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ferred to in my discussion of your first question, which was submitted on December 3, 1928, and related to the House bill, concluded with the following language:

"Based on the foregoing and the shortage of power which will occur at low flow, the board is of the opinion that if the Boulder Canyon project is completed and put in operation, carrying as it does the costs of flood-protection works and the all-American canal, it will be impossible to meet operation, maintenance, interest, and a sufficient sinking fund to retire the cost of the project within a 50-year period. "4. It is obvious that the power which can be generated from Boulder Dam is a valuable resource. If the income from storage can be reasonably increased and the capital investment reduced by the cost of the all-American canal, together with a reduction for all or a part of the cost properly chargeable to flood protection, it would be possible to amortize the remaining cost with the income from power."

This report was reprinted in the Congressional Record (vol. 70, pp. 280-285) and reference was made in the debate to the above recommendation, as it related to flood control (Cong. Rec., vol. 70, pp. 71, 399, 521–522).

The change made in the first sentence of the amendment was thus explained by Senator Johnson (id., p. 520):

"The reason for that insertion, I assume, of sixty-two and one-half per cent. of the revenues is because in the bill [Section 4 (b), last paragraph] thirty-seven and one-half per cent. of what I may term the excess revenues, or what I think might be designated as profits, are allocated to the two States of Arizona and Nevada in equal shares; and I assume that the purpose of the amendment is, out of the remainder of this sixty-two and one-half per cent to pay, if it can be paid, the allocation of $25,000,000 for flood control."

The same explanation had been made by Senator Phipps (id., p. 473).

It is apparent that the so-called excess revenues, out of 6212 per cent of which alone was to come repayment during the period of amortization of any part of the $25,000,000 allocated to flood control, were the same excess revenues which under the last paragraph of section 4 (b) were to be paid as to 1834 per cent to the State of Arizona and as to

1834 per cent to the State of Nevada. Manifestly, it was not the intention of Congress that section 4 (b) should require the Secretary of the Interior to make provision by his contracts to insure any payments to those States during the fifty-year period. This was recognized in the debates on the bill. (Cong. Rec., vol. 69, pp. 7390-7391, 10502.) There is no greater reason to suppose that Congress intended that he should be required to make provision for repayment of the sums allocated to flood control. The "revenues in excess of the amount necessary to meet periodical payments" which during the fifty-year period of amortization were to be the sole source both of the payments to the States of Arizona and Nevada and of the repayment of the $25,000,000 allocated to flood control were by necessary implication excluded from the revenues for which the Secretary of the Interior was required to make provision under the first paragraph of section 4 (b).

It is my opinion, therefore, that the Secretary of the Interior is not required, in fixing the sale rates for power to be generated at Boulder Dam to make provision for the amortization within the fifty years of the $25,000,000 allocated by the Act to flood control.

III

Your third question is as follows:

"Must provision be made for payment out of the power proceeds, during the fifty year period of amortization of interest upon the principal of the $25,000,000 allocated to flood control. If so, should interest start to run from the first appropriation made from the General Treasury to the Colorado River dam fund?"

With respect to the matter of interest upon the principal of the $25,000,000 allocated to flood control, the Act is very ambiguous. I have had great difficulty in reaching a satisfactory conclusion as to what Congress intended in respect of this item. The Act is susceptible of any one of these interpretations:

First, that no interest is to be paid under any circumstances or out of any source of revenue on the $25,000,000 allocated to flood control, or

Second, that such interest must be paid and that it is payable annually during the fifty-year period of amortization, and that the power rates should be fixed at a high enough figure to pay such interest during the fifty-year period, or

Third, that it was the intention of Congress that interest should be paid on the principal of the amount allocated to flood control, but that such interest is not required to be paid absolutely during the fifty-year period and is only to be paid, as is the principal of the item, out of 622 per cent of excess earnings, if any, during the fifty-year period and out of the 622 per cent net earnings after the expiration of that period.

It does not seem reasonable to suppose that Congress intended to make the payment of interest on the $25,000,000 allocated to flood control an absolute charge during the fifty years when it left the payment of the principal to the chance that there might be excess earnings during that period. I am inclined to believe that Congress intended that interest should be ultimately paid on the $25,000,000 allocated to flood control from the same source as is provided for the payment of the principal, to-wit: out of 62% of the excess earnings during the fifty-year period and out of 621⁄2% of the net earnings thereafter.

The word "thereon " in section 4 (b) following the word "interest" in the phrase "all amounts advanced to the fund under subdivision (b) of section 2 for such works, together with interest thereon made reimbursable under this Act" apparently limits the requirement, with respect to interest, to interest on such principal sums as are embraced within the scope of the paragraph.

A construction of the Act as not absolutely requiring the fixing of rates high enough to cover the payment of interest during the fifty-year amortization period upon the $25,000,000 allocated to flood control is entirely consonant with the apparent purposes of Congress in adopting the amendment which made that allocation, namely, to discharge a governmental obligation to provide flood control, and to make the project more probably feasible by reducing the amount which would have to be amortized out of revenues obtained from power and water at the dam.

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It does not seem necessary to pass further upon tion of the ultimate payment of interest, as I am of the opinion that if such interest is ultimately payable, the Act does not require you to make provision for its payment out of power proceeds during the fifty-year period of amortization. Respectfully,

WILLIAM D. MITCHELL.

To the SECRETARY OF THE INTERIOR.

MILITARY STATUS OF WILLIAM C. SILLIMAN UNDER THE EMERGENCY OFFICERS' RETIREMENT ACT

William C. Silliman, who, while an officer of the Fourth Cavalry Regiment, Texas National Guard, was assigned to duty at the Central Officers' Training School at Camp Stanley, Texas, and received training there from September 25, 1918, to December 8, 1918, but who was never mustered into the military service of the United States, is not one of the "persons who have served as officers of the Army of the United States during the

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World War, other than as officers of the Regular Army within the meaning of that language as used in the Emergency Officers' Retirement Act (45 Stat. 735), and hence is not entitled to the benefits of that Act.

DEPARTMENT OF JUSTICE,

December 31, 1929.

SIR: I have the honor to comply with your request of August 8, 1929, for an opinion upon the question whether One William C. Silliman, if otherwise qualified, is entitled to retirement under the Emergency Officers' Retirement Act of May 24, 1928, 45 Stat. 735, by reason of the fact that while an officer of the Fourth Cavalry Regiment, Texas National Guard, he was assigned to duty and received training for a Certificate of proficiency at the Central Officers' Training School at Camp Stanley, Texas, from September 25, 1918, to December 8, 1918, inclusive. The Emergency Officers' Retirement Act, supra, provides:

"That all persons who have served as officers of the Army, Navy, or Marine Corps of the United States during the World War, other than as officers of the Regular Army, Navy, or Marine Corps who during such service have incurred physical disability in line of duty, and who have been, or may hereafter, within one year, be, rated in accord

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ance with law at not less than 30 per centum permanent disability by the United States Veterans' Bureau for disability resulting directly from such war service, shall, from date of receipt of application by the Director of the United States Veterans' Bureau, be placed upon, and thereafter continued on, separate retired lists, hereby created as part of the Army, Navy, and Marine Corps of the United States, to be known as the emergency officers' retired list of the Army, Navy, or Marine Corps of the United States, respectively, with the rank held by them when discharged from their commissioned service, and shall be entitled to the same privileges as are now or may hereafter be provided for by law or regulations for officers of the Regular Army, Navy, or Marine Corps who have been retired for physical disability incurred in line of duty, and shall be entitled to all hospitalization privileges and medical treatment as are now or may hereafter be authorized by the United States Veterans' Bureau, and shall receive from date of receipt of their application retired pay at the rate of 75 per centum of the pay to which they were entitled at the time of their discharge from their commissioned service, except pay under the Act of May 18, 1920: Provided, That all pay and allowances to which such persons or officers may be entitled under the provisions of this law shall be paid solely out of the military and naval compensation appropriation fund of the United States Veterans' Bureau, and shall be in lieu of all disability compensation benefits to such officers or persons provided in the World War Veterans' Act, 1924, and amendments thereto, except as otherwise authorized herein, and except as provided by the Act of December 18, 1922: Provided further, That all persons who have served as officers of the Army, Navy, or Marine Corps of the United States during the World War, other than as officers of the Regular Army, Navy, or Marine Corps, who during such service have incurred physical disability in line of duty, and who have heretofore or may hereafter be rated less than 30 per centum and more than 10 per centum permanent disability by the United States Veterans' Bureau, for disability resulting directly from such war service, shall, from date of receipt of application by the Director of the United States Veterans' Bureau, be placed upon, and thereafter continued on, the

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