1

should not be appropriated for improvements. He then took up the constitutional question: he apparently admits the authority of Congress to appropriate money for national improvements, but comes to the conclusion that it is practically impossible to draw any line or principle between deepening a harbor capable of admitting only small sailing craft, and deepening a harbor capable of receiving large ships. "I cannot perceive," he says, "any intermediate ground. The power to improve harbors and rivers for purposes of navigation . . . must be admitted without other limitation than the discretion of Congress, or it must be denied altogether." This difficulty resolves itself into a question of fact and not into a settlement of constitutional points. The constitutional rule is plain enough, but Polk seemed to think the selection of suitable places so far beyond the wisdom of Congress that he considered it unwise for the national government to engage in making internal improvements. The President, however, recognized that some works were indispensable, and suggested that the States be allowed to lay tonnage duties for this purpose. The States may, under the Constitution, lay such duties, with the consent of Congress,2 and the President referred to many instances where that consent had been given.3 In conclusion, he advocated the passage of an amendment to the Constitution granting Congress the power to appropriate money for internal improvements, in States in which it was impossible to lay tonnage duties.

It

The debate on this message was of no particular moment. was enlivened by a sharp speech of Mr. Schenck, in which he classified, in an amusing manner, the various tests as to the constitutionality of internal improvements, and concluded by practically including all improvements as national in their influence.

§ 89. Pierce's vetoes. Implied powers. Implied powers. Had Tyler been in sympathy with the party which chose him, he would not have opposed internal improvements; the next Whig Presidents, Taylor and Fillmore, vetoed no bill of any kind. Fillmore's Democratic successors, however, again set forth the doctrine to which their predecessors, Jackson and Polk, had given life.

1 Senate Miscellaneous Documents, 49 Cong., 2 sess., No. 53, p. 198.

2 Constitution, Art. 1, Sec. 10, Clause 2.

3 Thirteen instances are referred to where tonnage duties were laid with the consent of Congress for the purpose of internal improvements by Mass., Va., N. C., S. C., Ga. 4 Congressional Globe, 30 Cong., I sess., 37.

August 4, 1854, President Pierce vetoed a bill making appropriations for the completion of certain public parks.1 December 30, 1854, the President sent to Congress a careful statement of his reasons for vetoing the bill, and at the same time took occasion to state his position on the question of internal improvements. He held that the national government should not make appropriations for internal improvements, unless the improvements were necessary to the execution of the enumerated powers of Congress.2 The President's principle seems to be that when an improvement was plainly and directly for the benefit of the army or the navy, or was necessary for the establishment of post roads or the regulation of commerce, it was constitutional. He does not in terms call the improvement of rivers and harbors for commercial purposes unconstitutional, but leaves it to be inferred that, in most cases, such improvements would be unauthorized. In closing his message the President recommends a return "to the primitive idea of Congress, which required, in this class of public work, as in all others, a conveyance of the soil, and a cession of the jurisdiction of the United States."3 Furthermore, he advised that the appropriation for each work be made in a separate bill. The advantages of the last suggestion are obvious, and in recent years the attempt has frequently been made to accomplish much the same end, by allowing the President to veto items in appropriation bills.5

In May and August, 1856, President Pierce vetoed five internal improvement bills.6 The President, in accordance with the rule which he laid down in his message of December 30, 1854, objected to the bills now under discussion, because they were not directly essential to the exercise of the powers of Congress, but were parts of a general system of internal improvements. Congress was not in a mood to submit to the President's views, and it passed each of the five bills over the veto; this was the first case in which an internal improvement veto had failed to check legislation.

1 Appendix A, No. 35.

2 Senate Miscellaneous Documents, 49 Cong., 2 sess., No. 53, p. 225.

5 See post, § 134. There was practically no discussion of this message in Congress, Congressional Globe, 33 Cong., 2 sess., 161.

6 May 19, Mouth of the Mississippi River, Appendix A, No. 38. May 19, Channel over the St. Clair Flats, Appendix A, No. 39. May 22, Channel over St. Mary's River Flats, Appendix A, No. 40. August 11, Des Moines River, Appendix A, No. 41. August 14, Patapsco River, Appendix A, No. 42.

Several interesting points of procedure came up on the passage of the bills over the veto. On the consideration of the first one (May 19, 1856) the President of the Senate decided that the bill would pass if two-thirds of the Senators present, instead of twothirds of the entire Senate voted in favor of it. An appeal was taken from the ruling, but it was sustained by a vote of 34 to 7,1 and remains the principle accepted by the best interpreters of the Constitution.2

The Senate on the consideration of the fourth and fifth messages (August II and 14) failed in the first attempt to pass the bill over the veto. In each case, however, the vote was reconsidered several days later, and the necessary two-thirds majority was obtained.3

§ 90. Buchanan's vetoes.

Constitutional grounds. - February 1, 1860, President Buchanan sent to the Senate his reasons for failing at the last session of Congress to sign an act making appropriation for the deepening of the channel over the Saint Clair Flats, in Michigan. The channel had already been improved, and the present bill was to provide for additional, and in the President's opinion, unnecessary, dredging. More than this, he considered the bill unconstitutional. For his reasons on the latter point, he referred to President Polk's veto of December 15, 1847,5 in which, it will be remembered, President Polk argued that it was unconstitutional for the national government to carry on any internal improvements, and advocated the authorization of State tonnage duties. The President restated Polk's reasoning at some length, and added nothing to it.

February 6, 1860, President Buchanan sent to the Senate a message stating that he had failed to sign at the last session of Congress a joint resolution appropriating money for removing obstructions to the navigation of the Mississippi River, for the reasons set forth in his veto message of February 1, § 91. Grant's veto and refusal to carry out a bill. to 1882 there were no internal improvement vetoes.

1860.6

1 Senate Miscellaneous Documents, 49 Cong., 2 sess., No. 53, p. 255. 2 Post, $109.

- From 1860 The neces

3 Senate Miscellaneous Documents, 49 Cong., 2 sess., No. 53, pp. 257, 258, post, § III.

4 Appendix A, No. 45.

5 Ante, § 87.

sities of the Civil War cut off this form of expenditure; and when in 1870 the finances of the government permitted the resumption of the policy, the Republican party was found in much the same attitude as that of the Whigs. August 14, 1876, President Grant in signing a river and harbor bill protested strongly against certain of its provisions. In the first place he objected to numerous appropriations in the bill which were for improvements in no sense national. In the second place the President doubted the advisability of making any appropriations further than to provide for the protection of works already finished and paid for, in view of the probable falling off of the internal revenue. The President declared that he would not have approved the bill had it been obligatory upon the executive to spend all the money appropriated by Congress. Since he was not under such an obligation, the President, although he had signed the bill, informed Congress that he should take care that, during his term of office at least, no public money should be expended upon improvements which were not of a national character. This was a new way of defeating the provisions of an internal improvement bill, and it was a means that could be made very effective during at least one administration.

The authority under which President Grant made the statement is found in the first paragraph of the act which reads: "the following sums of money... are hereby appropriated, to be paid out of any money in the Treasury not otherwise appropriated, to be expended under the direction of the Secretary of War, for the repair, preservation, construction, and completion of the following works." It may seem like an unwarranted stretching of the sense of the clause to make it mean that the executive may do as he chooses about carrying out the provisions of a bill; but no objection was made to the President's interpretation. Indeed, it has become the practice of the executive to withhold expenditures upon works plainly of no value; but the open avowal made by President Grant of his determination not to carry into effect a law duly passed by Congress and approved by himself, has not been repeated.2

§ 92. Arthur's veto. Local objects. A few years later, the appropriations had so increased in amount that President Arthur 1 19 U. S. Stats. at Large, 132.

2 Gen. Grant vetoed an unimportant internal improvement bill (App. A, No. 102) on the ground that the objects of the appropriations were most of them local.

felt compelled, August 1, 1882, to veto a river and harbor bill. His reason for this action was that the bill contained provisions of a purely local character, and was therefore unconstitutional. The bill was promptly passed over the veto. In the next session the Senate took the unusual course of calling upon the President to name the items in the bill which he considered of local importance. The President pointed out items aggregating almost one million dollars.1

$93. Public buildings. Besides the bills for the improvement of various means of communication, roads, canals, and water-ways, Congress has passed a large number of measures for improvements of an entirely different kind, the construction of public buildings. The first President to check this legislation was Cleveland. In the messages there could of course be no question of constitutionality; the buildings authorized by the bills were for the accommodation of the United States courts, for post-offices, and for revenue offices - buildings which Congress is expressly authorized to erect in the different States upon such sites as may be purchased with the consent of the State legislatures.2 The ground which the President took in each of the vetoes was, therefore, that there was no necessity for the erection of the building called for by the bill; that the needs of the government were well satisfied, and the proposed structure was merely to gratify local pride. 3

§ 94. General view of internal improvement vetoes. Before leaving the subject, it may be well briefly to sum up, in so far as it is possible, the effect of the internal improvement vetoes. President Madison based his dissent on the broad ground that the Constitution as it stood did not authorize such undertakings by the national government. President Monroe agreed with the principle, but held that it applied to cases where the United States undertook to "construct" roads and canals, and not to cases where Congress merely appropriated money for improvements which were national in character, and over which Congress did not claim jurisdiction. After Monroe's time, the distinction between. "constructing" and "appropriating" seems to have been almost

1 Papers of the American Historical Association, III, 192.

2 Constitution, Art. 1, Sec. 8, Clause 17.

3 The vetoed bills were twelve in number: Appendix A, Nos. 157, 158, 227, 234, 235, 237, 294, 308, 312, 313, 314, 374.