The opinion of your Solicitor deals with the claim of Joseph Micka, Jr., for damage to his potato crop as a result of a flood caused by a break in the canal of the Klamath project of the Bureau of Reclamation. The claimant contends:

"The reason the water broke through was that a large head of water, and too much to be turned down in the ditch, was permitted to run down the J-11 Lateral from the J Canal * * * *. The Government owns and operates both the J Canal and the J-11 Lateral and they and their agents, servants and employees permitted the gate leading from the J Canal to the J-11 Lateral to remain open so that the J-11 Lateral overflowed and washed out its banks on the east side of the Emma Mae Scott homestead which I was farming, and destroyed 17 acres of my potatoes in the amount as stated in my original affidavit, $1,443.75. In other words, the Government turned down out of the J Canal into the J-11 Lateral an excessive quantity and volume of water which the banks of the said lateral would not hold. The Government knew of the condition of the said J-11 Lateral on the east line of the Scott place, because it had broken there at least three times before, and it broke its banks on the dates mentioned in my original affidavit, June 18th and 19th, 1938, due to its weakened condition from the former breaks and improper repair."

On the other hand, the Government officers and employees in charge of the project say:

"The section of the J-11 Lateral where the break occurred is built of light soft soil, which is attractive to gophers and ground squirrels for winter quarters. Every spring the canal banks are spread with poison grain and many rodents are killed, but not all. The ditchrider patrols the canal every day and puddles in or reports any holes that are running water; nevertheless, it happens occasionally that a hole opens up and causes a break before it is observed. That is what happened in this case. My inspection of the canal and adjoining lands a day or two after the break did not reveal any indication of high water in the canal.

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* I will say that the lateral was not carried too high, as stated by Mr. Micka, as a check of Asst. Watermaster Roscoe Barkhurst's records show that on that date there were but 19 cubic feet per second in the J-11 Lateral, while the normal capacity of the lateral is 50 cubic feet a

second.

"The statement that this break occurred at the same place a previous break occurred a year ago, is in error as the two breaks were about 100 feet apart. The lateral is infested with squirrels but every effort is made to control them, in fact both banks of the lateral were torn up and rebuilt by a dragline in 1937 to destroy all possible squirrel holes.

"It is unfortunate this break occurred but I do not feel it was caused by any negligence of the Service.

"This lateral is infested with squirrels and on account of them is watched very carefully, and every effort is made to exterminate them. In 1937 the lateral was rebuilt to destroy squirrel holes, as on July 7, 1937, the lateral broke within 100 feet of this break and flooded the field but caused no damage.

"It is my assumption that a squirrel hole caused the break, which may have been aggravated by someone above not taking care of his irrigating water during the night."

Your Solicitor, after quoting the above contentions,

states:

"The facts presented in the record indicate, in my opinion, that the damage to the claimant's potato crop arose in the course of the regular operation of the canal. There is no showing of negligence on the part of the Government officers or employees."

The Acting Secretary's letter and the opinion of your Solicitor do not purport to give a statement of established facts, nor is an opinion requested upon any specific question, or questions, of law. It has long been held by my predecessors that the Attorney General cannot under

take to settle facts ex parte from papers submitted and then proceed to give an opinion thereon. 18 Op. A. G. 487; 28 id. 218. It has been the invariable rule to decline to give an opinion upon any question of law unless it is specifically formulated and accompanied by a statement of the facts involved. 12 Op. A. G. 206; 14 id. 367; 22 id. 342; 23 id. 92; 24 id. 102; 26 id. 378.

Your Solicitor concludes that "the claim should be paid under the act of May 10, 1939 (Public, No. 68, 76th Cong.)," [53 Stat. 685, 714] and the Acting Secretary's letter states that this "conclusion * * may be inconsistent with an opinion rendered by the Comptroller General the case of C. J. Mast (A. 45268, June 30, 1933)."

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In this connection it is to be noted that the act of May 10, 1939, supra, authorizes payment out of the reclamation fund "of damages caused to the owners of lands or other private property of any kind by reason of the operations of the United States, its officers or employees, in the survey, construction, operation, or maintenance of irrigation works." Similar provisions are to be found in annual appropriation acts of the Reclamation Service since 1915 (the first being in the act of March 3, 1915, c. 75, 38 Stat. 822, 859), and also in the act of February 20, 1929, c. 279, 45 Stat. 1252, relating to Indian irrigation projects. In settling and adjusting claims arising under the latter statutes, the Comptroller General has held that they do not impose liability upon the United States for remote causes, such as the acts of ferae naturae, over which the United States has no direct control; and that to create liability the damage must arise from direct action on the part of an officer or employee of the United States in the survey, construction, operation, or maintenance of irrigation works, and must be due to unavoidable causes in which the element of negligence does not appear. Comp. Gen. Dec. A-47614, April 17 and August 5, 1933 (unpublished), in the Sam Wade case; Comp. Gen. Dec. A-45268, June 30, 1933 (unpublished), in the C. J. Mast case. See also 4 Comp. Gen. 713.

The rulings of the Comptroller General in this respect appear to have been uniform for a number of years, and

under them private rights have been determined without any objection on the part of the Congress. Under the circumstances, the rulings should not be disturbed unless clearly wrong, United States v. Philbrick, 120 U. S. 52; Swendig v. Washington Co., 265 U. S. 322; 39 Op. A. G. 194; and I find no such reason for disturbing them.

Respectfully,

ROBERT H. JACKSON.

PROPOSED REORGANIZATION AFFECTING THE COPYRIGHT

OFFICE

The Copyright Office, while within the Library of Congress, is a separate and distinct office.

The Register of Copyrights must perform those duties charged upon him by law, is liable under his bond for their faithful performance, and cannot escape this responsibility by any delegation of authority. It is not intended, however, that he must perform all the details personally.

The PRESIDENT.

APRIL 19, 1940.

MY DEAR MR. PRESIDENT: I have the honor to comply with your request of March 4 for my opinion concerning the legality of a proposed reorganization affecting the Copyright Office as set forth in a letter addressed to you by the Librarian of Congress.

The Librarian's letter reads in part as follows:

"At the suggestion of the Bureau of the Budget and on the recommendation of the General Accounting Office, it is planned to segregate the functions of handling the receipt and disbursement of moneys from those of maintaining accounting records. To this end it is proposed to establish a central accounting unit responsible for the maintenance of accounts covering all phases of the Library's fiscal operations, including budgetary control, and to expand the responsibilities of the Disbursing Officer of the Library to include the handling of all receipts as well as disbursements of the various units of the Library."

The Copyright Office, while within the Library of Congress, is a separate and distinct office, supported by separate

appropriations. The Register of Copyrights is specifically charged by law with the performance of certain duties, including the handling of copyright fees and the making of statements and reports in connection therewith, and is required to give a bond to the United States in the sum of $20,000 for the faithful discharge of his duties. (U. S. C., title 17, secs. 47 et seq.) The Disbursing Officer of the Library of Congress is provided for under another statute and is required to give bond to the United States in the sum of $30,000 for the faithful discharge of his duties. (U. S. C., title 2, sec. 142a.)

The Treasury Department and the Bureau of the Budget, recognizing the legal impediments to attainment of a result apparently regarded as administratively desirable, have suggested that something might be accomplished through delegation of authority by the Register of Copyrights. The Comptroller General states in response to a request for his views "that the fiscal functions and duties of the two offices may not be consolidated in the absence of specific authority of law," but that "there appears no objection to the consolidation of the administrative accounting records."

I see no escape from the conclusion that the Register of Copyrights must perform those duties charged upon him by law, that he is liable under his bond for their faithful performance, and that he cannot escape this responsibility by any delegation of authority. Of course, it is not intended that he must perform all the details personally and it may be therefore that some of the results contemplated by the Librarian can be accomplished. So far as concerns the statements and reports, for example, it would be legally unobjectionable for the Register of Copyrights to adopt and approve statements and reports prepared for him in the proposed central accounting unit-assuming that the matter can be so handled by detail of employees or otherwise as to avoid unauthorized use of Library funds for Copyright Office purposes.

Respectfully,

ROBERT H. JACKSON.