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moral obligation on the Congress, just as the other items, the interest on the public debt and other things, veterans' obligations, other leases and obligations of that kind, that we have to appropriate from year to year.

This places a moral obligation on the Congress not to welch on its duty in connection with the issuance, once the Congress passes the law to authorize it?

Mr. BROWNELL. Yes.

Senator MARTIN. Might I ask another question?

Senator GORE. Senator Martin.

Senator MARTIN. That would also apply to our retirement system, would it not?

Senator BUSH. Yes, or any other long-term commitment.

Senator MARTIN. Or any other commitment that has to be appropriated by Congress.

Senator GORE. I notice that you say that you cannot conceive that Congress would wipe out this source of revenue.

Mr. BROWNELL. Without providing a substitute that was adequate. Senator GORE. Suppose in the natural course of events, a fortuitous course of events as the case might be, that gasoline and oil should cease to be used as a fuel to the extent that they now are. Having had a ride on the Nautilus, I do not think it is impossible that we may have atomic automobiles in future years.

What would be the moral obligation of the Congress in case the natural course of events diminished, if not eliminated, this source of revenue?

Mr. BROWNELL. I think they would have to provide a substitute to carry out this moral obligation.

Senator GORE. Thank you.

Mr. BROWNELL. In other words, I say that this same cent that we are talking about here would provide a basic security for these investments of the Highway Corporation.

Senator MARTIN. If I might ask one question, Mr. Chairman.
Senator GORE. Certainly.

Senator MARTIN. As I understand, you feel that the United States Government from historical precedent would take care of these obligations?

In the matter of building roads at one time out in the subdivisions of our various State governments, men even worked out by roads the road tax, and we have kept on developing it until now, of course, the big source of revenue is gasoline.

There may be atomic energy one of these days. I would not know how we go about taxing it, but I have always found fellows that have the ingenuity to tax these things.

Senator CASE, Mr. Chairman.

Senator GORE. Senator Case.

Senator CASE. I doubt if the record is quite right on one point, somebody's question and the general's answer a moment or two ago, indicated that an annual appropriation would be necessary for the payment of interest.

The language of the bill would contradict that, for it provides at the top of page 8

Mr. BROWNELL. Senator, I understood the question to relate to obligations of the United States.

Senator MARTIN. That was what I asked him.

Mr. BROWNELL. It was just an analogy that we were talking about, not this particular bill. Am I right on that, Senator?

Senator MARTIN. That is right.

Senator CASE. You are not denying that the money which the Secretary of the Treasury would advance to the Corporation might be used for the payment of the interest?

Mr. BROWNELL. That is right. You are correct on that. I would just want to sum up, Mr. Chairman, by saying that I think the same faith would provide the basic security for these investments. That faith is justified, and the investment would be a good one.

Question has also been raised as to the legality of an appropriation of indefinite duration-a so-called permanent appropriation-because of the provisions in section 105 of the bill for a continuing appropriation to provide the necessary funds for servicing the bonds.

There is no constitutional objection to such a provision, and there are a number of precedents for similar legislative action by the Congress.

I cite as an example, section 201 (a) of the Social Security Act, as amended, which provides for appropriation of amounts for the fiscal year ending June 30, 1941, and for each fiscal year thereafter, "out of any moneys in the Treasury not otherwise appropriated” (42 U.S. C. 401).

Another example might be railroad unemployment insurance account, Congress provided that funds are

permanently appropriated-to be continuously available for the payment of benefits (45 U. S. C. 360).

Nor is there any question as to the constitutionality of providing that the proceeds of a particular tax may be used for a specified purpose. I think the Comptroller General has already cited to you the case of Cincinnati Soap v. The United States (301 U. S. 308, 313), where there was involved the constitutionality of a provision in the Revenue Act of 1934 imposing a tax on the processing of coconut oil and providing that the proceeds thereof shall "be held in a separate fund and paid to the Treasury of the Philippine Islands."

The court in that case upheld this provision, stating

If the tax, qua tax, be good, as we hold it is, and the purpose specified be one which would sustain subsequent and separate appropriation out of the general funds of the Treasury, neither is made invalid by being bound to the other in the same act of legislation.

That appears to be precisely the situation which S. 1160 contemplates.

You have also requested me to comment on section 208 of the bill. That section is the one which provides that if the Secretary of Commerce determines that a State is "unable to obtain possession and the right to enter upon and use" required rights-of-way, lands or interests in lands "with sufficient promptness," he is authorized

Senator GORE. General.

Mr. BROWNELL. Yes, sir.

Senator GORE. Before you go to that point, I was not here yesterday, but I read portions of the statement of the Comptroller General, and his staff held that these bonds would be legal and constitutional.

Maybe he still reserved some doubt, but, as I recall what I read, he justified the legality of these bonds on the basis that the Constitution provides that the Congress may make appropriations "to pay debts and provide for the defense." He said that in a broad sense these bonds would be debts of the United States.

Mr. BROWNELL. That is for the purpose of sustaining the tax?
Senator GORE. Yes.

Mr. BROWNELL. In other words, that is under the taxing power of the United States?

Senator GORE. So they are debts so far as tax is concerned, but not debts so far as the debt limit is concerned; is that it?

Mr. BROWNELL. That is a clearly recognized distinction, so far as that is concerned.

Senator GORE. I have heard of differences without distinctions.

Mr. BROWNELL. That has a very real distinction because of the practical consequences of it.

Senator BUSH. I would like to refer the chairman to what the Attorney General read about the debt limit there. It has to be issued under that section of the law if it is to be regarded as in and out of the debt limit.

Senator CASE. Mr. Chairman, I would like to ask the Attorney General to comment upon the principles involved if you say that the taxing power of the Government constitutionally may be directly and specifically used only to take care of the debt.

Then you try to classify this as sort of an extraterritorial debt some way so that you still support it without violating the constitutional limitations on the use of the taxing power.

Mr. BROWNELL. In your statement of facts there, the taxing power under the Constitution is broad enough to cover anything debts or national defense or general welfare, those are the three classifications. The taxing power of the United States is broad enough to cover taxes levied for any one of those objectives.

Senator CASE. This may not be a fair question to ask of the Attorney General. I asked it of the Secretary of the Treasury, though; but as a matter of public policy and looking ahead to the future and to other bond issues and to other dates, is it good public policy to use the taxing power of the Government and a general levy, an excise tax, and dedicate the proceeds of that to the service of a particular bond issue?

Mr. BROWNELL. I think it is entirely a matter of the wisdom of the Congress as to whether the situation is critical enough here to warrant this kind of setup.

If you believe, as I do after reading some of the reports and testimony before this committee, that this is a pretty serious problem for the United States, then you have got to find the most practical way to solve this problem.

Senator CASE. You say the most practical way. Personally I do not believe it is the only way, and I do not believe it is the most practical way; but more and beyond that, I think it is bad policy to use the taxing power and dedicate it to the service of a particular bond, because if you follow that through you put the Treasury in a straitjacket; you have a situation where you have specific revenues for specific purposes, so that your general fund would be impaired, and you would find situations where you could not turn around.

Mr. BROWNELL. There have always been instances where the Congress has done that.

Senator CASE. It may be, but I think it is bad public policy.

Senator GORE. Could you give those instances, General?

Mr. BROWNELL. There is that wildlife fund that the Department of the Interior has.

Senator GORE. The duck stamp?

Mr. BROWNELL. The duck stamp is one; yes.
Senator CASE. That is a direct use.

is what I challenge all the way through.

This is not a direct use. That

Mr. BROWNELL. You mean the corporation that does these things? Senator CASE. I mean taking a general tax on gasoline, using the general tax on gasoline, and dedicating the revenue of that primarily to the service of an Interstate System, puts a tax on all users of gasoline. It is a general tax on motorists generally, whether they ever ride on the Interstate System or not.

Senator GORE. As a matter of fact, whether they are using gasoline in a factory, on a farm, or wherever they use it.

Senator CASE. It is not a specific user tax; it is an excise tax. It has to be a general tax to be properly an excise tax, and to dedicate it to a specific use-I challenge the propriety of that.

Whereas the only person that buys the duck stamp is a guy who is hunting. He might not get any ducks, but he has the license and the stamps which give him the permission to do so.

Mr. BROWNELL. I remember the debates in the legislature when I was a member between the farm-to-market roads, the feeder roads, et cetera; and it is a serious matter of public policy.

But I do not really feel that I am competent to answer that, Senator. It is a little outside my bailiwick.

Shall I proceed then, Mr. Chairman, with that new point, which involves section 208 of the bill?

Senator GORE. Yes.

Mr. BROWNELL. That section is the one which provides that if the Secretary of Commerce determines that a State is "unable to obtain possession and the right to enter upon and use" required rights-ofway, lands, or interests in lands "with sufficient promptness," he is authorized to acquire and take possession of such property "by purchase, donation, condemnation, or otherwise."

The cost incurred by the Secretary in taking such action

shall be payable out of the funds available to the Secretary for construction of projects on the Interstate System to the extent of 95 percent of the appraised value of such rights-of-way, or of the actual cost, whichever is lower.

The Secretary is also authorized to convey the rights-of-way, lands, and so forth, so acquired to the interested State, except that the outside 5 feet may only be conveyed to States which are able to and agree to control access.

I understand that some question has been raised by the provision authorizing the Secretary to pay up to 95 percent of the appraised value or of the actual cost. There is a constitutional obligation to pay just compensation for land taken by condemnation, not merely 95 percent. I believe that the bill was not intended to deprive condemnees of full compensation, but merely to establish a formula relating to con

tribution for acquisition costs as between the Federal Government and the States.

I understand that it is intended that the Secretary of Commerce would use his power under section 208 (c) to issue regulations which would require the States to pay the additional 5 percent, thus providing full compensation to the condemnee.

However, as drafted, I think the section is not as clear as it could be. In order to clarify it and prevent future litigation, in our opinion,. it should be redrafted so as to eliminate any implication that full compensation will not be paid.

A separate provision should then be inserted establishing a formula for sharing the acquisition costs between the Federal Government and the States. I do not feel qualified to suggest what that formula should be, but the Department of Justice would be glad to work out the legal details with your committee, Mr. Chairman, if you desire to have us do so.

Senator GORE. You do think as drafted then the bill is defective to that extent?

Mr. BROWNELL. Yes, sir.

Senator CASE. Mr. Chairman, for the benefit of the committee, do you not think it would be well to request that the Attorney General do that drafting so that we would have it before us?

Mr. BROWNELL. Thank you.

If any change is to be made in the section, I would include a provision for reimbursement to the Department of Justice for its costs in acquiring land interests for the States so as to lay at rest any doubts as to whether this is permitted by the provision in section 106 (a) of the bill authorizing the use of the services of other agencies of the United States on a reimbursable basis. That is just a little plug on the side, Mr. Chairman.

Senator GORE. Have you taken that up with Secretary Weeks? Has this been cleared by the Budget Bureau?

Senator MCNAMARA. And is it unlimited?

Mr. BROWNELL. Finally, the Secretary would be authorized by section 208 to take possession of real estate "prior to approval of title by the Attorney General."

I believe this provision would be unnecessary. No material delay is experienced in conforming with Revised Statute No. 355 (40 U. S. C. 255), which requires approval of title by the Attorney General prior to the expenditure of public moneys on land acquisitions.

Title approval by the Attorney General is rendered promptly upon filing a declaration of taking in accordance with the act of February 26, 1931 (40 U. S. C. § 258a), in connection with a condemnation proceeding.

Moreover, the existing statute authorizes the Attorney General to waive the requirement for his title opinion in connection with the acquisition or improvement of easements and rights-of-way when in his opinion such waiver will not jeopardize the interests of the United States, and further, in connection with title to easements and rightsof-way, to approve the title subject to such infirmities as in his opinion will not jeopardize the interests of the United States.

Before concluding, I would like to reiterate, I am not an expert on highways, and I claim no skills concerning roadbuilding. To the

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