In view of the special act of Mar. 4, 1929 (45 Stat. 1562), which specifically prescribes for the distribution of the net proceeds derived from the operation of the Shoshone power plant constructed by the United States at the Shoshone Dam, Wyoming, the general provision contained in subsection 1, section 4, of the act of Dec. 5, 1924 (43 Stat. 672), relative to the distribution of the accumulated net profits derived from the operation of project power plants has no application to that project. 53-427

The authority conferred upon the Secretary of the Interior by section 4 of the Act of Dec. 19, 1913 (38 Stat. 242), commonly called the Raker Act, requiring his approval of plans and specifications in connection with the proposed construction of reservoirs, dams, power plants, and kindred structures of permanent character in national parks in the State of California, does not include authority to attach to the procedural permit a condition that electric power developed at a dam site within the park shall, upon demand, be made available to the Government, at cost, for use in such park.

54-597

Congress, in the exercise of its duly delegated legislative powers under the Constitution, had full authority to prohibit access to the federally owned land embracing the Hetch Hetchey Project, by any individual or corporation, and full authority to dispose of such land or of the right to generate electric energy thereon under such conditions as it saw fit to impose. 55-321

The words "machinery and equipment

for the generation of electrical energy" in Article (9) (a) of the Contract for Lease of Power Privilege at Boulder Dam, dated Apr. 26, 1930, as amended, between

The provisions of the repayment contracts between the United States and the Flathead irrigation district, the Jocko Valley irrigation district, and the Mission irrigation district, which limit construction costs to specified amounts per acre but include power development costs as part of the construction costs of the Flathead irrigation project, are in harmony in this respect with the acts of Congress in accordance with which the project was built.

Neither the language of the Flathead project legislation nor its legislative or departmental history reveals any intention to segregate power construction costs from irrigation construction costs, so far as the repayment contract requirements of the legislation are concerned.

The approval of the repayment contracts by the Department constitutes a practical contemporaneous construction of the requirements of the legislation.

Power development has always been an integral part of the irrigation project system.

The term "construction costs," as employed in the Flathead project legislation, includes all construction costs.

To exclude power costs from construction costs would, in effect, make the former a deferred obligation, but the only such obligation specifically deferred is the excess cost of the Camas division of the project. The fact that the legislation provides that the power construction costs are to be liquidated first from the net power revenues is of no significance, since various other obligations were also to be liquidated from these revenues, including irrigation construction costs.

The lien provisions of the legislation apply to power as well as irrigation con

struction costs and are not contingent on lack of power revenue.

The directions in the legislation for the issuance of a public notice refer to "the total unpaid construction costs."

The maintenance of a separate bookkeeping account for power is also of no significance, since power revenues are set aside for certain purposes.

The fact that the power development is capable of continuous expansion only demonstrates the desirability of limiting the power costs.

Repayment contract requirements of irrigation legislation should be strictly construed to insure the reimbursement of the Government.

Since the cost limitations on the Flathead and Mission Valley divisions of the project have already been exceeded, no further construction may be undertaken without securing supplemental repayment contracts with these districts.

59-30

IV. PREFERENCE CUSTOMERS The Boulder Canyon Project Act and the "policy of the Federal Water Power Act" make the "public interest" the dominant consideration in the award of contracts and as a consequence thereof a State, as an applicant, does not have an absolute right to all or any part of Boulder Dam power, but it is within the discretion of the Secretary of the Interior to make allocation among various claimants where the public interest requires it. 53-1

The primary "public interest" in contracts for the reimbursement of the United States for its investment in the project required by subsection (b) of section 4 of the Boulder Canyon Project Act is in soundness of the contractor, and the rights of certain States or municipalities to be preferred in the award of contracts is subordinate to that public interest.

53-1

The preference conferred by subsection (c) of section 5 of the Boulder Canyon Project Act (45 Stat. 1057) is limited to the States named therein, but aside from that preference those States are merely on a parity with municipalities under the Federal Water Power Act, except as between a State and one of its own municipalities, in which event the State's right is paramount. 53-2

The preference of a State or municipality for allocation of power in conflict with a privately owned public utility under subsection (c) of section 5 of the Boulder Canyon Project Act (45 Stat. 1057) and in conformity with the policy expressed in the Federal Water Power Act (41 Stat. 1063) is a preference in consumptive right within the borders of the State or municipal corporation, but outside of their respective limits the State or municipality is merely on a parity with any other public utility company furnishing power in that territory. 53-2

The purpose of subsection (c) of section 5 of the Boulder Canyon Project Act (45 Stat. 1057) was not to bestow upon a State two separate preference rights, one under the exception clause of that subsection, and another under section 7 of the Federal Water Power Act (41 Stat. 1063) but merely to place a State in a preferred position, as opposed to a competing municipality, in view of the possible parity of these two classes of applicants under the latter act. 53-2

The Secretary of the Interior is not required to grant a preference to a municipality applying for power if the plan for utilization of power which it presents conflicts with a plan presented by another applicant which he regards as better adapted to conserve and utilize the power capable of development, and the determination of this feature is entirely within the discretion of that officer. 53-2

The time limit fixed by subsection (c) of section 5 of the Boulder Canyon Project Act (45 Stat. 1057) within which a State may contract under the preference accorded to it has reference to the special exception in that subsection which gives preference to a State over a competing municipality, but no time limit is placed upon the power of a State to contract where that preference is not invoked.

53-2

The Boulder Canyon Project Act (45 Stat. 1057) does not grant a preference to the city of Los Angeles over other municipalities in the award of power. 53-3

The fact that all of the stock of a corporation is owned by a State is not a sufficient reason for bringing the corporation within the preference right provision

of subsection (c) of section 5 of the Boulder Canyon Project Act (45 Stat. 1057). 53-3

The preference accorded a State is limited to power which the State proposes to use within its borders, whether the application be presented under section 7 of the Federal Water Power Act (41 Stat. 1063) or under subsection (c) of section 5 of the Boulder Canyon Project Act (45 Stat. 1057), and the Secretary of the Interior may incorporate in the allocation to the State a stipulation to that effect. 53-3

The proviso to subsection (c) of section 5 of the Boulder Canyon Project Act (45 Stat. 1057), which protects a State or political subdivision thereof from foreclosure of its right to file an application because of nonauthorization of or failure to market a bond issue, until the expiration of a reasonable time therefor, does not preclude the Secretary of the Interior from determining what is a reasonable time or of granting an application to another during the interval so long as the right of the preference claimant to contract is preserved. 53-3

The preference right accorded a State by subsection (c) of section 5 of the Boulder Canyon Project Act (45 Stat. 1057) is not assignable either before or after the execution of a contract by a State, but a contract obtained in exercise of the preference is assignable, subject, however, to all restrictions and conditions contained in the original contract, and without diminution of the State's liability to the United States and without waiver of the requirement of financial and legal capacity of the assignee. 53-3

V. PURCHASE OF FOR RESALE Electric energy produced by a power plant to be erected on the Hetch Hetchy site by the city and county of San Francisco may be legally sold by the municipality to a privately owned electric utility company only upon condition that such power will be consumed by the company and not resold or redistributed, since the Act of Congress granting the site, etc. Stat. 242), contains a prohibition against the grantees' selling or letting to any private corporation the right to sell or sublet the electric energy sold or given to it by said grantees. 54-316

(38

A sale by the grantee, the City and County of San Francisco, to a private utility corporation, of the electric energy developed under its grant, with a view to resale and distribution by said corporation to consumers of electricity, constitutes a violation of the Raker Act. 55-321

An act of Congress which granted to the City and County of San Francisco authority to generate and sell to municipalities and water and irrigation districts electric power produced on public lands of the United States, forbade the selling, assigning, or transferring of such electric power to "any private person, corporation, or association." The grantee entered into a contract with a private company for the distribution of the power so generated, which company has since distributed and sold electric current in San Francisco. Held, That although the contract entered into was stated to be one of agency or consignment, and not one of sale, and the language of consignment was employed, the contract, when judged by the substance of its terms, must be held to be one of sale, the disposition of the electric power being under conditions necessarily contemplating its resale to consumers. 55-321

II. PERSONS QUALIFIED TO PRACTICE United States deputy surveyors and United States mineral surveyors are persons holding an office or place of trust or profit under the Government of the United States within the contemplation of paragraph 8 of the rules and regulations prescribed by the Secretary of the Interior governing the recognition of agents, attorneys or other persons representing claimants before his department (46 L.D. 206). Overruled, insofar as in conflict (55 I.D. 216 (1935)). 53-347

Regulations of Mar. 24, 1933, amending regulations governing recognition of persons representing claimants before the Department and its bureaus (Order No. 615).

54-194

One who acts as local attorney for the Home Owners' Loan Corporation, created by section 4(a) of the act of June 13, 1933 (48 Stat. 129), not being "the head of a department or other officer or clerk in the employ of the United States", within the meaning of the act of Mar. 4, 1909 (35 Stat. 1109), is not barred, by reason of acting as such attorney, from admission to practice before a Federal department.

55-215

The position of local attorney for the Home Owners' Loan Corporation is a "place of trust or profit" under the Government of the United States, the corporation having been created specifically as "an instrumentality of the United States" by section 4 of the act of June 13, 1933 (48 Stat. 129). Accordingly, one occupying this position, although not barred from admission to practice before the Department of the Interior, is inhibited by section 8 of Department regulations of Sept. 27, 1917 (46 L.D. 206), from acting as agent or attorney for the claimant in any case against the United States. 55-215 Many cases before the Department of the Interior are not against the United States, as, for instance, an appearance for

Although a conciliation commissioner appointed by a court of bankruptcy is an officer of the United States and as such is prohibited from accepting compensation for services rendered in any proceeding in which the United States is directly or indirectly interested, he may nevertheless be admitted to practice before the Department of the Interior in any special instance in which he can make a proper showing that he will receive no compensation for representing any party before the Department of the Interior and the parties he intends to represent are so notified. 57-73

Since a conciliation commissioner appointed by a court of bankruptcy pursuant to statutory authority is an officer of the United States within the meaning of section 113 of the act of Mar. 4, 1909 (35 Stat. 1109) and, as such, is prohibited from accepting compensation for services rendered in relation to any proceeding in which the United States is directly or indirectly interested, he can derive no practical benefit from his enrollment as an attorney and it is therefore proper to refuse him admission. 57-73

Although a conciliation commissioner appointed by a court of bankruptcy is an officer of the United States and, as such, is prohibited by statute from receiving compensation for representing any party in a proceeding in which the United States is directly or indirectly interested and for that reason was refused admission to practice before the Department of the Interior, nevertheless he may become eligible for

admission to regular practice before the Department upon termination of his connection with his office of conciliation commissioner. 57-74

An appearance filed by an attorney-atlaw in a matter pending before the Department creates a presumption that he is authorized to represent the party for whom he purports to appear. 61-151

Where a party adversely affected by a decision of a manager of a district land office of the Bureau of Land Management authorizes a person, who is not an attorney, or that person's attorneys to represent him in taking an appeal from that decision, and the agent employs attorneys to take such an appeal to the Director of the Bureau of Land Management, the taking of an appeal to the Director by those attorneys is to be regarded as authorized by the party. 61-151

The Governor of Alaska has power under the act of June 6, 1900 (31 Stat. 321; 48 U.S.C. 61, 64), to grant reprieves for persons convicted of Territorial or Federal offenses, but his power is limited in either event to such time as the decision of the President is made known. The Governor of Alaska has no power to grant pardons 59-14 (37 Op. Atty. Gen. 528).

Although the President, by virtue of his office and constitutional powers, exercises general supervision over the departments and independent establishments which comprise the executive branch of the Government, he is not required to exercise his supervisory and coordinating responsibilities personally, but may delegate functions to the heads of the various departments or to other officials in the executive branch of the Government. 59-552

The President properly delegated to the Secretary of the Interior the President's functions with respect to coordinating the activities of the several departments and other agencies of the Government as they relate to oil and gas matters, and the President's powers and functions in connection with the administration of the Connally "Hot Oil" Act. 59-552

Regulations of Feb. 8, 1935, governing gifts of land and filing of applications for exchanges of privately owned and State lands under Section 8 of the Taylor Grazing Act (Cir. No. 1346). 55-192

Regulations of Aug. 28, 1934, to govern exchanges of lands in Apache, Navajo, and Coconino counties, Arizona (Cir. No. 1335). 55-362

Regulations of Sept. 3, 1936, concerning exchanges of privately owned lands under section 8, Taylor Grazing Act, as amended by section 3, act of June 26, 1936 (Cir. No. 1408). 55-613