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BUREAU OF THE BUDGET, Washington, December 12, 1927. SIR: I have the honor to submit herewith for your consideration a supplemental estimate of appropriation for the fiscal year ending June 30, 1928, amounting to $10,000 for the Department of Agriculture, to enable the Secretary of Agriculture to carry into effect the provisions of the act entitled "An act to prevent the destruction or dumping, without good and sufficient cause therefor, of farm produce received in interstate commerce by commission merchants and others and to require them truly and correctly to account for all farm produce received by them," approved March 3, 1927.

Administration of the produce agency act, 1928--

$10,000

This act provides that any person receiving in interstate commerce produce for or on behalf of another, who shall, without good cause, dump any produce or who shall knowingly make any false report or statement to the person from whom such produce was received concerning the handling, condition, quality, quantity, sale, or disposition thereof, or who shall knowingly fail truly and correctly to account therefor shall be guilty of a misdemeanor. The provisions of the act, which are effective July 1, 1927, also authorize an appropriation of $25,000 beginning with the fiscal year 1928. The funds requested in this supplemental estimate will be needed to enable the Secretary of Agriculture to employ the personnel required to enforce the provision of the act until June 30, 1928.

This supplemental estimate of appropriation is required to provide for the enforcement of legislation which has been enacted since the transmission of the Budget for the fiscal year 1928, and its approval is recommended.

Very respectfully,

The PRESIDENT.

H. M. LORD,

Director of the Bureau of the Budget.

Supplemental estimates of appropriations required for the service of the fiscal year ending June 30, 1928, by the Department of Agriculture

BUREAU OF AGRICULTURAL ECONOMICS

Administration of the produce agency act: To enable the Secretary of Agriculture to carry into effect the provisions of an act entitled "An act to prevent the destruction or dumping without good and sufficient cause therefor, of farm produce received in interestate commerce by commission merchants and others and to require them truly and correctly to account for all farm produce received by them," approved March 3, 1927, including the employment of such persons and means in the city of Washington and elsewhere as the Secretary of Agriculture may deem necessary, and the purchase of such perishable farm products as may be necessary for the detection of violations of the act, fiscal year 1928, $10,000: Provided, That all receipts from the sale of such products shall be credited to this appropriation and shall be reexpendable therefrom (submitted).

$10,000

1st Session

No. 17

JUDGE STORY'S POSITION ON THE SO-CALLED GENERAL

WELFARE CLAUSE

ARTICLE FROM THE AMERICAN BAR ASSOCIATION
JOURNAL, JULY, 1927, ENTITLED JUDGE STORY'S
POSITION ON THE SO-CALLED GENERAL WELFARE
CLAUSE, BY HON. HENRY ST. GEORGE TUCKER,
PRESIDENT AMERICAN BAR ASSOCIATION 1904-5
AND MEMBER OF CONGRESS FROM VIRGINIA

PRESENTED BY MR. MOSES FOR MR. REED OF MISSOURI

DECEMBER 13, 1927.-Ordered to be printed

UNITED STATES

GOVERNMENT PRINTING OFFICE

WASHINGTON

S D-70-1-vol 24-15

JUDGE STORY'S POSITION ON THE SO-CALLED GENERAL

WELFARE CLAUSE

PROPOSITIONS SUGGESTED IN CONSTITUTIONAL CONVENTION ON SUBJECT OF POWERS OF CONGRESS-JUDGE STORY'S VIEW AS SET FORTH IN HIS COMMENTARIES-PRINCIPLES OF INTERPRETATION EMPLOYED AND ONE-SIDED APPLICATION--CONCLUSION THAT THE WORDS "COMMON DEFENSE AND GENERAL WELFARE" ARE MERELY A LIMITATION UPON THE TAXING POWER RESULTS IN ANOMALOUS CONDITION1

By HENRY ST. GEORGE TUCKER, President American Bar Association, 1904–5; Member of Congress; Member of Virginia Bar

[From the American Bar Association Journal, July, 1927, p. 363]

Mr. President and gentlemen of the Georgia Bar Association, I make no apology for presenting to you to-day as the subject of my address a technical and abstruse question, because it involves the foundation stone of our form of government.

The subject to which I invite your attention may be put in this form, "Judge Story's position on the so-called general welfare clause of the Constitution of the United States."

The words "the general welfare" are to be found in two places in the Constitution-in the preamble thereto and in Article I, section 8, clause 1. All reputable writers concur in the statement that the words of the preamble to the Constitution constitute no grants of power, and therefore our investigation is confined to the words as found in Article I, section 8, clause 1, which reads:

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; but all duties, imposts, and excises shall be uniform throughout the United States.

It will be observed by reading the whole section carefully that the above clause is the first of 18 clauses, placed consecutively one after another, separated by a semicolon from each other, each beginning with the word "To" with a capital "T," and all 18 clauses constituting one sentence, the last clause of which is not a separate grant of power like the others, but is intended to perfect and enlarge the previous 17 grants of power to Congress. It is known as the coefficient clause, and reads:

The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof.

To a proper understanding of the question it is proper to examine the propositions suggested in the Constitutional Convention on the subject of the powers of Congress.

1 Address delivered before annual meeting of Georgia Bar Association held at Tybee Island on June 2 1927.

Mr. Hamilton's plan, on the powers of Congress, provided that the Legislature of the United States should have "powers to pass all laws whatsoever subject to the negative hereafter mentioned," which negative was the power of the Executive to have a negative on all laws about to be passed.

Mr. Randolph's plan proposed Congress should have all powers which it possessed under the Confederation "and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation," etc.

Mr. Patterson's plan provided that Congress should have all powers which it possessed under the Confederation and power "to pass acts for raising a revenue, by levying a duty or duties on all goods, etc., imported into any part of the United States, etc., and by postage on all letters to be applied to such Federal purposes as they shall deem proper and expedient, to pass acts for the regulation of trade and commerce as well as with foreign nations as with each other," etc.

Mr. Pinckney's plan, offered on the 29th of May, 1787, three days after the Convention met, provided:

The Legislature of the United States shall have power to lay and collect taxes, duties, imposts, and excises;

To regulate commerce, etc.;

To borrow money, etc.;

To establish post offices;

containing in all 21 specific grants of power, the last of which reads, "and to make all laws for carrying the foregoing powers into execution."

Pinckney's plan, as introduced, on this subject came out of the convention on the 15th of September in form and substance pretty much as it was introduced on the 29th of May, with this change, that on the 4th of September there was added to clause 1, after the word "excises" the words "to pay the debts and provide for the common defense and general welfare of the United States."

Hamilton's fight in the convention was to give to Congress unlimited power. Pinckney's plan prescribed definite powers to Congress. This was the struggle of the convention, and while Hamilton's plan, on this clause, was practically voted down six times in the convention, either directly or by voting up a distinct opposing proposition, his followers have struggled to show that the words "the general welfare" put into clause 1, section 8, Article I, really mean what was specifically rejected by the convention six times. (See speech of Henry St. George Tucker (maternity bill) delivered in House of Representatives March 3, 1926, p. 15 et seq.)

I

Judge Story's position on this subject can best be seen from quoting his own words on the subject, beginning at section 906 of his Commentaries, page 628, volume 1:

SEC. 906. The first clause of the eighth section is in the following words: "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; but all duties, imposts, and excises shall be uniform throughout the United States."

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