by the fact that the power, although long and repeatedly exercised by the Congress, has seldom been seriously challenged; but it is also of bearing, as indicated by Massachusetts v. Mellon, 262 U. S. 447, (involving a challenge of the constitutionality of the Act appropriating funds for the furtherance of efforts to reduce maternal and infant mortality) that it does not ordinarily lie within the province of a litigant to challenge the power and discretion of the Congress in this respect.

The Circuit Court of Appeals for the Eighth Circuit, in Langer v. United States, 76 F. (2d) 817, 825, recently (May 7, 1935) had occasion to consider the question and concluded in favor of the authority of the Congress to appropriate money "for purposes outside of the enumerated powers"-for public purposes connected with the general national welfare-and it quoted in this connection the statement in McPherson v. Blacker, 146 U. S. 1, that "the construction * * * has prevailed too long and been too uniform to justify us in interpreting the language of the Constitution as conveying any other meaning than that heretofore ascribed, and must be treated as decisive."

The Circuit Court of Appeals for the Tenth Circuit, in Kansas City Gas and Electric Co. v. City of Independence [August 20, 1935, 79 Fed. (d) 32], has reached the same conclusion, aptly pointing out that

"If the taxing power were limited to the power to lay taxes to effectuate the sixteen specific powers that follow it, the tax clause would be mere verbiage

* * *99

The only contrary view of comparable authority was expressed in 1895 in U. S. ex rel. Miles Planting & Mfg. Co. v. Carlisle, 5 D. C. App. 138, 146–161.

I think I may safely say that practically all commentators upon the Constitution, including many who actually participated in its framing and in the events which accompanied its adoption, have concluded that the so-called general welfare clause empowers the Congress to spend moneys for the general welfare and that there is no limitation which requires that such expenditures shall be in the exercise of or connected with other enumerated powers. Hamilton's Works (Lodge ed.) v. 4, pp. 70, 151; Monroe, View of the President of the United States on the Subject of In

ternal Improvements, 2 Richardson, 144, 167-173; Calhoun, 5 Benton (Abridgement) 704, 706; Tucker, American State Papers, Miscellaneous, 443, 446; John Quincy Adams, Inaugural Address, 2 Richardson, 298; Story on the Constitution (5th ed.) Secs. 913, 923, 924, 991; Hare Constitutional Law, p. 241; Pomeroy, Introduction to Constitutional Law, (10th ed.) Secs. 274-275; Burdick on the Constitution, Sec. 77; Willoughby, United States Constitution, (2d ed.) v. 1, Sec. 62; Corwin, The Spending power of Congress, 36 Harvard L. R. 548.

The debates in the ratifying conventions in the states indicate acceptance of the same view. Elliott's Debates on the Federal Constitution-Analyses by Corwin, 36 Harvard L. R. 548, and McGuire, 23 Georgetown L. J., 155, 171.

I quote from Hamilton, supra, (p. 151) in his Report on Manufactures:

"The phrase is as comprehensive as any that could have been used, because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the 'general welfare,' and because this necessarily embraces a vast variety of particulars which are susceptible neither of specification nor of definition. It is, therefore, of necessity, left to the discretion of the National Legislature to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper. And there seems to be no room for doubt that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce, are within the sphere of the national councils, as far as regards an application of money.

President Washington, it may be noted during his first term, recommended to the Congress an appropriation" for the establishment of a national university and the encouragement of agriculture," which, presumably, is to be justified as an appropriation in the interest of the general welfare. Richardson, Messages and Papers of the Presidents, pp. 201-202.

Willoughby, supra, states:

"It scarcely needs to be pointed out that a considerable number of the administrative services now carried on by the

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National Government and maintained by Federal appropriations, depend for their constitutionality wholly upon the power of Congress to authorize the expenditure of public moneys for the promotion of the general welfare of the United States. Among such services which are to a very slight, if any, extent concerned with matters directly connected with the exercise of powers specifically or by implication vested in the Federal Government, may be mentioned the Public Health Service, the Bureau of Education, the Geological Survey, the Bureau of Mines, the Department of Agriculture, with its many bureaus, the Bureau of Fisheries, the Bureau of Labor Statistics, the Children's Bureau, the Women's Bureau, the Smithsonian Institution, the National Gallery of Art, the Bureau of American Ethnology, the Astrophysical Observatory, and many of the special services in various of the other administrative departments of the Federal Government.'

I regard it, therefore, as an established principle that the Congress has the power, which it has in fact so long and repeatedly exercised, to provide from the Treasury for the general welfare. It further seems to me incontrovertible that the purposes of the National Housing Act are for the welfare of the nation as a whole. Not only does the Act provide protection for our national financial structure, but it will also result in encouragement of better housing conditions throughout the country, in the provision of cheap and safe credit for the home owners of the United States, and in the stimulation of the building industry, and indirectly of the durable goods industry, with consequent improvement in general conditions, including the furnishing of employment to many of the nation's unemployed.

The power to expend necessarily includes the power to assume contractual obligations to pay money, and contingent obligations are as much within the power as are absolute promises. Furthermore, the power of the Congress to borrow on the credit of the United States-which must permit borrowings for all purposes for which the Congress is authorized to make expenditures-logically authorizes a guarantee by the United States of obligations incurred by its agencies in the borrowing of money. In my opinion to you of August 22, 1933. upon the validity of bonds issued by the

Home Owners' Loan Corporation and the guarantee of such bonds by the United States-the principles of which are generally applicable here—I stated the following:

66 The power to borrow on the credit of the United States necessarily includes the power to make only a partial use of that credit for borrowing purposes. In my opinion Congress is making a valid use of its borrowing power when it authorizes a corporate agency to borrow and places the credit of the United States behind payment of the * obligations which that Corporation issues" [37 Op. 241, 247].

I am, therefore, of the opinion that the insurance and the guarantees provided for in the Act are within the constitutional grants of power to appropriate for the general welfare and to borrow money on the credit of the United States.

Based upon the right of the Congress to protect the established financial institutions, to arrange for government instrumentalities to handle the fiscal affairs of the nation, and to provide for the public welfare by using its funds to finance mortgage insurance and its credit to guarantee debentures issued under Title II of the Statute, I am of the opinion that each of the questions submitted should be answered by an unqualified affirmative.

Respectfully,

To the PRESIDENT.

HOMER CUMMINGS.

DEDICATION OF LAND FOR USE AS PARKS, PLAYGROUNDS, OR STREETS IN CONNECTION WITH LOW-COST HOUSING AND SLUM-CLEARANCE PROJECTS

In connection with the carrying out of low-cost housing and slumclearance projects, the Government may, if it is deemed necessary or advantageous to the project, dedicate land to the city or other public body for use as a park or playground, or as a street, provided that the function of any land dedicated for use as parks or playgrounds is incidental to the contemplated low-cost housing or slum-clearance projects and reasonably necessary to provide therefor proper light, air, approaches, etc., as distinguished from monumental, landscaping, scenic, or similar functions.

The reasoning of the opinion to the Secretary of the Interior of September 10, 1934, in which it was held that the Government may dedicate land for roads, streets, walks, parks, and parkways in connection with subsistence homestead projects, is applicable here.

DEPARTMENT OF JUSTICE,

September 16, 1935.

SIR: In your letter of June 11 you requested my opinion whether, in connection with the carrying out of low-cost housing and slum-clearance projects, "the Government may, in a case where deemed necessary or advantageous to the project, dedicate land to the city or other public body for use (1) as a park or playground or (2) as a street, provided such dedication in either case is calculated to procure the intended advantages on an economical basis, it being understood that the dedication would provide for reversion of full ownership to the Government in the event of failure to use the land for the specified purpose."

Section 202 of the National Industrial Recovery Act (Title II, relating to public works and construction projects) provided that the Public Works Administrator, under the direction of the President, "shall prepare a comprehensive program of public works, which shall include among other things * construction, reconstruction, alteration, or repair under public regulation or control of low-cost housing and slum-clearance projects" (48 Stat. 201).

Section 203 authorized the President, acting through the Administrator, "to construct, finance, or aid in the construction or financing of any public works project included in the program prepared pursuant to Section 202", with express authority to acquire land needed in connection therewith and to sell " any property so constructed or acquired or to lease any such property with or without the privilege of purchase."

The Emergency Relief Appropriation Act of 1935 contained the following provisions:

"SEC. 12. The Federal Emergency Administration of Public Works established under title II of the National Industrial Recovery Act is hereby continued until June 30, 1937, and is authorized to perform such of its functions under said Act and such functions under this joint resolution as may be authorized by the President. All sums appropriated to carry out the purposes of said Act shall be available