THE SALLIE. (District Court, E. D. Pennsylvania. February 8, 1909.) No. 56. SEAMEN (§ 27*) - EMPLOYÉS ON DERRICK HOIST-LIEN FOR WAGES-"VESSEL." A derrick hoist held to be a vessel subject to the jurisdiction of a court of admiralty, and against which the engineer and general utility man employed thereon by the owner were entitled to a seaman's lien for wages. [Ed. Note.-For other cases, see Seamen, Cent. Dig. § 163; Dec. Dig. § 27.* For other definitions, see Words and Phrases, vol. 8, pp. 7297-7301.] In Admiralty. On final hearing. A. Frank Staley, for libelants. J. B. MCPHERSON, District Judge. This is a libel for wages, upon which a good deal of testimony has been taken. I see no occasion to discuss the evidence, however, but shall only state briefly my conclusions: 1. The derrick hoist Sallie is a vessel, subject to the jurisdiction of the district court in admiralty. 2. Each of the libelants was employed by the owner and master of the vessel; Weikel was to receive $15 per week, and Vincent was to receive 25 cents per hour, but not to exceed $10 per week. 3. The services rendered were maritime in their nature, entitling the libelants to a lien on the vessel, Weikel being in charge of the engine that operated the derrick, and Vincent being a guy tender and general utility man. 4. The libelants were engaged in their respective employments from September 21 to November 24, 1908, without any interval that need be noticed. 5. From. November 24th to December 14th, when the vessel was taken into the marshal's custody, she was in charge of the libelants, who continued to perform the same services, except such as were necessary to the operation of the derrick. 6. The master did not direct the vessel to be laid up for the winter, nor did he discharge the libelants, and they remained on her from November 24th to December 14th, awaiting further instructions and acting under their respective contracts of employment. 7. The evidence is not sufficient to justify the credit of $15 that is asked for by the claimant. 8. There is due to John A. Weikel the sum of $153.25, with interest from December 14, 1908, and to William Vincent the sum of $96.09, with interest from the same date. Decrees for these amounts respectively may be entered, with costs of suit. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes UNITED STATES v. HANSON. (Circuit Court of Appeals, Ninth Circuit. February 1, 1909.) No. 1,632. 1. WATERS AND WATER COURSES (§ 222*) - CONSTITUTIONAL LAW (§ 62*) — RECLAMATION ACT-DELEGATION OF LEGISLATIVE POWER. The reclamation act of June 17, 1902, с. 1093, 32 Stat. 388 (U. S. Comp. St. Supp. 1907, p. 511), providing for the irrigation by the United States of arid public lands, is within the power of Congress as to lands within the states as well as territories, under Const. art. 4, § 3, giving it power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," and is not in violation of the Constitution on the ground that it authorizes the expenditure of public money without an appropriation, since it is in itself an appropriation of the proceeds of land sold, nor as delegating legislative authority to the Secretary of the Interior. [Ed. Note. For other cases, see Waters and Water Courses, Dec. Dig. §222; Constitutional Law, Cent. Dig. § 96; Dec. Dig. § 62.*] 2 PUBLIC LANDS (§ 47*) - RECLAMATION ACT-WITHDRAWAL OF LANDS FOR PURPOSES OF ACT. The reclamation act of June 17, 1902, с. 1093, § 3, 32 Stat. 388 (U. S. Comp. St. Supp. 1907, p. 513), directs the Secretary of the Interior to "withdraw from public entry the lands required for any irrigation works contemplated under the provisions of this act," and authorizes him "to withdraw from entry, except under the homestead laws, any public lands believed to be susceptible of irrigation from said works." Held, that two classes of withdrawals were thereby provided for, and that the exception of homestead entry from the second had no application to the first; withdrawals and reservations thereunder being, from the necessity of the case, absolute. [Ed. Note. For other cases, see Public Lands, Cent. Dig. § 133; Dec. Dig. § 47.* Rights acquired by homestead settlements and entries, see note to McCune v. Essig, 59 C. C. A. 434.] 8. PUBLIC LANDS (§ 131*)-OCCUPANCY OF UNSURVEYED LANDS-RIGHTS OF OC CUPANT. The mere occupation of unsarveyed public land, although with the bona fide intention of acquiring title thereto under the homestead law when it shall be surveyed, gives the settler no rights as against the United States, and Congress may at any time before the initiation of homestead rights reserve the land for any public purpose. [Ed. Note.-For other cases, see Public Lands, Cent. Dig. § 347; Dec. Dig. § 131.*] 4 PUBLIC LANDS (§ 132*) - WITHDRAWAL UNDER RECLAMATION ACT-RIGHTS OF SETTLER. The reclamation act of June 17, 1902, с. 1093, 32 Stat. 388 (U. S. Comp. St. Supp. 1907, p. 511), contains no provision for the recognition or protection of any right of a settler on unsurveyed public lands which may be withdrawn and reserved thereunder for use in the construction of irrigation works, nor is there any such provision in Act June 27, 1906, с. 3559, 34 Stat. 519 (U. S. Comp. St. Supp. 1907, p. 519), or other statute of the United States, and such a settler has no right which he can oppose to the taking of the land for such purpose. [Ed. Note.-For other cases, see Public Lands, Cent. Dig. § 348; Dec. Dig. § 132.*] *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 167 F.-56 In Error to the District Court of the United States for the Southern Division of the Eastern District of Washington. On December 31, 1906, the United States commenced an action of ejectment against the defendant in error to recover the possession of a one-half section of government land in Klickitas county, state of Washington, alleging in the complaint that in October, 1905, the defendant in error, without right or title, had entered into the possession of said premises, which prior to that time had been withdrawn from entry, location, or settlement of any kind or character. The defendant in error answered, alleging that on April 29, 1891, the land in controversy was unsurveyed public land of the United States, and that on that date he took possession of the same with intent to file a homestead thereon under the laws of the United States, and that he has continued to reside thereon, and made his home thereon from that date until the present time, at all times intending to prove up on said land as soon as the same was surveyed and open to entry; that the land has not yet been surveyed; that the defendant in error has cleared about 10 acres thereof, and has from 11⁄2 to 2 acres under fence. The answer also alleged that the action is unauthorized by any law of the United States; that its purpose is to obtain possession of the land in controversy with a view of using it for the reclamation service of the United States under the act of Congress of June 17, 1902, с. 1093, 32 Stat. 388 (U. S. Comp. St. Supp. 1907, p. 511); and that by virtue of that statute the Secretary of the Interior was authorized to acquire by purchase, or by condemnation under judicial process, any rights or property necessary for the carrying out of said act. To this answer the plaintiff in error demurred. The demurrer was overruled, the court holding that, notwithstanding that the land was unsurveyed and not open to homestead entry, and notwithstanding that it was withdrawn for forest reservation purposes on September 8, 1902, and for reclamation purposes on September 13, 1904, the settlement of the defendant in error thereon for homestead purposes gave him a prior right thereto, and that the government could only obtain the land for reclamation purposes by condemnation. The plaintiff in error replied, denying the qualifications of the defendant in error to enter said land as a homestead, and denying the bona fides of his alleged settlement. A trial was had before a jury, and at the conclusion thereof the court, upon the motion of the defendant in error, instructed the jury to return a verdict in his favor. Section 3 of the act of June 17, 1902, 32 Stat. 388 provides as follows: "That the Secretary of the Interior shall, before giving the public notice provided for in section four of this act, withdraw from public entry the lands required for any irrigation works contemplated under the provisions of this act, and shall restore to public entry any of the lands so withdrawn when, in his judgment, such lands are not required for the purposes of this act; and the Secretary of the Interior is hereby authorized, at or immediately prior to the time of beginning the surveys for any contemplated irrigation works, to withdraw from entry, except under the homestead laws, any public lands believed to be susceptible of irrigation from said works: Provided, that all lands entered and entries made under the homestead laws within areas so withdrawn during such withdrawal shall be subject to all the provisions, limitations, charges, terms, and conditions of this act; that said surveys shall be prosecuted diligently to completion, and upon the completion thereof, and of the necessary maps, plans and estimates of cost, the Secretary of the Interior shall determine whether or not said project is practicable and advisable, and if determined to be impracticable or unadvisable he shall thereupon restore said lands to entry; that public lands which it is proposed to irrigate by means of any contemplated works shall be subject to entry only under the provisions of the homestead laws in tracts of not less than forty nor more than one hundred and sixty acres, and shall be subject to the limitations, charges, terms, and conditions herein provided: Provided, that the commutation provisions of the homestead laws shall not apply to entries made under this act." A. G. Avery, U. S. Atty. and J. B. Lindsley, Asst. U. S. Atty. for plaintiff in error. Henry J. Snively, for defendant in error. Before GILBERT, ROSS, and MORROW, Circuit Judges. GILBERT, Circuit Judge (after stating the facts as above). The defendant in error raises in this court for the first time the question of the constitutionality of the reclamation act on the grounds: First. That the work to be done and the expenditures to be made under it are not public and governmental in character, and are not within the limited powers belonging to the federal government. Second. Conceding that the government has the power to pass such an act affecting public lands in a territory, it has not such power as to lands within the states or in any localities where there are no government lands; therefore an act which essays to do both is void because it is impossible to segregate the valid from the invalid portion thereof. Third. That it authorizes the expenditure of the public moneys without an appropriation by Congress. Fourth. That it delegates legislative authority to the Secretary of the Interior, and authorizes him to determine what and where irrigation systems shall be built and maintained, and what shall be expended thereon. The Constitution gives to Congress the "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." In United States v. Gratiot, 14 Pet. 526, 10 L. Ed. 573, it was said that Congress has the same power over the public lands as over any other property belonging to the United States, "and this power has been vested in Congress without limitation." In Gibson v. Chouteau, 13 Wall. 92, 20 L. Ed. 534, Mr. Justice Field, referring to the constitutional provision above quoted, said: "That power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property or any part of it, and to designate the persons to whom the transfer shall be made." In pursuance of that power, Congress passed the reclamation act to make marketable and habitable large areas of desert land within the public domain, which lands are valueless and uninhabitable unless reclaimed by irrigation, and the irrigation whereof is impracticable except upon expenditure of large sums of money in the construction of a system of reservoirs and distributing canals. All previous efforts of the government to make these arid lands available for settlement had resulted in failure. By the desert land act of March 3, 1875, с. 160, 18 Stat. (vol. 3) 497, Congress had made provision for their use by individual settlers, and on March 3, 1877 (Act March 3, 1877, с. 107, 19 Stat. 377 [U. S. Comp. St. 1901, p. 1548]), had enacted further legislation to facilitate the reclamation of such lands by private entrymen, and in 1894 (Act Aug. 18, 1894, c. 301, § 4, 28 Stat. 422, [U. S. Comp. St. 1901, p. 1554]), to provide for the irrigation of the arid public lands, had passed the Carey act, by which it proposed to donate to the states in which such lands were located so much thereof not exceeding 1,000,000 acres in each state, as the state would cause to be reclaimed. These efforts having failed to accomplish the desired end, the reclamation act was passed. Congress, being the owner of the lands and vested with unlimited authority over the same, as it has been held by numerous decisions of the Supreme Court, had unquestionably the right to expend money thereon for their improvement. It has always exercised the right to expend money in causing surveys of the public lands to be made, and in providing for the protection of the public lands. Nor do we discover any ground for holding that its power over the public lands within a state stands upon any different basis from that of its power over public lands in a territory. Although the government on admitting a state into the Union relinquishes its control of the disposition of the waters of the state, except in so far as the regulation of commerce is concerned, it relinquishes none of its rights over the public lands included within the territorial limits of the state. The government is still sovereign over such lands, and, in the nature of things, so long as it does not interfere with state legislation over waters of the state, it must have the same power to improve, protect, and offer for settlement or sale the public lands within a territory. The power of Congress to govern the territories has nothing to do with this power over the public lands. In Camfield v. United States, 167 U. S. 519, 17 Sup. Ct. 867, 42 L. Ed. 260, the court said: "While we do not undertake to say that Congress has the unlimited power to legislate against nuisances within a state which it would have within a territory, we do not think the admission of a territory as a state deprives it of the power of legislating for the protection of the public lands, though it may thereby involve the exercise of what is ordinarily known as the police power, so long as such power is directed solely to its own protection." The defendant in error quotes the language of the opinion in Kansas v. Colorado, 206 U. S. 91, 27 Sup. Ct. 665, 51 L. Ed. 956, in which it was said: "We have within our borders extensive tracts of arid land, which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the national government; but if no such power has been granted, none can be exercised." But it is clear from other expressions in the opinion that the language so quoted had reference solely to the question of the power of Congress to interfere with the state control over the flow of waters within its limits, which control, subject to the power of Congress to regulate commerce, is vested wholly in the state. Elsewhere in the opinion it was said: "As to those lands within the limits of the states, at least of the Western states, the national government is the most considerable owner, and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation." The disappearing point of the power of Congress to reclaim arid public lands within a state is thus placed at the line where such legislation interferes with state legislation over the subject of reclamation. No such interference is suggested in the present case. Nor does the act violate the Constitution in that it authorizes the expenditure of public moneys without an appropriation. The act itself is the appropriation. It provides that the proceeds of the sale of public lands "are hereby reserved, set aside and appropriated as a special fund in the treasury to be known as the 'Reclamation Fund." It |