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giving this sense: The Congress shall have the power to lay and collect taxes, duties, imposts, excises, in order to pay the debts, and to provide for the common defense and general welfare of the United States. (U. S. v. Boyer, 85 F. 425, 432; also Mr. Justice Story on the Constitution, secs. 907, 908.)

Inasmuch as Congress has the power to lay and collect taxes in order to provide for the general welfare, it must logically follow that Congress has also the coincident and lesser authority to effect the appropriation of such taxes collected, for the general welfare. It is a maxim of law that the lesser power is always included in the greater; this being true, the right must exist to disburse that which has been collected. In other words, the right to appropriate what is collected is included in the right to collect. What an inconsistent situation we would have in our governmental operations if Congress were not empowered to spend or appropriate what it collected. The one power necessarily is incidental to and inseparable from the other.

In a message to Congress in 1822, President Monroe said concerning the right to appropriation under this very constitutional provision:

“The right of appropriation is from its nature secondary to the right of raising money, and it was proper to place it in the same grant and same clause with that right.

It is contended on the one side that as the National Government is a government of limited power it has no right to expend money except in the performance of acts authorized by other specific grants according to a strict construction of their powers; that this grant in neither of its branches gives to Congress discretionary power of any kind, but it is a mere instrument in its hands to carry into effect the powers contained in the other grants. The grant consists, as heretofore observed, of a twofold power--the first to raise, the second to appropriate, the public money, and the terms in both instances are general and unqualified. Each branch was obviously drawn with a view to the other, and the import of each tends to illustrate that of the other. The grant to raise money gives the power over every subject from which revenue may be drawn. In the discharge of the powers contained in any of these grants there is no other check than that which is found in the great principles of our system, namely, the responsibility of the Representative to his constituents.

If we look to the second branch of the power, that which authorizes the appropriation of money thus raised, we find that it is not less general and unqualified than the power to raise it. More comprehensive terms than 'to pay the debts and provide for the common defense and general welfare' could not have been used. So intimately connected with and dependent on each other are these two branches of power that had either been limited, the limitation would have had like effect upon the other. Had the power to raise money been conditioned or restricted to special purpose, the appropriation must have corresponded with it, for none but the money raised could be appropriated, nor could it be appropriated to other purposes than those which were permitted.

On the other hand, if the right of appropriation had been restricted to certain purposes, it would have been useless and improper to raise more than would be adequate those purposes.

It may fairly be inferred that those restraints and checks have been carefully and intentionally avoided. The power in each branch is alike broad and unqualified, and each is drawn with peculiar fitness to the other, the latter requiring terms of great extent and force to accommodate the former which have been adopted and both placed in the same clause and sentence. Had it been intended that Congress should be restricted in the appropriation of public money, to such expenditures as were authorized by a rigid construction of the other specific grant, how easy would it have been to have provided for it by declaration to that effect. The omission of such declaration is therefore an additional proof that it was not intended that the grant should be so construed.

Have Congress a right to raise and appropriate money to any purpose according to their own will and pleasure? They certainly have not. The Government of the United States is a limited government instituted for great national purposes and for those only. Good roads and canals will promote many very important national purposes. They will by being properly directed to these objects enhance the value of our vacant lands, a treasure of vast resource to this Nation. To the appropriation of the public money to improvements having these objects in view and carried to a certain extent I do not see any well founded constitutional objection. The right of appropriation is nothing more than a right to apply the public money to this or that purpose. The substance of what has been urged on this subject may be expressed in a few words. My idea is that Congress have an unlimited power to raise money, and that in its appropriation they have the discretionary power restricted only by the duty to appropriate it

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to purposes of common defense, and of general, not local, national, not state, benefit." (Willoughby on the Constitution, vol. 1, 598-592.)

It is incontestable that the assistance to the drainage organizations contemplated by Senate bill 4123, now under discussion, concerns the general welfare of the people, and is within the purview of the general welfare clause.

“Even in arid and semiarid States, drainage is an essential part of reclamation. If water is permitted on land without any system of drainage, large areas become useless. Reclamation in the West means applying water to land. It also means taking water off lands after it has served its purpose. Reclamation in other parts of the country means taking the water off the lands so that they can be utilized for cultivation."

As a matter of public welfare, there is every reason under the Constitution for extending the policy of reclamation to other sections of the country, as there was for inaugurating it for the benefit of the arid States. Congress has recognized that reclamation should be national, and in 1919 appropriated $100,000 for investigation of lands outside the then existing reclamation projects in other sections of the country. In 1924 Congress authorized an appropriation of $100,000 to obtain information as to how swamp lands might be best developed, and valuable information concerning every State in the Union has been accumulated. The movement throughout the South for the conservation of the soil, and the reclamation of swamp lands, is very strong.

It is submitted that drainage is as strongly entitled to Federal aid as reclamation; as a matter of fact it would be more economical to aid existing drainage districts to provide for their indebtedness than to encourage and assist in the development of other lands.

"Congress legislates for the general welfare. It promotes the general health and good education. Drainage eliminates malaria in many cases. It promotes the general welfare. It aids agriculture. If the end be legitimate, if it be within the scope of the Constitution, all means that are appropriate and that are plainly adapted to that end that are not prohibited, are constitutional Congress has provided for the preservation of battlefields; it has built railroads; it has aided transcontinental railroads. During the war it took over the entire transportation system of the country. Constitutional powers have kept pace with the new agencies brought into use by the increasing demands of commerce, wealth, and population. Reclamation, which is synonymous with drainage, is a part of the internal-improvement policy of the United States. It distributes production, it creates national wealth, it provides for transportation, it makes business for railroads, and it contributes to the health and wealth of the community and the Nation. Agriculture is the basic industry of the country; and the Nation, for its own well-being, must promote agriculture as a part of general policy for the public welfare. The Government of the United States must protect country life. The West is entitled to reclamation, but the North, East, and South are entitled to drainage." (From the testimony of Representative Whittington before House Committee on Irrigation and Reclamation, January 29, 1929.)

In general connection with this subject reference might briefly be made to the statements of the United States Supreme Court in its decision in 1923 in Massachusetts v. Mellon (262 U. S. 447). In this case the constitutionality of the maternity act, so called, was challenged. This act provided for an initial appropriation and thereafter annual appropriations for a period of five years, to be apportioned among such of the several States as should accept and comply with its provisions for the purpose of cooperating with them to reduce maternal and infant mortality and protect the health of mothers and infants. It was asserted that these appropriations were for purposes not national and that therefore the act was an usurpation of power not granted to Congress by the Constitution The United States Supreme Court said:

"The powers of the State are not invaded since the statute imposes no obligation but simply extends an obligation which the State is free to accept or reject. The statute does not require the States to yield anything. If Congress enacted it with the ulterior purpose of tempting them to yield, that purpose may be effectively frustrated by the simple expedient of not yielding. In the last analysis the complaint of the plaintiff State is brought to the naked contention that Congress has usurped the reserved powers of the several States by the mere enactment of the statute, though nothing has been done and nothing is to be done without their consent; and it is plain that this question, as it is thus presented, is political and not judicial in character and therefore is not a matter which admits of the exercise of the judicial power. The administration of any statute likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect to the statute here under review but also in respect of every other appropriation act and statute whose administration requires the outlay of public money and whose validity may be questioned. The bare suggestion of such a result goes far to sustain the conclusion that a suit of this character can not be maintained. It is of much significance that no precedent sustaining the right to maintain suits like this has been called to our attention, although since the formation of the Government a large number of statutes appropriating or involving the expenditure of moneys for non-Federal purposes have been enacted and carried into effect. The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with other people generally."

From the above review it is clear that the proposed drainage act (S. 4123) is not violative of the Constitution, and that its provisions are authorized by and within the purview of Article I, section 8, clause 1, of the Constitution, as follows:

The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States."

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1st Session

No. 39

IMPROVEMENT OF WILLAMETTE RIVER BETWEEN ORE

GON CITY AND PORTLAND, OREG.

JANTARY 12, 1932.—Committed to the Committee of the Whole House on the

state of the Union and ordered to be printed

Mr. Martin of Oregon, from the Committee on Rivers and Harbors,

submitted the following

REPORT

[To accompany H. R. 7248]

The Committee on Rivers and Harbors, to whom was referred the bill (H. R. 7248) authorizing the modification of the existing project for the improvement of the Willamette River, between Oregon City and Portland, Oreg., having considered the same, report thereon with the recommendation that the bill do pass.

The river and harbor act approved July 3, 1930, adopted a project for the 13-mile stretch of the Willamette River lying between Portland, Oreg., and Oregon City, which provided for a channel 8 feet deep and 150 feet wide from the foot of Cedar Island to Oregon City, and 8 feet deep and 200 feet wide between the foot of Cedar Island and Portland. The estimated cost of this work was $200,000, and the law provided that local interests contribute $50,000 toward the cost. The vessel commerce on this section in 1930 amounted to 642,934 tons, valued at $15,933,624, and in addition there was rafted 1,064,935 tons of logs and piling, valued at $3,825,742. The report on the project mentioned above is printed in House Document 372, Seventy-first Congress, second session.

The provision for a local contribution was made mainly because of alleged benefits from increased power at a dam at Willamette Falls (located above Oregon City), which is owned by private parties. Protests from local interests have been made against this assessment. They state that the two principal interests, the Hawley Pulp & Paper Co., and the Crown Willamette Paper Co., do not own the water power at Oregon City, but lease it from the Pacific Northwest Public Service Co.; and, further, that any changes that might be made to take the benefit of any increase in power would cost appreciably more than such power would be worth, and that the operating companies would be under obligation to pay the owning company for any such increased power. The United States district engineer finds that the wheels of the power plants are set too high to take full advantage

of the head now available at low water and that conditions are as represented by local interests.

A report from the Secretary of War on this matter has been submitted to Congress and is printed in House Document No. 748, Seventy-first Congress. In this report the district engineer, the Board of Engineers for Rivers and Harbors, and the Chief of Engineers recommend that the existing project for this section of the river remain unchanged, but that the provision requiring local cooperation to the extent of $50,000 in support of the first cost of the improvement, be waived. Your committee agrees with this recommendation, and the attached bill, if passed, will accomplish this purpose.

The report of the Chief of Engineers, included in the said Document No. 748, is as follows:

WAR DEPARTMENT,
OFFICE OF THE CHIEF OF ENGINEERS,

Washington, February 7, 1931. Subject: Preliminary examination of Willamette River, Oreg. To: The Secretary of War. . 1. I submit for transmission to Congress, my report with accompanying papers, on preliminary examination of Willamette River, Oreg., between Oregon City and Portland, including the locks at Oregon City, authorized by the river and harbor act approved July 3, 1930.

2. The river and harbor act of 1930 authorized a project for the further improvement of the Willamette River between Portland and Oregon City, by providing a channel 8 feet deep and 200 feet wide between Portland and the foot of Cedar Island, and a channel 8 feet deep and 150 feet wide from the foot of Cedar Island to Oregon City, at an estimated cost of $210,000, with $18,000 annually for maintenance, subject to the provision that local interests contribute $50,000 to the cost.

3. The local contribution to the cost of the project was based on the special and local benefits computed as accruing to the water-power users at Oregon City because of the increased head of 272 feet anticipated from the lowering of the water level at the foot of the falls as a result of the channel enlargement. Based on the normal flow the disrrict engineer estimated that an increase in power of 570 kilowatts would result for three months in the year. The cost of reconstruction of the plants not now equipped to utilize the additional head was estimated at not to exceed $7,000, while at the current price of power in large blocks the increased head was computed by the district engineer as having a capitalized value of $70,000 to $100,000. As it was doubtful whether all of this estimated power could be practically realized, the recommended condition of local cooperation was placed at $50,000.

4. A channel of the dimensions authorized in the river and harbor act of 1930 is regarded by local interests as adequate and sufficient for the present needs of

it is now claimed however, that the special and local benefits to water power, on which provision for local contribution was based, are not practically realizable. The district engineer has made a special investigation of this phase of the matter. He finds that the wheels of the power plants are already set too high to take full advantage of the head now available at low water, and that the cost of the modification of the plants to efficiently develop the additional head anticipated as the result of the channel enlargement would exceed the return therefrom. He recommends that the contribution be waived. The division engineer concurs.

5. The reports of the district engineer and the division engineer have been referred, as required by law, to the Board of Engineers for Rivers and Harbors and attention is invited to its report herein concurring in their views.

6. After due consideration of the above-mentioned reports I concur in the recommendation of the board. The provision in the existing project for a local contribution to the extent of $50,000 was based on special and local benefits which, from further investigation, it now appears can not be realized. I therefore report that the elimination of the requirement for local contribution is advisable.

LYTLE BROWN, Major General, Chief of Engineers.

commerce.

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