[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[C. Provisions as "Changing Existing Law," Generally]
[Â§ 45. Housing and Public Works]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5951-5960]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
        C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
 
Sec. 45. Housing and Public Works

Restrictions on Use of Appropriation and Contract Authority

Sec. 45.1 In an appropriation bill a provision that the Public Housing 
    Administration shall not authorize the commencement of construction 
    during a certain year of more than 20,000 dwelling units was held 
    to be legislation, and in the same appropriation bill a series of 
    provisions (relating to the program of the Public Housing 
    Administration) (1) prohibiting the use of an appropriation in the 
    bill unless regulations are adopted restricting eligibility of 
    certain persons to be tenants of low-rent housing units, (2) 
    requiring that expenditures of such appropriation be subject to 
    audit by the Comptroller General, (3) prohibiting the authorization 
    of public housing unless the governing body of the locality agrees 
    to the completion thereof and prohibiting the continuation of 
    construction of public housing where a community by their 
    representatives or by ref

[[Page 5952]]

    erendum have indicated they do not want it, (4) requiring that the 
    records of expenditure on any public housing project shall be open 
    to examination by responsible community authorities, and (5) 
    prohibiting occupancy of certain housing by persons belonging to 
    organizations designated as subversive and requiring such 
    prohibition to be enforced by local housing authorities were also 
    held to be legislation.

    On Mar. 30, 1954,(18) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 8583), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
18. 100 Cong. Rec. 4123, 4124, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Annual contributions: For the payment of annual 
        contributions to public housing agencies . . . $63,950,000: 
        Provided, That except for payments required on contracts 
        entered into prior to April 18, 1940, no part of this 
        appropriation shall be available for payment to any public 
        housing agency for expenditure in connection with any low-rent 
        housing project, unless the public housing agency shall have 
        adopted regulations prohibiting [occupancy by] any person other 
        than a citizen of the United States. . . . Provided further, 
        That all expenditures of this appropriation shall be subject to 
        audit and final settlement by the Comptroller General of the 
        United States under the provisions of the Budget and Accounting 
        Act of 1921, as amended: Provided further, That unless the 
        governing body of the locality agrees to its completion, no 
        housing shall be authorized by the Public Housing 
        Administration, or, if under construction continue to be 
        constructed, in any community where the people of that 
        community, by their duly elected representatives, or by 
        referendum, have indicated they do not want it, and such 
        community shall negotiate with the Federal Government for the 
        completion of such housing, or its abandonment . . . and shall 
        agree to repay to the Government the moneys expended prior to 
        the vote or other formal action whereby the community rejected 
        such housing project for any such projects not to be completed 
        . . . Provided further, That the record of expenditure of the 
        Public Housing Administration and of the local housing 
        authority on any public housing project shall be open to 
        examination by the responsible authorities of any community in 
        which such project is located, or by the local public housing 
        authority, or by any firm of public accountants retained by 
        either of the foregoing . . . Provided further, That 
        notwithstanding the provisions of the United States Housing Act 
        of 1937, as amended, the Public Housing Administration shall 
        not, with respect to projects initiated after March 1, 1949, 
        authorize during the fiscal year 1955 the commencement of 
        construction of in excess of 20,000 dwelling units.

        Mr. [Abraham J.] Multer [of New York]: I tried to make a point 
    of order before, and I do want to make a point of order now, but my 
    inquiry is whether or not I should make my point of order against 
    each of the provisos in this section at this time or whether I 
    shall make the point of order against the paragraph as a whole?

[[Page 5953]]

        The Chairman: (19) the gentleman may make his point 
    of order after the paragraph has been read. . . .
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19. Louis E. Graham (Pa.).
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        Mr. [Howard W.] Smith of Virginia: Mr. Chairman, I make the 
    point of order against the language on page 31, beginning at line 
    12 and running through line 17. That is the provision with respect 
    to 20,000 housing units.
        Mr. Chairman, I am prepared to discuss the point of order if it 
    is going to be contested.
        Mr. Multer: Mr. Chairman, I have a point of order to a 
    paragraph prior to that one.
        The Chairman: The gentleman will state it. . . .
        Mr. [Charles A.] Halleck [of Indiana]: Should not the point of 
    order that has been made be ruled upon before we take up any other 
    points of order?
        The Chairman: The Chair will consider all points of order 
    against the paragraph now. They may be stated and we may consider 
    them at this time.
        Mr. Multer: I make the point of order against the provisos 
    beginning on page 29, lines 12, and running to page 31, line 11 on 
    the ground that each of those provisos is legislation on an 
    appropriation bill.
        The Chairman: Does the gentleman from California desire to be 
    heard on these points of order?
        Mr. [John] Phillips [of California]: Mr. Chairman, may I take 
    them up in the order in which they were made.
        The effect of the point of order made against the proviso on 
    page 31, line 12 is this, as the committee understands it. It is to 
    remove the limitation and leave the opinion of the Comptroller 
    General to stand that there could then be built no more than 33,000 
    or 34,000 houses--whatever the exact number is--that were 
    contracted for prior to the adoption of the appropriation bill of 2 
    years ago for the fiscal year 1953. We concede the point of order. 
    . . .

        Mr. [Sidney R.] Yates [of Illinois]: I understand that the 
    chairman of our subcommittee was addressing himself to the point of 
    order made by the gentleman from Virginia [Mr. Smith], to the 
    language appearing on page 31 between lines 12 and 17. As I 
    understand that language, it is a limitation upon the appropriation 
    that is contained in this bill as to the amount of money that may 
    be used for the purpose of constructing housing units, and to that 
    extent it is perfectly proper. . . .
        Mr. Smith of Virginia: Mr. Chairman, I think it is necessary 
    under the circumstances to go back to the previous bill, of last 
    year, on this subject and the limitation contained therein. My 
    point of order goes to the question that the provision in this bill 
    is legislation more than it is a limitation. The point of order is 
    directed at the point that this is legislation on an appropriation 
    bill.
        What happened about it is that the Housing Act was passed as an 
    amendment to the old Housing Act of 1949, which authorized the 
    construction of a certain number of units of public housing per 
    annum. That was a matter of great controversy through the years. 
    Ultimately the thing came to a head in the independent offices 
    appropriation bill for the fiscal year ending June 30, 1954. In 
    that independent offices appropriation bill was contained this pro

[[Page 5954]]

    vision of law, which is the law upon the subject of public housing 
    today. That provision in last year's independent offices 
    appropriation bill I would like to read for the Record. It states:

            The Public Housing Administration shall not, after the date 
        of approval of this act, enter into any new agreements, 
        contracts, or other arrangements, preliminary or otherwise, 
        which will ultimately bind the Public Housing Administration 
        during fiscal year 1954 or for any future years with respect to 
        loans or annual contributions for any additional dwelling units 
        or projects unless hereafter authorized by the Congress to do 
        so.

        That is all of the quotation that is pertinent to the question 
    which I raise.
        In other words, the law is that not a single unit of public 
    housing can be contracted for until it is authorized by the 
    Congress. An authorization does not mean authorization in an 
    appropriation bill. So, this being an appropriation bill, and the 
    provision to which I have raised the point of order being 
    legislation which changes existing law under last year's act, it is 
    subject to the point of order.
        Mr. Yates: Mr. Chairman, if I may be heard in reply to the 
    gentleman in opposition to the point of order, the gentleman from 
    Virginia is correct with respect to the provisions of the 
    appropriation bill last year. However, I respectfully direct the 
    attention of the Chair to that provision, and I reread it, which 
    states, ``after the date of approval of this act, enter into any 
    new agreements, contracts, or other arrangements, preliminary or 
    otherwise.''
        Mr. Chairman, the units that are provided for in this act are 
    not the subject of any new agreements that were entered into 
    subsequent to this provision. They are units which were authorized 
    under previous provisions of the law and are, therefore, a proper 
    subject for this appropriation bill.
        Mr. Smith of Virginia: You concede that this changes the law, 
    do you not?
        Mr. Yates: I concede it changes the law from the date of 
    enactment of the independent offices appropriation bill of 1954.
        Mr. Smith of Virginia: That is the law today so you are 
    changing the law without legislative authorization.
        Mr. Yates: I conceded it was the law with respect to new 
    contracts. I did not concede it was the law with respect to other 
    contracts.
        Mr. Smith of Virginia: But does it change the law?
        Mr. Yates: Not with respect to units not the subject of the 
    appropriations bill. . . .
        The Chairman: The Chair is ready to rule.
        The Chair has in mind Public Law 176 of the 83d Congress which 
    has been referred to, and the sections which have been quoted here. 
    The Chair also has in mind the provisos and will pass upon the 
    point of order raised by the gentleman from Virginia [Mr. Smith] 
    and the points of order raised by the gentleman from New York [Mr. 
    Multer] beginning on page 29, line 12 and extending to the end of 
    the paragraph. In the opinion of the Chair, the language is purely 
    legislation on an appropriation bill and the Chair sustains the 
    points of order. . . .
        [Parliamentary inquiries were then made:]

[[Page 5955]]

        Mr. [Jere] Cooper [of Tennessee]: Mr. Chairman, a parliamentary 
    inquiry.
        The Chairman: The gentleman will state his parliamentary 
    inquiry.
        Mr. Cooper: Did the Chair sustain all points of order that had 
    been made or just the point of order made by the gentleman from 
    Virginia?
        The Chairman: The Chair sustained the point of order made by 
    the gentleman from Virginia and those made by the gentleman from 
    New York [Mr. Multer]. . . .
        Mr. [John W.] McCormack [of Massachusetts]: Mr. Chairman, in 
    reference to the point of order raised by the gentleman from 
    Virginia, is the ruling of the Chair predicated upon the fact that 
    the Chair is of the opinion that there is no authorization in the 
    law at the present time for the appropriation or for money for the 
    construction of housing units?
        The Chairman: No; the Chair did not so rule. The Chair held 
    that the language of the bill itself is legislation.
        Mr. McCormack: In other words, Mr. Chairman, the gentleman from 
    Massachusetts is seeking for the purposes of the record and also in 
    view of other considerations, for example, the bill which is coming 
    up tomorrow, to try to ascertain the basic thought in the mind of 
    the Chairman. The gentleman from Virginia made a point of order 
    based upon certain provisions in the appropriation bill of last 
    year, a rider so-called. The gentleman from Massachusetts in his 
    parliamentary inquiry is seeking to find out from the Chairman if 
    the reason for sustaining the point of order made by the gentleman 
    from Virginia [Mr. Smith] is that the rider of last year repealed 
    any authorization for appropriations for the construction of 
    housing projects.
        The Chairman: The Chair has held that the proviso, the very 
    language itself, which is as follows:

            That notwithstanding the provisions of the United States 
        Housing Act of 1937, as amended, the Public Housing 
        Administration shall not, with respect to projects initiated 
        after March 1, 1949, (1) authorize during the fiscal year 1954 
        the commencement of construction of in excess of 20,000 
        dwelling units--
    is on its face legislation.

        Mr. McCormack: Does the Chairman hold that that is a repeal of 
    any previous authorization of law?
        The Chairman: No; the Chair is not ruling on that. The Chair is 
    ruling that this language on its face is legislation on an 
    appropriation bill.

Total Number of Housing Units in Current and Future Fiscal Years

Sec. 45.2 To an appropriation bill an amendment providing that 
    notwithstanding certain provisions of law the Public Housing 
    Administration shall not authorize the commencement of construction 
    of more than 35,000 dwelling units in a certain year, nor more than 
    35,000 units for each of the three succeeding years unless a 
    greater number is hereafter authorized by Congress was held to be 
    legislation.

[[Page 5956]]

    On Mar. 30, 1954,(20) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 8583), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
20. 100 Cong. Rec. 4124, 4125, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Sidney R.] Yates (of Illinois): Page 
    29, after line 12, insert ``Provided further, That notwithstanding 
    the provisions of the United States Housing Act of 1937, as 
    amended, the Public Housing Administration shall not, with respect 
    to projects initiated after March 1, 1949, authorize during fiscal 
    year 1955 the commencement of construction of in excess of 35,000 
    dwelling units and (2) after the date of approval of this act, 
    enter into any agreement, contract, or other arrangement which will 
    bind the Public Housing Administration with respect to loans, 
    annual contributions, or authorizations for commencement of 
    construction for dwelling units aggregating in excess of 35,000 
    units each year during fiscal years 1956, 1957, and 1958, unless a 
    greater number of units is hereafter authorized by the Congress.''
        Mr. [John] Phillips [of California]: Mr. Chairman, I make the 
    point of order that the amendment offered by the gentleman from 
    Illinois (Mr. Yates) is out of order. The Chair has already ruled 
    that the first part of the amendment just read is legislation, and 
    the balance of the amendment is obviously legislation, going beyond 
    the limits of the provision upon which the Chair has already ruled. 
    It changes existing law. . . .
        The Chairman: (1) The Chair is prepared to rule. The 
    Chair understands that part of the language is the same as that 
    upon which the Chair has already ruled and has been stricken out, 
    and the rest of the language on its face is legislation. The Chair 
    sustains the point of order.
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 1. Louis E. Graham (Pa.).
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Restriction of Contract Authority

Sec. 45.3 A provision in a general appropriation bill changing existing 
    law by restricting the contract authority of the Housing and Home 
    Finance Administrator under the Housing Act of 1961, to an amount 
    ``within the limits of appropriations made available therefor,'' 
    was conceded to be legislation and was ruled out on a point of 
    order.
    On Sept. 15, 1961,(2) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
9169), a point of order was raised against the following provision:
---------------------------------------------------------------------------
 2. 107 Cong. Rec. 19730, 87th Cong. 1st Sess.
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                  Low-Rent Housing Demonstration Programs

        For low-rent housing demonstration programs as authorized by 
    section 207 of the Housing Act of 1961 (75 Stat. 165), $2,000,000, 
    of which not to exceed $20,000 shall be available for 
    administrative expenses, and such sec

[[Page 5957]]

    tion 207 is hereby amended by inserting after the word 
    ``authorized'' the phrase ``within the limits of appropriations 
    made available therefor''.
        Mr. [Albert] Rains [of Alabama]: Mr. Chairman, I rise to make a 
    point of order.
        The Chairman: (3) the gentleman from Alabama will 
    state his point of order.
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 3. Oren Harris (Ark.).
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        Mr. Rains: Mr. Chairman, I make a point of order against the 
    language, the two words ``low-rent'' in line 20 on page 14, and on 
    line 22, ``$2,000,000, of which'', and line 1 on page 15, beginning 
    with the words ``and such section 207'' down to and including the 
    rest of the paragraph.
        Mr. Chairman, I make only the remark that this constitutes 
    legislation on an appropriation bill. . . .
        Mr. [Albert] Thomas [of Texas]: Mr. Chairman, the gentleman is 
    right. But the committee did not want to be accused of tearing up 
    the program as unnecessary; I will use that word. That is a polite 
    word. . . .
        Mr. Chairman, I think the point of order is good, and I join my 
    friend, the gentleman from Alabama [Mr. Rains] and make a point of 
    order against the entire paragraph.
        The Chairman: The point of order is sustained.

Authorizing and Directing Agency Action

Sec. 45.4 In a general appropriation bill a provision requiring a 
    government agency which is selling mortgages to afford the 
    mortgagor an opportunity to buy the mortgage at the same discount 
    offered to a financial institution was conceded and held to be 
    legislation.

    On Mar. 31, 1954,(4) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 8583), the following point of order was raised:
---------------------------------------------------------------------------
 4. 100 Cong. Rec. 4258, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Jesse P.] Wolcott [of Michigan]: Mr. Chairman, I make the 
    point of order with respect to the language on page 59, from the 
    proviso in line 9 down to and including line 17, as being 
    legislation on an appropriation bill. . . .
        The Chairman: (5) Without objection the Clerk will 
    read the language referred to.
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 5. Louis E. Graham (Pa.).
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        The Clerk read as follows:

            Provided further, That the Federal National Mortgage 
        Association is authorized and directed prior to the conclusion 
        of any sale of a mortgage at a discount to a financial 
        institution to offer the mortgage to the mortgagor at the same 
        discount, and that an offer shall be considered properly made 
        when addressed by registered letter to the mortgagor, who may 
        tender the purchase price, less discount, to the Federal 
        National Mortgage Association within 2 weeks from date of 
        receipt of such offer.

        The Chairman: Does the gentleman from California [Mr. Phillips] 
    desire to be heard on this point of order?

[[Page 5958]]

        Mr. [John] Phillips: No, Mr. Chairman. We concede the point of 
    order.
        The Chairman: In the opinion of the Chair, this is legislation 
    upon an appropriation bill, and the point of order is sustained.

Delegation of Authority of Federal Works Administrator

Sec. 45.5 A provision in a general appropriation bill permitting the 
    Federal Works Administrator to delegate to the principal 
    administrative officer of that activity the authority to make 
    appointments of certain personnel was conceded and held to be 
    legislation on an appropriation bill and not in order.

    On Feb. 8, 1945,(6) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 1984), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 6. 91 Cong. Rec. 941, 942, 79th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Public works advance planning: Toward accomplishing the 
        provisions of title V of the War Mobilization and Reconversion 
        Act of 1944, $5,000,000, to be immediately available and to 
        remain available until expended, of which not to exceed 4 
        percent shall be available for administrative expenses 
        necessary therefor, to be immediately available and to remain 
        available until June 30, 1946 . . . Provided, That the Federal 
        Works Administrator may delegate to the principal 
        administrative officer of this activity the authority to make 
        appointments of personnel hereunder.

        Mr. [Francis H.] Case of South Dakota: Mr. Chairman, a point of 
    order.
        The Chairman: (7) The gentleman will state his point 
    of order.
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 7. William M. Whittington (Miss.).
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        Mr. Case of South Dakota: Mr. Chairman, I make a point of order 
    against the paragraph on the ground it contains legislation in an 
    appropriation bill. I invite the attention of the Chairman 
    particularly to the language in lines 14 and 15, page 18, which 
    says:
        to be immediately available and to remain available until 
        expended.

        And also to the language beginning in line 24 saying:

            Provided, That the Federal Works Administrator may delegate 
        to the principal administrative officer of this activity the 
        authority to make appointments of personnel hereunder.

        I direct the point of order to the entire paragraph.
        The Chairman: Does the gentleman from Virginia desire to be 
    heard on the point of order?
        Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I concede 
    the point of order.
        The Chairman: The point of order is sustained.

Use of Water Conditioned Upon Compliance With State Compact

Sec. 45.6 Language in a general appropriation bill providing

[[Page 5959]]

    that the use of water from a project for which an appropriation is 
    being made shall be contingent upon compliance with a certain state 
    compact was held to be legislation and not in order.

    On May 14, 1937,(8) during consideration in the 
Committee of the Whole of the Interior Department appropriation bill 
(H.R. 6958), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 8. 81 Cong. Rec. 4607, 4612, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Gila project, Arizona, $1,250,000: Provided, That any right 
        to the use of water from the Colorado River acquired for this 
        project and the use of the lands and structures for the 
        diversion and storage of the same shall be subject to and 
        controlled by the Colorado River Compact, as provided in 
        section 8 of the Boulder Canyon Project Act, approved December 
        21, 1928 (45 Stat. 1062), and section 2 of the Rivers and 
        Harbors Act of August 30, 1935 (49 Stat. 1040);

        Mr. [Lawrence] Lewis of Colorado: Mr. Chairman, I make a point 
    of order against the paragraph beginning on page 76, line 20, down 
    to the bottom of the page and continuing on down through and 
    including line 3, on page 77, on the ground that this item of 
    appropriation has not been authorized by law, and, further, that it 
    is contrary to law. No authorization has been enacted for this 
    item. . . .
        The Chairman: (9) he Chair is prepared to rule. . . 
    .
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 9. Jere Cooper (Tenn.).
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        The Chair also invites attention to the fact that the language 
    that was called to the attention of the gentleman from Nevada [Mr. 
    Scrugham] undoubtedly has some bearing upon the question as to 
    whether or not this is legislation on an appropriation bill, 
    especially the language carried in the proviso, which was recently 
    discussed with the gentleman from Nevada. The gentleman from Nevada 
    quite frankly replied to the inquiry of the Chair, that the purpose 
    of including this language was to force compliance with a certain 
    State compact.
        Therefore, the Chair feels there could be no doubt that the 
    effect of the inclusion of this language would be that of 
    legislation on an appropriation bill.

Storage Buildings as Adjunct to Forest Road Construction

Sec. 45.7 An appropriation for the construction of buildings for 
    storage of equipment used for forest roads and trail construction 
    and including a stated limit of cost for construction of any such 
    building was held unauthorized by law.

    On Mar. 28, 1939,(10) the Committee of the Whole was 
considering H.R. 5269, an Agriculture Department appropriation. At one 
point the Clerk read as follows,

[[Page 5960]]

and proceedings ensued as indicated below:
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10. 84 Cong. Rec. 3458, 76th Cong. 1st Sess.
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                          Forest Roads and Trails

        For carrying out the provisions of section 23 of the Federal 
    Highway Act approved November 9, 1921 (23 U.S.C. 23), including not 
    to exceed $59,500 for departmental personal services in the 
    District of Columbia, $10,000,000, which sum consists of the 
    balance of the amount authorized to be appropriated for the fiscal 
    year 1939 by the act approved June 16, 1936 (Stat. 1520), and 
    $3,000,000 of the amount authorized to be appropriated for the 
    fiscal year 1940 by the act approved June 8, 1938 (52 Stat. 635), 
    to be immediately available and to remain available until expended: 
    Provided, That this appropriation shall be available for the 
    rental, purchase, or construction of buildings necessary for the 
    storage of equipment and supplies used for road and trail 
    construction and maintenance, but the total cost of any such 
    building purchased or constructed under this authorization shall 
    not exceed $7,500.(11)
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11. The latter provision could be considered an interference with 
        executive discretion, therefore legislation.
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        Mr. [John] Taber [of New York]: Mr. Chairman, I make the point 
    of order against the paragraph that this is legislation on an 
    appropriation bill providing for the construction of a building at 
    a limit beyond that authorized by law.
        The Chairman: (12) Does the gentleman make the point 
    of order against the proviso or against the entire paragraph?
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12. Wright Patman (Tex.).
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        Mr. Taber: Against the paragraph.
        The Chairman: Does the gentleman from Missouri desire to be 
    heard on the point of order?
        Mr. [Clarence] Cannon of Missouri: I may say, Mr. Chairman, 
    that this provision in the bill is the only limiting authority. If 
    the gentleman can cite us to some other authority establishing the 
    limitation, I should be pleased to have the citation. There is no 
    other limitation, Mr. Chairman, and the point of order is not well 
    taken.
        Mr. Taber: There is no authorization for it at all.
        The Chairman: The point of order is sustained.