shall not be made available to a single owner for service to more than 160 acres.

The owner of private land may also own a water right. Clearly a water right will not be sold, in the conventional sense, to such an

owner.

Sections 4 and 5 disclose a scheme by which all participants in a project share its cost. If a private landowner cannot be sold a waterright because he already owns one, he cannot be charged for it either and, since section 5 contains all the provisions of the Act for repayment, there is no way by which he can participate in the project.

Nothing in the 1902 Act or its legislative history suggests that private landowners with water rights could participate in a project, pay their share of its cost, but be exempt from acreage limitation.

In 1911, in the Warren Act, supra, Congress dealt directly with the situation where federal facilities may store or carry water owned by others. The use of federal facilities under the Warren Act is expressly conditioned on compliance with the excess land laws.

Section 3 of the 1912 Act provides that water shall not be "furnished under said [reclamation] acts nor a water right sold or recognized for such excess" over 160 acres. Here is manifested in the clearest manner possible that the ownership of a water right prior to the construction of a federal reclamation project would not entitle its owner to service from the federal project for more than 160 acres.

The 1914 Act, supra, extended the time for repayment under the 1902 Act and made other changes in the reclamation law. Repayment by private landowners was effected as before, by the making of a waterright application and the "sale" (in the sec. 5 sense) of a water right.

However, Section 12 of the 1914 Act provided that any owner of lands in excess of what should be determined to be sufficient to support a family could not be included in the project unless he agreed to sell his excess lands. Thus, as applied to the lands under the All-American Canal, the 1914 Act would require the landowners to agree to sell excess lands or not get any water through the Canal at all. When stated this way no distinction is possible between a landowner with and a landowner without a water right. Neither could get in the project without making the prescribed agreement.

The Act of May 15, 1922 (42 Stat. 541, 43 U.S.C. sec. 511), authorized joint liability contracts with districts in lieu of individual water-right applications. Section 46 of the Act of May 25, 1926, supra, made joint liability contracts mandatory for new projects. Such was the contract entered into with Imperial Irrigation District. By Section 46 the mechanism of repayment by "selling" water rights to private landowners disappeared and was replaced by an undertaking by the district to repay construction charges.

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The Project Act differed from section 46, which required a repayment contract before water was delivered to the district, by requiring, in section 4(b), the contract "before any money is appropriated." That this was the only change intended, and that section 46 was otherwise applicable, is clear from the section 4 (b) requirement that repayment is to be effected "in the manner provided by the reclamation law." "The manner provided by the reclamation law" on the effective date of the Project Act was section 46 of the 1926 Act. As already pointed out, section 46 required the application of the excess land laws in all cases where repayment contracts, such as the Imperial Irrigation District contract, were to be made.

In Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 (1958), the Court considered the validity of contracts of the United States with irrigation districts made pursuant to the act authorizing the Central Valley Project (Act of August 26, 1937, 50 Stat. 850, as amended by the Act of October 17, 1940, 54 Stat. 1199). The contracts were challenged as invalid because they contained acreage limitation provisions. The Court held the contracts to be valid and authorized by Congress. The only provisions in the authorizing legislation which invoke the reclamation law are the third proviso of Section 2 of the 1937 Act, which provides, in part, as follows:

* except as herein otherwise specifically provided, the provisions of the reclamation law, as amended, shall govern the repayment of expenditures and the construction, operation, and maintenance of the dams, canals, power plants, pumping plants, transmission lines, and incidental works deemed necessary to said entire project *

and section 2 of the 1940 Act, which adds authority to construct distribution systems "under the provisions of the Federal reclamation laws." The language in each instance is substantially the same as the language of the Boulder Canyon Project Act.

The Supreme Court in Ivanhoe declare that "*** the authority to impose the conditions of the contracts here comes from the power of Congress to condition the use of federal funds, works, and projects on compliance with reasonable requirements [i.e. compliance with the excess land laws] ***. [I]f the enforcement of those conditions impairs any compensable property rights, then recourse for just compensation is open in the courts." Ibid. at 291. In describing the effect of the excess land laws the Court said, "*** the excess acreage provision acts as a ceiling, imposed equally upon all participants, on the federal subsidy that is being bestowed." Ibid. at 297.

Legislative History

The plain terms of the Project Act dictate that the excess land laws apply to lands served by the All-American Canal, Imperial Dam and appurtenant structures. After a thorough examination of the history of the Project Act itself and of legislative consideration of the bills which preceded it, I have found no inference of congressional intent to exempt said lands from the excess land laws. As pointed out in Ivanhoe, **where a particular project has been exempted because of its peculiar circumstances, the Congress has always made such exemption by express enactment." Supra at 292.

The Boulder Canyon Project Act was the enactment of the last of a series of Swing-Johnson bills. The fourth, and final, Swing-Johnson bill was introduced in the House as H.R. 5773 on December 5, 1927, and in the Senate as S. 728 on the following day.10

Unlike its predecessors," the House version of the bill contained an express acreage limitation proviso covering private lands. The proviso was substantially identical with the excess land provision of section 46, Omnibus Adjustment Act of 1926.12

In contrast to the House bill, the Senate version of the fourth SwingJohnson measure, S. 728, included no specific provision on acreage limitation relative to private lands. A bill introduced by Senator Phipps of Colorado, S. 1274, contained language similar to the Section 46 excess land provision, and the Senate Committee on Irrigation

13

H.R. 6044, 66th Cong., 1st Sess. (1919); H.R. 11553, 66th Cong., 2d Sess. (1920); H.R. 11449, 67th Cong., 2d Sess. (1922); H.R. 2903 and S. 727, 68th Cong., 1st Sess. (1924); H.R. 6251, S. 1868, H.R. 9826, and S. 3331, 69th Cong., 1st Sess. (1926); H.R. 5773 and S. 728, 70th Cong., 1st Sess. (1927).

10 70th Cong., 1st Sess.

11 H.R. 11449, 67th Cong., 2d Sess. (1922); H.R. 2903 and S. 727, 68th Cong., 1st Sess. (1924); H.R. 6521, S. 1868. H.R. 9826, and S. 3331, 69th Cong., 1st Sess. (1926).

12 On February 5, 1926, Elwood Mead, Commissioner of Reclamation, testified during the hearings on H.R. 6251 and H.R. 9826 (third Swing-Johnson bill) before the House Committee on Irrigation and Reclamation that "old land," i.e., land already irrigated, “would be sold water under a Warren [Act] contract" and that the owners thereof would be allowed to occupy their then existing farm units. irrespective of the acreage involved. On the same occasion Congressman Swing affirmed that nothing in the third Swing-Johnson bill required owners of land in excess of 160 acres to sell that excess at a price set by the Secretary. Hearings on H.R. 6251 and H.R. 9826 Before the House Committee on Irrigation and Reclamation, 69th Cong., 1st Sess., pt. 1, at 32-33 (1926). These statements were made prior to the enactment of section 46 of the Act of May 25, 1926, and hence are not relevant to the interpretation of the Project Act finally enacted. Moreover, Dr. Mead's statement was based on an erroneous understanding of the then existing reclamation law. The All-American Canal project was not a project of the character considered in the Warren Act of 1911 (36 Stat. 925). Had it been, the terms of that Act would have precluded the delivery of water to more than 160 acres of private land in a single ownership. In addition, both Dr. Mead and Mr. Swing overlooked section 12 of the Reclamation Extension Act of 1914 (38 Stat. 689), which was a reclamation law of general applicability then in effect. Section 12 required that owners of private excess lands agree to dispose of them before they could participate in a project. Both H.R. 6251 and H.R. 9826 incorporated the reclamation law by reference.

13 Section 5(b) of S. 1274, 70th Cong., 1st Sess. (1928).

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and reclamation considered both S. 728 and S. 1274 in its hearings." The Phipps bill never emerged from the Committee, whereas the Swing-Johnson measure was favorably reported.15

According to the minority statements filed by Senator Ashurst of Arizona and appended to the Committee report, the Committee either failed to act upon or rejected an amendment presented by him which would have added an express acreage limitation provision to S. 728.16 No particular import can be ascribed to this incident related by Senator Ashurst. The record is devoid of any inference that a majority of the committee members, in failing to adopt the Ashurst amendment, favored an acreage limitation exemption for private lands. Even if Senator Ashurst's comments could be interpreted as an expression of his view that without specific incorporation the excess land laws would not apply, the construction placed on a bill by an unsuccessful opponent is not a reliable indicator of its meaning "An unsuccessful minority cannot put words into the mouths of the majority and thus, indirectly, amend a bill." Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 288 (1956). See also Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384 (1951).

During the consideration of the fourth Swing-Johnson bill, Senators Ashurst and Hayden conducted a filibuster. Senator Hayden offered many amendments including one similar to the excess land proviso of H.R. 5773.1 This amendment, like dozens of others presented and printed during the filibuster, never came to a vote. Discussion of hydroelectric power production at Boulder Dam and of the interstate apportionment of the waters of the Colorado River dominated the debates. The issue of acreage limitation was only one of many incidental points advanced by the opponents of S. 728. There is no indication that the failure of the Senate to act on the amendment evinced its rejection of the proposition that excess land provisions would be applicable to private lands in Imperial Valley.

The House passed H.R. 5773 on May 25, 1928.18 On December 5, 1928, Senator Johnson made a motion to substitute H.R. 5773 for S. 728 in such a way as to retain the bill number and enacting clause of H.R. 5773, on the one hand, and the text of S. 728, on the other. Referring to the fact that the House and Senate versions of the bill contained "like purposes" and "like designs," Senator Johnson urged the consoli

14 Hearings on S. 728 and S. 1274 Before the Senate Committee on Irrigation and Reclamation, 70th Cong., 1st Sess. (1928).

15 S. Rep. No. 592, 70th Cong., 1st Sess. (1928).

16 Id., part 2, at 26.

17 69 Cong. Rec. 7634–35 (1928).

18 69 Cong. Rec. 9990 (1928).

dation in order to further "orderly legislative procedure." The motion carried.19 The bill with amendments was passed on December 14, 1928.20

The debates contain no evidence that any members of the Senate viewed what had occurred as exempting private lands from the excess land laws. Under certain circumstances the rejection of a provision on the floor of either house of Congress can be referred to as an indication of legislative intent. In the instant case, however, the Senate did not reject the House bill. It did not purport to pass upon it. In fact, it could be argued that since the principal proponent had represented that the two bills had the same purpose and design, they were substantially the same, i.e., land limitations were included in each-which indeed was the case.

No better guideline exists for approaching the legislative material related above than that provided by Justice Rutledge in the case of Gemsco, Inc. v. Walling, 324 U.S. 244, 260 (1945):

The plain words and meaning of a statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.

The Boulder Canyon Project Act must be read in pari materia with the general body of reclamation law. The rules in such cases were stated by Mr. Justice Miller in Wilmot v. Mudge, 103 U.S. 217, 221 (1880), as follows:

First, that effect shall be given to all the words of a statute, where this is possible without a conflict; and Second, that, as regards statutes in pari materia of different dates, the last shall repeal the first only when there are express terms of repeal, or where the implication of repeal is a necessary one. When repeal by implication is relied on it must be impossible for both provisions under consideration to stand, because one necessarily destroys the other. If both can stand by any reasonable construction, that construction must be adopted. Excess land policy was the cornerstone of the reclamation law when the All-American Canal Project was authorized in 1928. "Derangement of a system thus rooted in tradition" is not to be inferred from enactments which do not purport to alter that system, "where inveterate usage forbids the implication." Mr. Justice Cardozo, in General Motors Acceptance Corporation v. United States, 286 U.S. 49, 61-62 (9th Cir. 1932).

So firmly established are the excess land provisions of the reclamation law that Congress suspends their operation only where extraordinary circumstances dictate.21 Where Congress has seen fit to waive

19 70 Cong. Rec. 67-68 (1928).

20 70 Cong. Rec. 603 (1928).

21 Ivanhoe, supra, at 292.