§ 269. Power of Congress to Appropriate Money.

A parity of reasoning would seem to provide the principie that inasmuch as taxes must be for a publie purpose, an appropriation of the proceeds of taxes should be for a public purpose. Furthermore, it would seem to be not unreasonable to argue that the Federal Government being one of limited enumerated powers, Congress has not the authority to appropriate money except as required for the performance of the duties thus constitutionally laid upon it. In fact, however, the limitation that an appropriation should be for a public purpose has been without practical effect, as the courts have in no case attempted to hold invalid an appropriation by Congress on the ground that it has been for a purpose not public in character; and, as regards the restriction that appropriations shall be in aid of enterprises which the Federal Government is empowered to undertake, the doctrine has become an established one that Congress may appropriate money in aid of matters which the Federal Government is not constitutionally able to administer and regulate.

The authority of Congress to appropriate money for internal improvements within a State, although the Federal Government has not itself the authority to construct or operate such improvements, is discussed by President Monroe in connection with the veto in 1822 of the Cumberland Road Bill, and by President Jackson in his veto in 1830 of the Maysville Turnpike Bill.

In a paper entitled "Views of the President of the United States on the Subject of Internal Improvements," submitted in connection with his veto, President Monroe takes the position that though Congress has not the constitutional power to provide for the construction or operation under federal direction of roads, canals or other internal improvements within the States, it has the power to appropriate money in aid of such improvements.

in what form the power is exercised—whether in the unequal levy of the tax, or in the regulation of the boundaries of local government, which results in subjecting the party unjustly to local taxes, it must be regarded as coming within the prohibition of the Constitution designed to protect private rights against aggression, however made, and whether under the color of recognized power or not." Cf. McGehee, Due Process of Law, 231.

The constitutional grant to Congress of the 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," he very correctly argues does not operate to vest in the General Government any additional powers of control, but solely to authorize that government to raise revenues and to appropriate money to the purposes specified. These purposes, however, he maintains, are broad enough to enable Congress to appropriate money in aid of enterprises which the General Government cannot undertake or directly control.25

25 Monroe's argument is as follows: "A power to lay and collect taxes, duties, imposts and excises, subjects to the call of Congress every branch of the public revenue, internal and external, and the addition to pay the debts and provide for the common defense and general welfare gives the right of applying the money raised—that is, of appropriating it to the purposes specified according to a proper construction of the terms. Hence it follows that it is the first part of the clause only which gives a power which affects in any manner the power remaining to the States, as the power to raise money from the people, whether it be by taxes, duties, imposts, or excises, though concurrent in the States as to taxes and excises, must necessarily do. But the use or application of the money after it is raised is a power altogether of a different character. It imposes no burden on the people, nor can it act on them in a sense to take power from the States or in any sense in which power can be controverted, or become a question between the two Governments. The application of money raised under a lawful power is a right or grant which may be abused. It may be applied partially among the States, or to improper purposes in our foreign and domestic concerns; but still it is a power not felt in the sense of other power, since the only complaint which any State can make of such partiality and abuse is that some other State or States have obtained greater benefit from the application than by a just rule of apportionment they were entitled to. The right of appropriation is therefore from its nature secondary and incidental to the right of raising money, and it was proper to place it in the same grant and same clause with that right. By finding them, then, in that order we see a new proof of the sense in which the grant was made, corresponding with the view herein taken of it."

Having explained that the grant is one of simply a power to appropriate, Monroe then considers the extent to which this power may be carried. He writes: "It is contended on the one side that as the National Government is a government of limited powers 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 is a mere instrument in its hands to carry into effect the powers contained in the other grants.

In President Jackson's veto of the Maysville Road Bili practically the same constitutional position as that taken by Monroe is assumed; the appropriation in this case, however, is vetoed upon the ground that the improvement in question was, in the To this construction I was inclined in the more early stage of our Govern ment; but on further reflection and observation my mind has undergone a change, for reasons which I will frankly unfold. The grant consists, as heretofore observed, of a twofold power the first to raise, the second to appropriate, the public money—and the terms used 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 a power over every subject from which revenue may be drawn, and is made in the same manner with the grants to declare war, to raise and support armies and a navy, to regulate commerce, to establish post-offices and post-roads, and with all the other specific grants to the General Government. In the discharge of the powers contained in any of these grants there is no other check than that which is to be found in the great principles of our system, the responsibility of the representative to his constituents. If war, for example, is necessary, and Congress declares it for good cause, their constituents will support them in it. A like support will be given them for the faithful discharge of their duties under any and every other power vested in the United States. The power to raise money by taxes, duties, imposts, and excises is alike unqualified, nor do I see any check on the exercise of it other than that which applies to the other powers above recited, the responsibility of the representative to his constituents. Congress knows the extent of the public engagements and the sums necessary to meet them; they know how much may be derived from each branch of revenue without pressing it too far; and, paying due regard to the interests of the people, they likewise know which branch ought to be resorted to in the first instance. From the commencement of the Government two branches of this power, duties and imposts, have been in constant operation, the revenue from which has supported the Government in its various branches and met its other ordinary engagements. In great emergencies the other two, taxes and excises, have likewise been resorted to, and neither was the right nor the policy called in question. If we look to the second branch of this power, that which authorizes the appropriation of the 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 the like effect on the other. Had the power to raise money been conditional or restricted to special purposes, 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 be useless and

President's opinion, of a purely local character, or, as he says, "if it can be considered national, no further distinction between the appropriate duties of the General and State Governments need be attempted, for there can be no local interest that may not with equal propriety be denominated national."

improper to raise more than would be adequate to those purposes. It may fairly be inferred these restraints or 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 cause and sentence. Can it be presumed that all these circumstances were so nicely adjusted by mere accident? Is it not more just to conclude that they were the result of due deliberation and design? Had it been intended that Congress should be restricted in the appropriation of the public money to such expenditures as were authorized by a rigid construction of the other specific grants, how easy would it have been to have provided for it by a 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."

"If, then," Monroe continues, "the right to raise and appropriate the public money is not restricted to the expenditures under the other specific grants according to a strict construction of their powers, respectively, is there no limitation to it? Have Congress a right to raise and appropriate to any and to every purpose according to their will and pleasure? They certainly have not. The Government of the United States is a limited Government, instigated for great national purposes, and for those only. Other interests are committed to the States, whose duty it is to provide for them. Each government should look to the great and essential purposes for which it was instituted and confine itself to those purposes. A state government will rarely if ever apply money to national purposes without making it a charge to the nation. The people of the State would not permit it. Nor will Congress be apt to apply money in aid of the state administrations for purposes strictly local in which the nation at large has no interest, although the State should desire it. The people of the other States would condemn it. They would declare that Congress had no right to tax them for such a purpose, and dismiss at the next election such of their representatives as had voted for the measure, especially if it would be severely felt. I do not think that in offices of this kind there is much danger of the two governments mistaking their interests or their duties. I rather expect that they would soon have a clear and distinct understanding of them and move on in great harmony. Good roads and canals will promote many very important national purposes. They will facilitate the operations of war, the movements of troops, the transportation of cannon, of provisions, and every warlike store, much to our advantage and to the disadvantage of the enemy in time of war. Good roads will facilitate the transportation of the mail, and thereby promote the purposes of

The extent of the appropriating power of Congress is illus trated in the case of United States v. Realty Co.,26 in which was upheld the power of Congress to appropriate money for the payment of certain claims which the Federal Government was not legally but only morally obligated to satisfy. The court said: "We are of opinion that the parties in these actions . acquired claims upon the Government of an equitable, moral or honorary nature Congress has power to lay and collect taxes, etc., to pay the debts' of the United States. Having the power to raise money for that purpose, it of course follows that it has power when the money is raised to appropriate it to the same object. . The term 'debts' includes those debts

or claims which rest upon a merely equitable or honorary obligation, and which would not be recoverable in a court of law if existing against an individual. Payments to individuals, not of right or of a merely legal claim, but payments in the nature of gratuity, yet having some feature of moral obligation to support them, have been made by the government by virtue of acts of Congress, appropriating the public money, ever since its foundation. Some of the acts were based upen considerations of commerce and political intelligence among the people. They will by being properly directed to these objects enhance the value of our vacant lands, a treasure of vast resource to the 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. right of appropriation is nothing more than a right to apply the public money to this or to that purpose. It has no incidental power, nor does it draw after it any consequences of that kind. All that Congress could do under it in the case of internal improvements would be to appropriate the money necessary to make them. For every act requiring legislative sanction or support the state authority must be relied on. The condemnation of the land, if the proprietors should refuse to sell it, the establishment of turnpikes and tolls, and the protection of the work when finished must be done by the State. To these purposes the powers of the General Government are believed to be utterly incompetent. . . The substance of what has been

The

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 a discretionary power, restricted only by the duty to appropriate it to purposes of common defense and of general, not local, national, not state, benefit."

26 163 U. S. 427; 16 Sup. Ct. Rep. 1120; 41 L. ed. 215.