their entry in accordance with the terms of the act. Upon the construction of such a system, he may give notice of the lands irrigable thereunder, and limit the area which any one person may enter. The act contemplates that the cost of constructing the canal system shall be ratably distributed to the lands irrigable thereunder, and persons entering such lands are, under the rules and regulations prescribed by the Secretary of the Interior, required to reimburse the government for its outlay in constructing the system; it being provided that the charges to entrymen shall be determined 'with a view of returning to the reclamation fund the estimated cost of construction of the project and shall be apportioned accordingly. ' Obviously, as indicated in its title, the reclamation of the arid lands of the United States by rendering to settlers temporary assistance in procuring water for the irrigation thereof was the controlling motive for its passage. It was recognized that in executing plans for the irrigation of much of the public arid land individual effort would be inadequate, and that the government with its unlimited credit could undertake and successfully carry to completion projects, which, because of their magnitude and difficulties, private enterprise would hesitate to undertake. The government was neither to gain nor to lose by the enterprise, for in theory the entire cost of any given project is to be reimbursed by those who enter irrigable lands thereunder. It is clear that, in so far as it is a feature at all, revenue is an incident only, and not the primary purpose of the act, and it therefore follows that the act does not fall within the terms of section 7 of article 1 of the Constitution of the United States, providing that 'all bills for raising revenue shall originate in the House of Representatives. ' 'Bills for raising revenue,' it is generally thought, are such as 'levy taxes in the strict sense of the word'; and the constitutional limitation 'has not been understood to extend to bills for other purposes, which may incidentally create revenue.' Story on the Constitution, Sec. 880; United States v. Norton, 91 U.S. 566, 23 L.Ed. 454; Twin City Bank v. Nebeker, 167 U.S. 196, 17 Sup.Ct. 766, 42 L.Ed. 134; Millard v. Roberts, 202 U.S. 429, 26 Sup.Ct. 674, 50 L.Ed. 1090.

Upon behalf of the defendant, it is conceded that the bill for the reclamation act could not properly be classified as a bill 'for raising revenue' within the meaning of the Constitution; but it is said the phrase, 'revenue law,' in the statutory sense, is not to be taken as the exact equivalent of the constitutional clause. But the reasons urged for drawing such a distinction, when analyzed, seem largely referable to the supposed desirability of a law conferring upon all officers of the national government the right to have certified to the federal courts all actions brought against them in the state court, a consideration that is more properly addressed to the legislative than to the judicial department of the government. It is conceded that section 643 does not extend its protection to all government officers, and we are therefore concerned with determining, not what may seem to be desirable, but what was the intention of Congress in enacting the law, and to what class or classes of officers it was intended to apply. It is, of course, possible to differentiate between a law 'for raising revenue' and a 'revenue law,' but the distinction is not entirely obvious, and the two phrases might very properly be used to convey the same meaning. Lexically and grammatically, the strain comes, not in assimilating, but in distinguishing them. As language is commonly and ordinarily understood, it would seem that, when a bill 'for raising revenue' is enacted into law, it becomes 'a revenue law,' and a 'revenue law' originates in a bill 'for raising revenue.' It was expressly so held by Judge McDonald in The Nashville, Fed. Cas. No. 10,023, decided in 1868. True, the contention of the defendant in this respect is not wholly without support in the decided cases, notably that of the United States v. James, Fed. Cas. No. 15,464. Upon the other hand, expressions from the highest authority seem to imply a different view. In United States v. Norton, 91 U.S. 566, 23 L.Ed. 454, the Supreme Court had under consideration the meaning, not of the constitutional limitation, but of the statutory phrase, 'revenue laws of the United States. ' Reference in the opinion is made to the Constitution apparently for the purpose only of throwing light upon the meaning of the statutory language, and, after adverting to the proceeds arising from the sale of public lands and of public securities and the receipts of the Patent Office and the Post Office Department, the court says:

'It is a matter of common knowledge that the appellative 'revenue laws' is never applied to the statutes involved in these classes of cases. The Constitution of the United States (article 1, Sec. 7) provides that 'all bills for raising revenue shall originate in the House of Representatives.' The construction of this limitation is practically well settled by the uniform action of Congress. According to that construction, it 'has been confined to bills to levy taxes in the strict sense of the words, and has not been understood to extend to bills for other purposes which incidentally create revenue.' Story on the Const. Sec. 880. ' Bills for raising revenue' when enacted into laws become revenue laws. Congress was a constitutional body sitting under the Constitution. It was, of course, familiar with the phrase 'bills for raising revenue,' as used in that instrument, and the construction which had been given to it.'

If there is not in this language an express ruling, there is at least an apparent intimation that the statutory phrase is to be taken as a substantial equivalent of the constitutional clause. In this case, it is true, the court was not construing section 643, but it did have under consideration the meaning of the identical language upon which the present case turns, although found in another section of the statutes. It has not been urged and I have been unable to discover that there is anything in the origin or history of section 643 suggestive of the expansive meaning for which the defendant contends, or indicative of an intention on the part of Congress to attach to the phrase, 'revenue laws,' any unusual...