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

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 lan is, 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. SWING, Mr. Chairman, if the gentleman will permit, I think the gentleman from Illinois [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.]

24414-584

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 is 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 shall permsnently 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

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

"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."

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.

dam. It simply limits it to the cost of the canal. In this particular case the Senate has allocated $25 million toward the cost of the dam. It is true that the $25 million must be paid back, but the payment may be postponed until the end of the period of amortization. I think that in view of the fact that this dam has to be built for flood-control purposes, and in view of such allocation, we should exempt those lands in Imperial Valley from the payment of any part of the cost of that dam.

Mr. KING. Then it is apparent that the residents of Imperial Valley will have the benefits of flood control, storage water, the certainty of getting an equated flow, and will be required to pay for nothing except the cost of the All-American Canal.

Mr. PITTMAN. That is the fact; but I think the circumstances warrant it.

Mr. KING. Does the Senator think there should be no distinction between those who have vested rights, who have already appropriated water in the Imperial Valley, and those who have no vested rights, and have never appropriated any water?

Mr. PITTMAN. No; I do not think we can have a successful reclamation project if we attempt to draw that distinction, because undoubtedly even those with the vested rights will have to pay a part of this cost if the Government is to be repaid * * *.

Although the language of the letter of Secretary Wilbur seems broad enough to include the Coachella Valley District lands, the letter was clearly intended only to apply to the Imperial Irrigation lands. It apparently assumes that all privately owned land in the district was under irrigation and had a vested water right. Nothing in the files indicates whether such is the factual situation, and there is strong indication that the Coachella Valley lands are to a very large degree as yet not irrigated.

Furthermore, an examination of the files reveals that the letter of the former Secretary was written at the request of counsel of the Imperial District who wanted a ruling on the application of the excessland provisions "provided, That such ruling would be that the 160acre limitation did not apply." Purposely, the letter of Secretary Wilbur never took the form of a formal decision. It was written solely for the purpose of giving partisan help to the Imperial Water District, as the delay of the final confirmation of the contract held up the construction of the All-American Canal. Besides, the time of the Hoover administration was near its close. In less than 10 days after the date of Secretary Wilbur's letter (February 24, 1933), President Roosevelt was inaugurated.

In summary, then, I reach the conclusion that in view of section 14. of the Boulder Canyon Project Act, which makes that act supplementary to the Federal reclamation law, the excess-land provisions contained therein are carried into operation with respect to the Coachella Valley water lands and should be incorporated in the contracts presently under consideration.